Sardari Lal vs State of Punjab

B.S. Nehra, J.

This is a petition under section 482 of the Criminal Procedure Code for quashing complaint dated 12.10.1987, copy Annexure P.1, and notice/charge dated 6.1.1988, copy Annexure P2, and the proceedings initiated on the basis of the complaint, copy Annexure P.1, in the case titled "State v. Sardari Lal" pending in the Court of Shri. S.S. Arora, Chief Judicial Magistrate, Amritsar.

The facts of the case are that respondent No. 2 filed a complaint on behalf of respondent No. 1, copy Annexure P1, under section 182 of the Indian Penal Code (hereinafter referred to as `the Code'') against the petitioner. The Chief Judicial Magistrate, Amaritsar, framed chargesheet against the petitioners and issued notice to him copy of which is Annexure P2. The petitioner has alleged that the complaint copy Annexure P1, and charge, copy Annexure P2, and the entire proceedings of the case initiated on the basis of the said complaint are liable to be quashed on the grounds, inter alia, that respondent No. 2 is not competent to file the complaint against the petitioner and that the complaint is barred under section 195 of the Cr. Procedure Code and, therefore, the trial Court could not take cognizance of the offence.

In the complaint, it has been alleged that respondent No. 2 had addressed certain complaints to the Prime Minister with copies, inter alia, to the Inspector General of Police and Senior Superintendent of Police, Amritsar. Those complaints appear to have been investigated by Inspector Surinder Singh, S.H.O. Police Station Civil Lines, Amritsar, who found the complaint filed by the petitioner to be false and this resulted in the complaint being filed under section 182 of the Code against the petitioner for allegedly making false complaints to the Prime Minister and other authorities.

In the reply filed by respondent No. 2, it has been stated that the complaint filed, under section 182 of the Code by him against the petitioner discloses a cause of action and the (respondent No. 2) is competent to file the complaint and further that the trial Court is also competent to take cognizance of the offence.

The sole question for determination in this case is whether respondent No. 2 had the locus standi to file the complaint against the petitioner. It is not disputed by the learned counsel for the respondents that none of the complaints addressed to the Prime Minister and other Officers were addressed to respondent No. 2 in his capacity as Inspector, S.H.O., Police Station Civil Lines, Amritsar. In this background, it has to be considered whether he (respondent No. 2) could institute the proceedings by way of a complaint against the petitioner. It is necessary in this context to notice the provisions of section 195 of the Criminal Procedure Code. It reads, in so far as it is relevant for the point under consideration, as under :

"195(1) No Court shall take cognizance

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

except on the complaint in writing of that court, or of some other court to which that court is subordinate."

"A bar reading of this provision would show that the Court of competent jurisdiction has been authorised to take cognizance of an offence punishable under sections 172 to 188 (these include the offence under section 182 under which the instant complaint had been filed against the petitioner by respondent No. 2) only on the complaint in writing by the public servant whom he is administratively subordinate. Since the complaint copy Annexure P2, had been made to the Prime Minister and to the Inspector General of Police and the Senior Superintendent of Police, Amritsar, the complaint could be filed in the Court by the Prime Minister or by the Inspector General of Police or by the Senior Superintendent of Police. In case, however, the Inspector General of Police or the Senior Superintendent of Police wanted to avoid the filing of the complaint either through the Home Secretary/Minister, Home Affairs or the Director General of Police etc. to whom the Inspector General of Police or the Senior Superintendent of Police could not be said to be subordinate. Surely, the complaint could not be filed by the Inspector of Police, respondent No. 2 who is subordinate to the Inspector General of Police and the Senior Superintendent of Police, as has been done in this case, in view of the clear mandate contained in Section 195 of the Criminal Procedure Code which has been reproduced above."

It has been held by the Punjab and Haryana High Court in Jarnail Singh v. The State of Punjab and another, 1983(1) Recent Criminal Reports 540 : 1983(1) Chandigarh Law Reporter 719, that the complaint addressed to the Senior Superintendent of Police giving rise to the filing of a formal complaint under section 182 of the Code could not be initiated by an officer subordinate to the rank of the Senior Superintendent of Police. In Daulat Ram v. State of Punjab, AIR 1962 Supreme Court 1206, the apex court had held that the offence under section 182 of the Code is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be falce, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned under section 182, and not leave it to the police to put a chargesheet. The trial under section 182 of the Code without the Tehsildar''s complaint in writing is, therefore, without jurisdiction ab initio.

On careful consideration of the rival contentions of the learned counsel for the petitioner and the learned Assistant Advocate General, Punjab, I have no hesitation in holding that in view of the ratio of judgment of the Punjab and Haryana High Court in Jarnail Singh''s case (supra) and of the Supreme Court in Daulat Ram''s case (supra), the complaint under section 182 of the Code filed by respondent No. 2 against the petitioner was not competent and the trial Court could not take cognizance of the offence against the petitioner as the complaint was not filed by the Senior Superintendent of Police or an officer to whom the S.S.P. was administratively subordinate.

For the reasons recorded above, the petition is allowed and complaint dated 12.10.1987, copy Annexure P1 filed by respondent No. 2 against the petitioner, notice/charge dated 6.1.1988, copy Annexure P1 and the proceedings initiated on the basis of the said complaint are quashed.