Vipan Kumar Khurana vs Manjit Kaur

Sham Sunder, J.—This revision petition is directed against the judgment dated 28.2.2002, rendered by the Court of Sub Divisional Judicial Magistrate, Phagwara, vide which, it acquitted the accused for the offence, punishable u/s 182 of the Indian Penal Code.

The facts, in brief are that Manjit Kaur wife of Avtar Singh, resident of Baddal Mohalla, Phagwara, sent a fax message to the Senior Superintendent of Police, Kapurthala. She also sent an application to the Deputy Inspector General-Jalandhar Cantt, complaining that police of Police Station City, Phagwara, was harassing her and her family members unnecessarily. On receipt of the fax message and the application, referred to above, the Senior Superintendent of Police, Kapurthala, marked the enquiry to the Deputy Superintendent of Police (Special Branch), Kapurthala. The allegations leveled by Manjit Kaur were to the effect that Vipan Khurana, President of Jal Sewa Society, Phagwara, had beaten her son Mandeep Singh, aged 12/13 years on 19.1.2000 at about 9 a.m and also damaged the goods of the shop of the complainant. When her husband came to rescue her, Vipan Khurna along with his companion had also beaten Avtar Singh, her husband and abused him. After few days, ASI Charanjit Singh got the matter compromised, with the intervention of the respectables of the town. She prayed for taking action against police officials, Vipan Khurana and his companions, Deputy Superintendent of Police (Special Branch) Kapurthala, called both the parties. During the course of enquiry, DSP came to the conclusion, that Avtar Singh, husband of Manjit Kaur was running a shop under the name of "Dasmesh Sound Service", near the house of Vipan Khurana. He used to play the deck in loud voice, which caused inconvenience to the inhabitants of the Mohalla. The residents of the Mohalla stopped them from doing so. They picked up quarrel with them. On 19.1.2000, one truck came to the shop of Avtar Singh for loading and unloading and the driver kept the same, in starting condition. The foul smoke entered in the house of Vipan Khurana, which was causing pollution. When Vipan Khurana asked them to stop, he was slapped by Mandip Singh son of Avtar Singh of "Dasmesh Sound Service". Vipan Khurana and Balraj Khurana gave iron rod blows, on the person of Mandip Singh, and his father Avtar Singh. No goods of the complainant were stolen, as alleged by her in the application dated 28.1.2000. The Investigation Officer found the allegations, mentioned in the application, to be false and recommended that the same be filed and action be taken against Manjit Kaur, u/s 182 Cr.P.C. Accordingly, the calendra u/s 182 Cr.P.C. was presented against the accused.

On her appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. A notice u/s 182 Cr.P.C. was served upon the accused to which she pleaded not guilty and claimed judicial trial.

The prosecution, in support of its case, examined Vipan Khurana, PW1, ASI Charanjit Singh, PW2, Balram PW3, Pandit Chotelal PW4, Constable Karamjit Singh, PW5 and ASI Nirvair Singh PW6. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence.

The statement of the accused u/s 313 Cr.P.C. was recorded. She was put all the incriminating circumstances, appearing against her, in the prosecution evidence. She pleaded false implication. She tendered into evidence copy of complaint dated 24.1.2000 Ex.D1, copy of the summoning order dated 25.7.2001 Ex.D2, copy of the order of the SDM Ex.D3 and copy of calendra Ex.D4. Thereafter, she closed her defence evidence.

After hearing the counsel for the parties, and, on going through the evidence, on record, the trial Court acquitted the accused, as stated above.

Feeling aggrieved, the instant revision petition was filed by the revision petitioner.

I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

The Counsel for the revision-petitioner, submitted that the trial court, was wrong, in coming to the conclusion, that cognizance of the calendra could not be taken by it, as the complaint u/s 182 Cr.P.C, was neither made by the Senior Superintendent of Police, to whom the fax message was sent by the accused, nor by the Deputy Inspector General, Jalandhar Cantt, to whom the application containing the same subject matter was sent. He further submitted that, since on the basis of the enquiry conducted by the DSP (Special Branch), Kapurthala, the Senior Superintendent of Police directed the SHO to take further action and as such calendra u/s 182 Cr.P.C. was presented by the SHO. He further submitted that this amounted to the due compliance of the provisions of Section 195(i)(a) of the Cr.P.C. He further submitted that the judgment of the trial Court is liable to be set aside, being illegal and perverse.

On the other hand, the Counsel for the respondent submitted that the complaint u/s 182 Cr.P.C, could only be made by either the Senior Superintendent of Police, or the Deputy Inspector General of Police, Jalandhar Cantt, to whom the information was sent by Vipin Kumar (revision-petitioner herein), which was later on found to be false. He further submitted that the mere fact that the Senior Superintendent of police directed the SHO, on the basis of the enquiry conducted by the DSP (Special Branch), Kapurthala, to take action, in accordance with law, did not amount to the due compliance of the provisions of Section 195(1)(a) Cr.P.C. and, thus, the trial Court was right in coming to the conclusion, that the cognizance could not be taken. He further submitted that the judgment of the trial Court, is based on the correct position of law, and deserves to be upheld.

After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the judgment of the trial Court, does not suffer from any illegality or infirmity. The same is based on the correct interpretation of the provisions of Section 195(1)(a) of the Cr.P.C. Admittedly, a fax message was sent to the Senior Superintendent of Police, and an application was sent to the Deputy Inspector General of Police, Jalandhar Cantt. by Vipin Kumar (revision-petitioner herein), wherein, the allegations were made, against Vipan Khurana, and the high handedness of the police. Those allegations, were enquired into by the DSP (Special Branch) on the direction of the SSP, Kapurthala. He found those allegations to be false and recommended that action be taken, against the accused u/s 182 Cr.P.C. The question arises, as to whether, the SHO was competent to file the complaint u/s 182 Cr.P.C. Section 195(1)(a) Cr.P.C., clearly lays down that no Court shall take cognizance of any offence, punishable under Sections 172 - 188 IPC, except on the complaint, in writing by a public servant, or any officer, to whom he was administratively subordinate. The language of Section 195(i)(a) Cr.P.C., is unambiguous and does not admit of any doubt. Once the allegations, levelled by the accused, in the application, as also in the fax message were found to be false, complaint u/s 182 Cr.P.C. could only be filed either by the Senior Superintendent Police, or the Deputy Inspector General of Police, Jalandhar Cantt, or by an officer to whom they were administratively subordinate. In the instant case, admittedly, neither the complaint was filed by the Senior Superintendent of Police, nor by the Deputy Inspector General of Police. On the other hand, the calendra was filed by the SHO, Phagwara. He was not competent to do so, in view of the provisions of Section 195(i)(a) Cr.P.C, referred to above. In Daulat Ram Vs. State of Punjab, , a complaint was made by the Patwari, to the Tehsildar, on the allegations, that some persons gave him beatings severely, and robbed him of some of his official papers, and money, which were in his possession, partly belonging to him, and partly to the Government. This letter was forwarded by the Tehsildar to the Sub Divisional Officer, who in his turn, sent it to the police. The police enquired into the facts, and reported that the allegations, in the letter, were false. Ultimately, the Tehsildar asked the police that a calendra be drawn up, and presented, in the Court against the Patwari. The complaint was not made by the Tehsildar, to whom the letter, containing the allegations, was sent by the Patwari. On the other hand, the complaint u/s 182 Cr.P.C. was filed by the SHO. In these circumstances, it was held in Daulat Ram''s case (supra), a case decided by a Bench of three Hon''ble Judges of the Apex Court, that since the provisions of Section 195(1)(a) Cr.P.C, were not complied with, as the complaint had not been filed by the Tehsildar, to whom the false information was given, by the Patwari, cognizance could not be taken by the Court. Ultimately, the trial was held to be without jurisdiction ab-initio, and the conviction recorded by the trial Court, was set aside. The fact and circumstances of Daulat Ram''s case (supra) are almost identical and similar to the facts and circumstances of the instant case. In these circumstances, it can be held that the trial Court was right in coming to the conclusion, that no cognizance of the calendar filed by the SHO, could be taken, in view of the complete bar created by the provisions of Section 195(a)(1) Cr.P.C., and, as such, the accused was entitled to acquittal. There is no illegality or perversity, in the findings of acquittal, recorded by the trial Court. The judgment of the trial Court deserves to be upheld. The submission of the Counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected.

No other point, was urged by the Counsel for the parties.

For the reasons recorded above, the revision petition, being devoid of merit, must fail, and the same is dismissed.