Saloni Arora v. State

$~35 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2447/2012 SALONI ARORA ..... Petitioner Represented by: Mr. Siddharth Aggarwal, Mr. Ambar Bhushan and Mr. Syed Arham Masud, Advs. for applicant (DHC).

versus STATE ..... Respondent Represented by: Mr. G.M. Farooqui, APP for State.

CORAM:

HON'BLE MR. JUSTICE SURESH KAIT

O R D E R

% 01.02.2016 Crl. M.A. 1775/2016 1.

Vide the instant application, applicant seeks modification in order dated 06.07.2015 passed by this Court whereby Registrar General of this Court was directed to make a formal complaint in terms of the decision of this Court in Crl. Rev. P. 497/2008.

2.

Ld. Counsel appearing on behalf of the applicant submits that Registrar General of this Court is not a Govt. Servant in terms of Section 195 of Cr.P.C. The petitioner Saloni Arora gave false information to the Police Station-Anand Vihar and since there was no complaint from the said Police Station, the said Saloni Arora filed a petition before this Court vide Crl. M.C. 2447/2012 while relying upon the decision of the Supreme Court in the case of Daulat Ram v. State of Punjab AIR 1962 SC 1206 and

submitted that the prosecution under Section 182 of IPC is to be preceded by a complaint made by public officer and in the said case no complaint under Section 182 of IPC was filed.

3.

Ld. Addl. Public Prosecutor who represented the State submitted before the Court that there is an absolute bar against the Court to proceed under Section 182 of IPC except by a complaint in writing as provided under Section 195 of Cr.P.C. Accordingly, this Court directed the Registrar General of this Court to make a formal complaint in terms of the decision of this Court delivered in Crl. Rev. 497/2008.

4.

Ld. Counsel for the applicant has referred Para 2 and 4 of Daulat Ram (supra) whereby the Supreme Court has held as under: "2. The appellant was working as a Patwari and one August 19, 1958, he wrote a letter to the Tehsildar of Pathankot that on the previous day he had been set upon by two persons Hans Raj and Kans Raj who beat him severely and robbed him of certain of his official papers and some money, which was with him, partly belonging to him and partly to the Government. At the end of the letter which he wrote to the Tehsildar, he stated that the letter was written for his information. The Tehsildar, however, forwarded the letter to the Sub-Divisional Officer who in his turn sent it on to the police. The police enquired into the facts and reported that the allegations in letter were false.

Meanwhile, it appears that the appellant entered into some sort of compromise with Hans Raj and Kans Raj and wrote another letter saying that as they were his relatives and he had found the papers and money, the proceedings if any be dropped and the papers be consigned to the record room. The matter however was pursued further and when the report of the police came that the allegations in the original letter were false, the Tehsildar asked the police that a "calendar" be drawn up.

under Section 182 of the Indian Penal Code, and after due trial, the appellant was found guilty of that offence and was sentenced to three months' rigorous imprisonment. His appeal and revision failed and we have been informed that the appellant has severed out his entire sentence.

4. Now the offence under Section. 182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. In making his report to the Tehsildar therefore, if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer.

The learned counsel for the State Government tries to support the action by submitting that Section 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for "a calendar". This paper was filed along with the charge sheet and it is stated that this satisfies the requirements of s. 195. In our opinion, this is not a due compliance with the provisions of that section. What the section contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tehsildar in this case.

The trial was thus without jurisdiction ab initio and the conviction cannot be maintained."

5.

In view of the decision of the Supreme Court in the case of Daulat Ram (supra) I found force in the submission of the ld. Counsel for the applicant and accordingly, modify the order dated 06.07.2015 to the extent

that SHO, PS-Anand Vihar is directed to make a formal complaint in terms of order dated 06.07.2015 passed by this Court. 6.

Accordingly, the application is allowed.

7.

A copy of this order be sent to the SHO concerned for compliance. SURESH KAIT, J FEBRUARY 01, 2016 jg