Kulwant Kaur vs State of Punjab

N.C. Khichi, J. (oral)

Smt. Kulwant Kaur has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the Calendra/complaint dated 16.9.1995 (Annexure P.1) under Section 182 of the Indian Penal Code, initiated by the Station House Officer of Police Station Sadar, Fazilka, and the subsequent proceedings thereto, pending in the Court of Judicial Magistrate Ist Class, Fazilka.

Briefly, the facts of the case as stated in the petition are;

On 13.12.1994, at about 8.30 in the morning, Smt. Kulwant Kaur, petitioner was coming to her house from the house of her fatherinlaw Kartar Singh and when she reached near the house of one Labha son of Sohan Lal, Kundal Lal son of Guran Ditta, Ashok Kumar son of Khan Chand, Subhash Chander son of Lal Chand, Sat Pal son of Guran Ditta, Chhinda son of Bakhtaur Singh and Daya Rani daughter of Guran Ditta, were found standing in the way. On seeing the petitioner, on the asking of Daya Rani, all these persons encircled her and pulled her in a room in the house of Kundal Lal. Thereafter, Daya Rani went out of the house whereas Kundal Lal, Ashok Kumar, Subhash Chander Sat Pal and Chinda bolted the door of the room from inside and broke open the string of her Salwar forcibly and made her naked. First of all Kundal Lal committed sexual intercourse with her. Thereafter Satpal, Ashok Kumar, Subhash Chander and Chhinda committed sexual intercourse with her onebyone against her wishes. Due to the noise raised by her, the accused persons left her. When she came out of the room Gurdip Singh, her Devar and Mangat Ram son of Khazan Chand were found present. The petitioner narrated the entire occurrence to them as well as to Gurdip Singh son of Dara Singh. Gurdip Singh son of Dara Singh and her brotherinlaw accompanied her to Police Station, Khui Khera and narrated the entire occurrence to the police. A written application was also given and the police asked her to get medicolegal examination done by taking orders of the Court. Thereafter, the petitioner alongwith her brotherinlaw and Gurdip Singh son of Dara Singh, went to he Courts at Fazilka, on the same day and moved an application in the Court of Shri H.P. Singh, Judicial Magistrate Ist Class. She was medicolegally examined by a lady doctor at Civil Hospital, Fazilka, under the orders of Shri H.P. Singh, Judicial Magistrate Ist Class. Information regarding this was given to the police. Next day, Inspector of the Police Station, Khui Khera, came to the village of the petitioner and assured to take action against the accused persons. It is further alleged that the police did not arrest or produce the accused in the Court, even after lodging the First Information Report under Sections 376/148/149 of the Indian Penal Code. The police started investigation and during investigation, the Station House Officer, respondent No. 2, under the influence of the accused persons, did not arrest them and rather colluded with them for some extraneous considerations. The police instead of taking any action against the accused rather made a report to the ilaqa Magistrate under Section 182 of the Indian Penal Code on the allegation that she made a false statement against the accused.

It is further alleged that since no action was taken by the police, she filed a criminal complaint before the Judicial Magistrate Ist Class, Fazilka, under Sections 366/376/148/149 IPC against the aforesaid accused persons on 18.1.1995 and the learned trial Magistrate after recording preliminary evidence, ordered summoning of the accused except Smt. Daya Rani, through nonbailable warrants vide summoning order dated 30.9.1995 (Annexure P.2). It is further alleged that the application for grant of anticipatory bail of the accused was declined by the learned Addl. Sessions Judge, Ferozepur. The accused moved bail application before the High Court but their arrest was not stayed. The police did not arrest the accused and failed to execute the non bailable warrants. Consequently, the Deputy Superintendent of Police, Fazilka, was summoned in the Court and he assured the Court that the orders Annexure P.2 will be executed before the date and thereafter the accused were arrested.

On receipt of notice of motion, the respondents filed reply in the form of affidavit of Ram Singh, Asstt. Superintendent of Police, Fazilka, and controverted the allegations made in the petition. It has been pleaded that in fact on 13.12.1994, the petitioner got herself medically examined, alleging the rape committed upon her and ASI Gurbhaj Singh recorded her statement and a case FIR No. 233 dated 13.12.1994, under Sections 376, 148, 149 IPC was registered at Police Station Sadar, Fazilka. The case was investigated by Sh. Kanwaljit Singh Dhillon. Superintendent of Police, Abohar, who came to the conclusion that the FIR lodged by the petitioner was found to be false. Consequently, the proceedings under Section 182, IPC were initiated against Kulwant Kaur, for lodging a false report by way of filing complaint under Section 182 I.P.C.

I have heard the learned counsel for the parties at length. At the outset it has been submitted by Shri Munjal that the petitioner has filed a complaint in the Court of Ilaqa Magistrate on the same facts and allegations on which the First Information Report was registered and the case has been committed against the accused persons to the Court of Sessions Judge for their trial and therefore, the complaint under Section 182 IPC against the petitioner cannot proceed. There appears to be force and substance in this contention. In Banta Singh v. State of Haryana, 1995(3) RCR 133 , the First Information Report lodged by the petitioner was found to be false during investigation and he was prosecuted for an offence under Section 182 IPC. The petitioner filed a complaint on the same facts and allegations on which he had made a statement before the police. The learned Magistrate had summoned the accused for various offences under the Indian Penal Code. It was held that the prosecution of the petitioner under Section 182 IPC during the pendency of his complaint, is evidently an abuse of the process of the Court and the proceedings were quashed. The decision rendered by the apex Court in State of Punjab v. Brij Lal Palta, AIR 1969 SC 355, was followed. In Brij Lal Palta''s case (supra), it was held that once a complaint filed by the informant which is based on the same facts and allegations on which the first information was registered, is being proceeded with, it is not open to a Magistrate to take cognizance of any offence alleged to have been committed under Section 211, Indian Penal Code, unless there has been proper compliance with the provisions of Section 195(1)(b) of the Code of Criminal Procedure. It was further held that it is true that the offence under Section 182, Indian Penal Code, is distinct from the one under Section 211, Penal Code, though the latter is more serious and may include the offence under the former section. The Magistrate can take cognizance of an offence under Section 182 on a complaint in writing of the Police Officer by virtue of the provision contained in Section 195(1)(a) of the Code of Criminal Procedure. But it would virtually lead to the circumvention of the provisions of Section 195(1)(b) if the proceedings under Section 182 can continue where the offence disclosed is covered by Section 211, Penal Code and a complaint is pending which has been filed by the informant on the same facts and allegations as were contained in his first information report. Similarly on a parity of reasoning with regard to the offence under Section 211, no cognizance can be taken by the Magistrate for the alleged offence under Section 193 Indian Penal Code which is one of the sections mentioned in Section 195(1)(b), Criminal Procedure Code.

Thus is apparent that if the case under Section 182, IPC, is allowed to proceed, a decision in the said case would tantamount to prejudging the complaint filed by the petitioner. Thus prosecution of the petitioner under Section 182, IPC, during the pendency of her complaint on the same facts and allegations as mentioned in the First Information Report, would be an abuse of the process of the Court.

In view of what has been stated above, this petition succeeds and the Calendra/complaint dated 16.9.1995 (Annexure P.1) and subsequent proceedings arising out therefrom now pending in the Court of Judicial Magistrate Ist Class, Fazilka, are hereby quashed.