High Court of Punjab and HaryanaCRM-M/7620/2023allowed

Gurjit Singh v. State Of Punjab

2024-08-06Mr. Justice Pankaj Jain6 pages

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+ # "Whether presentation of Kalandra qua offence punishable under Section 182 IPC on the ground that the complaint submitted to SP was found to be false can be maintained by Station House Officer in the light of provisions as contained under Section 195 of the Code? /

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(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.]

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."

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"3. That in compliance of order dated 10.08.2023, it is submitted that Kalandra has been initiated by the Inspector after the investigation of the various complaints of petitioner/accused received to police station HTM, Hisar, vide complaint number SP Office Hisar 1645/PU dated 06.03.2023, 1780/PU dated 07.03.2023, 1790/PU dated 07003.2023, 364/PSPL,1 dated 11.03.2023, 392/PSPL,1 dated 17.03.2023, 1881, PU dated 10.03.2023, 2260,PU dated 28.03.2023 and during investigation, all complaints were found false. It is submitted that the Kalandra has been initiated by the inspector which is not the violation of Section 195 of Cr.P.C. complaint was submitted to SP, Hisar and inquiry was initiated by PSI Atul and Kalandara/complainant was initiated on the complaint of Inspector Balwant Singh, Station House Officer, Police Station HTM, Hisar who public servant and is administratively subordinate the SP, Hisar."

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12. The Station House Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No. 2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar.

The High Court, in our opinion, thus, committed a manifest error in so far as it held that the as the complaint was addressed to the SHO, he was the appropriate authority to lodge a complaint in respect of an offence punishable under Section 182 of the Indian Penal Code. The fact that the search was made pursuant to the directions issued by the Senior Superintendent of Police, Jalandhar is not in dispute. Section 195 contains a bar on the Magistrate to take cognizance of any offence. When a complaint is not made by the appropriate public servant, the Court will have no jurisdiction in respect thereof. Any trial held pursuant thereto would be wholly without jurisdiction. In a case of this nature, representation, if any, for all intent and purport was made before the Senior Superintendent of Police and not before the Station House Officer.

13. No complaint, therefore, could be lodged before the learned

Magistrate by the Station House Officer. Even assuming that the same was done under the directions of Senior Superintendent of Police, Jallandhar, Section 195, in no uncertain terms, directs filing of an appropriate complaint petition only by the public servant concerned or his superior officer. It, therefore, cannot be done by an inferior officer. It does not provide for delegation of the function of the public servant concerned. We may notice that in terms of sub,section (3) of Section 340 of the Code, a complaint may be signed by such an officer as the High Court may appoint if the complaint is made by the High Court. But in all other cases, the same is to be done by the presiding officer of the court or by such officer of the court as it may authorise in writing in this behalf.

Legislature, thus, wherever thought necessary to empower a court or public servant to delegate his power, made provisions therefor. As the statute does not contemplate delegation of his power by the Senior Superintendent of Police, we cannot assume that there exists such a provision. A power to delegate, when a complete bar is created, must be express; it being not an incidental power.

14. In +$ ,(-%)%$*+'%., Hidayatullah, J. (as the learned Judge then was), held as under : "... 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 this case."

The said decision was followed by a Division Bench of this Court in $

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"A cursory reading of Section 195(1)(a) makes out that in case a public servant concerned who has promulgated an order which has not been obeyed or which has been disobeyed, does not prefer to give a complaint or refuses to give a complaint then it is open to the superior public servant to whom the officer who initially passed the order is administratively

to prefer a complaint in respect of the disobedience of the order promulgated by his

. The word '

' means administratively

, i.e., some other public servant who is his official superior and under whose administrative control he works." %

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