Malkiat Singh vs State of Haryana

N.K. Agrawal, J.

This is a petition by Malkiat Singh under Section 482, Criminal Procedure Code, (hereinafter "the Code"), for quashing the criminal complaint filed under Section 182 of Indian Penal Code by S.H.O., P.S. Thanesar Sadar, District Kurukshetra, in the Court of Additional Chief Judicial Magistrate, Kurukshetra, and the order of the learned Magistrate dated July 14, 1990.

The petitioner had sent a complaint on August 31, 1989 to the Superintendent of Police, Kurukshetra, against certain persons with serious allegations. The petitioner requested the Superintendent of Police to register against those persons offences under Sections 302, 148, 149, 120B and 201 IPC and investigation was thereupon made into the complaint by Inspector Ram Nath. Statements of witnesses were recorded. It was found that the complaint (Calendra), under Section 182 IPC, was filed in the Court by Sub Inspector Sohan Singh against Malkiat Singh on March 13, 1990. The Additional Chief Judicial Magistrate, Kurukshetra, summoned Malkiat Singh and, after hearing him, passed order on July 14, 1990 for proceeding further in the matter.

Learned counsel for the petitioner has argued that no F.I.R. was registered by the police under Section 154 of the Code on the complaint sent by Malkiat Singh to the Superintendent of Police, Kurukshetra. Investigation made by the police officer was, therefore, not in accordance with the procedure laid down in the Code. The police officer had no authority, power or jurisdiction to make any regular investigation into the offences mentioned in the complaint filed by Malkiat Singh unless the F.I.R. was recorded under Section 154 of the Code. The police officer made a private investigation, not prescribed in law. It was a case relating to cognizable offences and it was incumbent upon the police to register F.I.R. before initiating investigation under the Code.

It is also argued by the learned counsel for the petitioner that no police report, under Section 173 of the Code was filed in the Court, showing whether offences were made out or not, as alleged in the complaint filed by Malkiat Singh. Moreover, conclusion drawn by the Police officer, that the allegations made by Malkiat Singh were false, without jurisdiction and bad in law in the absence of any order by the Magistrate on the result of investigation. Allegations were treated by the police officer as false without following due procedure laid down in the Code regarding the registration of a criminal case and the investigation into it by the police. It is further argued that the complaint was sent by Malkiat Singh to the Superintendent of Police, Kurukshetra, but the present case, by way of Calendra under Section 182 I.P.C. has been filed against Malkiat Singh by S.H.O. and not by the Superintendent of Police.

On a consideration of the matter, it is found that the procedure adopted by the police officer in the matter of investigation is in contravention of the provisions of the Code. If the police officer intended to make any investigation into the offences mentioned in the complaint, it was necessary to register an F.I.R. As has been seen, the offences in the complaint were under Sections 302, 148, 149 120B and 201 I.P.C. Section 154 of the Code requires that a report shall be registered by the police in relation to any cognizable offence. The entire procedure adopted by the police officer is without jurisdiction and in utter violation of the provisions of the Code. Even after completing the investigation, the police officer did not choose to file a police report under Section 173 of the Code.

It has been held by the Bombay High Court in Krishna Tukaram Jadhav and another v. The Secretary to the Chief Minister, Bombay State, A.I.R. 1955 Bombay 315, that it is necessary that the complaint is filed by the public servant concerned. In the present case in hand, the complaint has not been filed by the Superintendent of Police but by the S.H.O., though Malkiat Singh had sent his complaint to the Superintendent of Police.

In Davinder Singh Kapoor v. State of Punjab and Anr., 1991(2) C.L.R. 194, a similar matter, under Section 182 IPC, came up for consideration before this Court. It was held that cognizance of the offence under Section 182 IPC, cannot be taken by the Court except upon complaint by the public servant concerned. Similar view was reiterated in Harbans Singh v. State of Punjab and anr., 1991(3) Recent Criminal Reports 113 .

In the light of the above discussion, the complaint (Calendra), filed against the petitioner under Section 182 IPC is found to be not maintainable. The investigation made by the police officer and the conclusion drawn by him is found to be without jurisdiction and contrary to law. The order of the learned Magistrate dated July 14, 1990 is also unjustified and bad in law.

The petition is, therefore, allowed. The complaint and also the impugned order dated July 14, 1990 are quashed.