High Court of Punjab and HaryanaCRM-M/38827/2017disposed of

Mahipal Yadav v. State Of Haryana

2023-02-08Mr. Justice Jasjit Singh Bedi9 pages

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Two-fold submissions have been raised by the petitioner in the present petition. Firstly, in the present case, no FIR was lodged, therefore, in view of the ratio of law laid down in Malkiat Singh v. State of Haryana, 1999(2) RCR (Criminal) 10, no offence under Section 182 IPC is made out. First submission raised merit attention and is required to be dealt with by this Court. It has been stated that until and unless, FIR is recorded, it cannot be said that a false report was submitted to

police official. By mere lodging of DDR, police had not proceeded to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting such information are given or lawful power of such public servant has been used to the injury or annoyance of any such person. Section182 IPC read as under:-

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A perusal and dissection of the section reveal two essential ingredients that by such information furnished, public servant ought to have done or omitted to have done something relying upon such information or had used his lawful power to the injury or annoyance of any such person. In the present case, none of these two essential ingredients were followed. MHC Sukhwinder Pal had given a note that there is no negligence on the part of any person. The accident occurred suddenly and naturally and no offence against any body is made out. Therefore, the information given was neither acted upon nor something which ought to have been done by the police official was not done. Therefore, there was no omission on the part of police official. Non registration of the case has not caused injury or annoyance to any person but at the same time giving of a false

information to the police cannot be ignored. Therefore, Code of Criminal Procedure has taken care of this eventuality also. There are other penal provisions which take care of act of commission or omission on the part of the accused. Lodging of false information for obtaining insurance claim will constitute which offence require application of mind. The offence may not fall under Section 182 IPC.

The judgment relied upon by counsel for the petitioner in Malkiat Singh's case (supra) cannot be applied in each and every case as a matter of rule. It is not necessary that any information recorded in Daily Diary Report must be converted into FIR for proceeding against the person who has given information for offence under Section 182 IPC. Wherein in a Daily Diary Report, a note is appended that the matter is to be investigated or report of Chemical Examiner or Forensic Expert is awaited and thereafter action shall be initiated, in that case police officer had formulated an opinion to proceed with the case, therefore, ingredients of Section 182 IPC is complete. There can be many instances, same cannot be specified and put in water tight jackets. Therefore, in each and every case before summoning, Magistrate had to apply mind whether offence under Section 182 IPC is made out or not. Magistrate may not give reasons for the same. An observation by the Magistrate "Record perused. Prima facie offence is made out" will suffice. 5.

Secondly, it has been stated by the petitioner in the petition that order dated 29.7.2005 passed by the Judicial Magistrate Ist Class, Jalandhar reproduced earlier, lack application of mind and the same has been passed in a mechanical manner. I find merit in this contention also. A Division Bench of this Court in Krishan Murari and ors. v. Mohinder Pal, 1983(1) RCR (Criminal) 21 held that it is not necessary that summoning order should be speaking order. However, it must reflect application of mind. A perusal of summoning order reveal that not

only the same is cryptic but it cannot be comprehended that the Magistrate was alive to the issues involved. Merely two lines have been noticed "Kalandra presented. It be registered and notice be issued." On this score also summoning order, Annexure P-2 is liable to be set aside. Accordingly, the present petition is accepted. Summoning order, Annexure P-2 is set aside. The matter is remanded back to the Court of Judicial Magistrate Ist Class, Jalandhar who shall apply mind to the submissions made and dealt with by this Court. *<

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