Rita Walia And Another vs State Of Punjab And Others

Rajesh Bhardwaj, J

Present petition has been filed praying for quashing of rapat No.10, dated 11.06.2020, under Sections 182, 193, 211 IPC, registered at Police Station Division No.5, Ludhiana arising out of FIR No.194, dated 30.07.2011, under Sections 323, 341, 294, 506, 34 of IPC, registered at Police Station Division No.5, Ludhiana as well as order dated 29.05.2019 passed in complaint No.3026 dated 04.07.2017 recommending FIR against petitioners under Sections 182, 193, 211 IPC by the Commission of Enquiries in complaint instituted by Kamaljeet Singh (respondent No.2) and order dated 27.10.2021 passed by the Court of ACJM, Ludhiana summoning the petitioners to face trial under Sections 182, 193, 211 IPC.

Learned senior counsel appearing on behalf of the petitioners has vehemently contended before this Court that the impugned Rapat in FIR No.194, dated 30.07.2011, under Sections 323, 341, 294, 506, 34 of IPC and the orders dated 29.05.2019 and 27.10.2021 are totally unsustainable in the eyes of law. He has submitted that at the behest of the petitioners, FIR No.194, dated 30.07.2011, under Sections 323, 341, 294, 506, 34 of IPC was lodged, however, on conclusion of the trial, the accused, namely, Narinderjit Singh Walia and Kamaljit Singh Walia (respondent No.2) were acquitted by the learned trial Court vide order dated 01.09.2016. He has submitted that the acquittal of the accused was primarily for the reason that the prosecution failed to examine even a single witness to prove the guilt of the accused. He has submitted that it is apparent that the acquittal was not based on the merits of the case as no witness was examined by the prosecution. He has submitted that the Government of Punjab vide its order dated 21.08.2019 had constituted the commission under the Enquiry Commission for conducting the inquiry in the pending cases especially wherein the FIRs were lodged on the basis of false allegations. He has submitted that as per Section 4(C) of this Enquiry Commission, the proceedings under Section 182 of IPC could be initiated against the complainant in case the FIR lodged was found to be false by the Competent Court of Jurisdiction. He has thus submitted that the jurisdiction of the Enquiry Commission was well defined, however after the acquittal of respondent No.2 in the FIR lodged by the petitioners, he filed a compliant for initiating the proceedings against the petitioner for the offence punishable under Sections 182, 193, 211 of IPC. The learned Enquiry Commission vide its impugned order dated 29.05.2019 had recommended the registration of FIR under Sections 182, 193, 211 of IPC. He has submitted that the recommendation by the Commission of registration of FIR was totally beyond its jurisdiction as is evident from the perusal of Section 4(C) of the Enquiry Commission of the order passed by the State on 21.08.2019. He has further submitted that no offence under Sections 182, 193, 211 IPC is made out in view of the provisions of Section 195 of Cr.P.C. He has thus submitted that the prosecution under Section 182 IPC can be initiated by written complaint by the concerned public servant. He has submitted that similarly, no prima facie offence under Sections 193 and 211 IPC is made out.

Learned senior counsel for the petitioner has further submitted that the complaint has been filed by respondent No.2 on the basis of the recommendation made by the Enquiry Commission, which is totally beyond its jurisdiction. Hence, registration of the Kalandra/FIR against the petitioner and the impugned orders dated 29.05.2019 and 27.10.2021 are totally unsustainable in the eyes of law and thus, the same deserves to be set aside. To buttress his arguments, he has relied upon the judgments passed by the Hon'ble Supreme Court in 'Santosh Bakshi vs. State of Punjab and others' 2014(4) RCR (Criminal) 175; the Hon'ble Rajasthan High Court in 'Rekha Bano vs. State of Rajasthan through PP and another' 2019(2) Cr. L.R. (Raj.) 997; the Hon'ble Kerala High Court in 'Jose John vs. K. C. Kuruvilla' 1996(2) Crimes 46 and by this Hon'ble Court in 'Mandeep Singh vs. State of Punjab and others' CWP-2385-2018.

Learned counsel for the State as well as learned counsel for respondent No.2 have vehemently opposed the submissions made by learned senior counsel for the petitioners. It has been submitted that on the recommendation of the Enquiry Commission, it was found that the offences under Sections 182, 193, 211 IPC are non-cognizable, hence, the FIR could not be registered against the petitioner. However, the Rapat was maintainable and thus, the same was rightly registered. They have submitted that a prima facie case as alleged was found and thus, the petitioners have been rightly summoned vide impugned order dated 27.10.2021. They have submitted that the present petition, being devoid of any merit, deserves to be dismissed.

The Court has heard learned counsel for the parties and perused the record with their able assistance.

The precise issue involved in the present case is that whether the impugned Rapat registered and the summoning order are sustainable in the eyes of law. For resolving the controversy, the appreciation of the offences under Sections 182, 193, 211 IPC are relevant, which read as under:"

Section 182 IPC:

False information, with intent to cause public servant to use his lawful power to the injury of another person.

Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant-

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Illustrations

(a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty of neglect of duty or misconduct, knowing such information to be false, and knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has committed the offence defined in this section.

(b) A falsely informs a public servant that Z has contraband salt in a secret place knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z's premises, attended with annoyance to Z. A has committed the offence defined in this section.

(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assistants, but knows it to be likely that in consequence of this information the police will make enquiries and institute searches in the village to the annoyance of the villages or some of them. A has committed an offence under this section.

Section 193 IPC: Punishment for false evidence.

Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine,and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Explanation 1.- A trial before a Court-martial is a judicial proceeding.

Explanation 2.- An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.

Illustration

A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.

Explanation 3.- An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.

Illustration

A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence."

False charge of offence made with intent to injure.-

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Section 195 Cr.P.C. is also relevant for consideration of the case, which reads as under:

Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance -

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate;

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii),

[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] [Substituted by Act 2 of 2006, Section 3 for "except on the complaint in writing of that Court, of of some other Court to which that Court is subordinate" (w.e.f. 16-4-2006).]

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint :

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court and includes a Tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinarily original civil jurisdiction within whose local jurisdiction such Civil Court is situate:

Provided that -

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

[195-A. Procedure for witnesses in case of threatening, etc. - A witness or any other person may file complaint in relation to an offence under Section 195-A of the Indian Penal Code (45 of 1860).] [Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 17.]"

The Rapat has been registered primarily on the issuance of the recommendation by the Enquiry Commission. Section 4(C) of the order issued by the Government of Punjab dated 21.08.2019 would read as follows:

"(C) If the FIR has been found to be false by the Competent Court of Jurisdiction, the proceedings under Section 182 IPC should be initiated against the complainants as per law.

It is clarified that as far as initiating the criminal proceedings against the persons, who were responsible for getting false FIR registered or who registered the false FIR, is concerned the action is to be taken strictly as per the provisions of law in general and section 182 of IPC in particular."

Evidently, the petitioner has lodged the case bearing FIR No.194, dated 30.07.2011, under Sections 323, 341, 294, 506, 34 of IPC, registered at Police Station Division No.5, Ludhiana against respondent No.2 and Narinderjit Singh Walia. Thus, on conclusion of the trial, both the accused were acquitted by the learned trial Court. A perusal of the order dated 29.05.2019 would show that the prosecution did not examine any witness and thus, the trial Court acquitted both the accused. The acquittal order passed would reveal that the learned trial Court had given no observation regarding the falsity of the FIR or granting any compensation.

Conjointly reading, the acquittal order passed in the light of the order passed by the Government of Punjab in constituting the Enquiry Commission, on the anvil of the law settled, this Court is of the opinion that the recommendation made by the learned Enquiry Commission was beyond its jurisdiction. The issue involved in the present case has been appreciated by this Court in 'Mandeep Singh vs. State of Punjab and others' CWP No.2385 of 2018, decided on 21.08.2018. It is further evident that the offences alleged in the Kalandra are not during the proceedings before the learned Court of the Competent Jurisdiction.

Thus, this Court finds the recommendation of the Enquiry Commission beyond its jurisdiction. Resultantly, rapat No.10, dated 11.06.2020, under Sections 182, 193, 211 IPC, registered at Police Station Division No.5, Ludhiana arising out of FIR No.194, dated 30.07.2011, under Sections 323, 341, 294, 506, 34 of IPC, registered at Police Station Division No.5, Ludhiana as well as order dated 29.05.2019 passed in complaint No.3026 dated 04.07.2017 recommending FIR against petitioners under Sections 182, 193, 211 IPC by the Commission of Enquiries in complaint instituted by Kamaljeet Singh (respondent No.2) and order dated 27.10.2021 passed by the Court of ACJM, Ludhiana summoning the petitioners to face trial under Sections 182, 193, 211 IPC, being unsustainable in the eyes of law, are hereby quashed.

The present petition stands allowed.