Akesh Kawaljeet Singh Brar v. Ut Of Chandigarh

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M No.30776 of 2025 Date of decision : 17.09.2025 Akesh Kawaljeet Singh Brar ..... Petitioner

Versus

Union Territory, Chandigarh ..... Respondent CORAM : HON'BLE MR. JUSTICE RAJESH BHARDWAJ ***

Present:

Mr. Baltej Singh Sidhu, Senior Advocate with Mr. Gurneet Singh Budhiraja, Advocate;

Mr. Divij Dutt, Advocate and Ms. Reena, Advocate for the petitioner.

Mr. J. S. Toor, AAP, UT, Chandigarh.

*** RAJESH BHARDWAJ, J.

1.

Present petition has been filed praying for quashing of FIR No.112, dated 10.07.2022, under Section 188 of IPC and Sections 25, 54, 59 of Arms Act, registered at Police Station Central Sector 17, Chandigarh along with challan/final report dated 15.12.2024 and complaint under Section 195 Cr.P.C. Further prayer has been made for staying the further proceedings arising out of the FIR during the pendency of the present petition.

2.

Succinctly, the facts of the case are that the police party while on patrolling on 09.07.2022, saw a black colour Thar coming, which on suspicion was stopped. The police party asked the persons sitting in the Thar to get down from the vehicle and gave the offer of search as they

-2noticed that something was hidden in the right side of lower back of the driver of the Thar. On asking, they disclosed their names as Akesh Kanwaljit Singh Brar (petitioner), Gagandeep Singh and Karanpreet Singh. On conducting the search of Akesh Kanwaljit Singh Brar, a .32 pistol, which contained a magazine with 7 live cartridges was recovered. He failed to produce any licence regarding the possession of the same. Thus the FIR was registered and Akesh Kanwaljit Singh Brar (petitioner) was arrested on the spot. The petitioner approached the Court of learned Chief Judicial Magistrate, Chandigarh praying for the grant of bail and the same was granted to the petitioner by the learned Chief Judicial Magistrate, Chandigarh vide order dated 16.07.2022.

3.

Learned counsel for the petitioner at the outset has submitted that the petitioner has been falsely and frivolously prosecuted on the basis of impugned FIR. He has submitted that the allegation made against the petitioner is that he has violated the prohibitory orders under Section 144 Cr.P.C. by carrying a weapon into the Union Territory of Chandigarh without local permission. He has submitted that the petitioner was granted the concession of regular bail by the learned Chief Judicial Magistrate, Chandigarh vide order dated 16.07.2022. He has further submitted that the arms licence was later on verified by the police authorities and was found to be genuine and valid and thus, no misuse of the firearm or any criminal intent has been alleged against the petitioner. He has further submitted that as per the statutory provisions of Section 195(1)(a)(i) Cr.P.C., the cognizance of any offence under Section 188 IPC cannot be taken unless a complaint in writing is made by the public servant whose lawful order is

-3alleged to have been disobeyed. He has relied upon the judgment passed by the Hon'ble Supreme Court in 'State of Haryana vs Bhajan Lal' 1992 Supp (1) SCC 335 and 'Harpreet Singh vs. State of Himachal Pradesh', 2017(3) RCR (Criminal) 727. He has submitted that case of the petitioner is squarely covered by the decision rendered by the Hon'ble Supreme Court in the said petitions and thus, prosecution of the petitioner is nothing but an abuse of the process of the Court and the FIR along with all consequential proceedings deserves to be quashed. 4.

Per contra, learned counsel for the State has opposed the contentions raised by learned counsel for the petitioner. He has submitted that after completion of investigation, the challan was preapred on 15.12.2024. He has submitted that the petitioner is a clever and sharp minded person. He has submitted that the petitioner had no compelling situation to violate the order/direction of District Magistrate. However he could not controvert the contention raised by learned counsel for the petitioner that the present case is covered by the decision of above said case.

5.

The Court has heard learned counsel for the parties and perused the record with their able assistance. 6.

It is deciphered that the petitioner has been prosecuted in FIR No.112, dated 10.07.2022, under Section 188 of IPC and Sections 25, 54, 59 of Arms Act, registered at Police Station Central Sector 17, Chandigarh, however he was granted bail in the same by the learned Chief Judicial Magistrate, Chandigarh vide order dated 16.07.2022. It has been found that no misuse of the firmarm or any criminal intent has been alleged against

-4the petitioner. A communication was sent for verification of pistol and live cartridges to Vohra Gun House, Faridkot, however the same was accepted and the bill was attached. The FIR fails to specify any such order that was violated, rendering the very basis of the offence non-existent. 7.

As per Section 195 Cr.P.C., no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of IPC except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. In the present case, proceedings against the petitioner under Section 188 of IPC have been initiated on the basis of F.I.R. and not on the basis of any complaint in writing of the public servant concerned as it required under Section 195 (1) (a) (i) Cr.P.C. However, Section 195 Cr.P.C. specifically provides that proceedings under Section 188 of IPC can only be initiated on the basis of complaint made in writing by the public servant concerned to the Court.

The police has no power to register a case for the offence under Section 188 of IPC and investigate the matter. The registration of FIR for the offence under Section 188 of IPC is not permitted by the Code of Criminal Procedure. In Sweta Estates Private Limited vs. State of Haryana and others, in CRM-M-6332014 decided on 26.03.2015, this Court held as under:- "As per Section 195 of the Code, no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of IPC except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate.

-5petitioner under Section 188 of IPC have been initiated on the basis of F.I.R. and not on the basis of any complaint in writing of the public servant concerned as it required under Section 195 (1) (a) of the Code. However, Section 195 of the Code specifically provides that proceedings under Section 188 of IPC can only be initiated on the basis of complaint made in writing by the public servant concerned to the Court. The police has no power to register a case for the offence under Section 188 of IPC and investigate the matter. The registration of FIR for the offence under Section 188 of IPC is not permitted by the Code." 8.

In the case of Jiwan Kumar vs. State of Punjab and others, 2009 (1) R.C.R. (Criminal) 415, a Coordinate Bench of this Court has held as under:

"8. Coming to the attack of the petitioner in regard to the registration of the FIR, it may be noticed that proceedings under Section 188 IPC can only be initiated on the basis of a complaint in writing of the public servant concerned made to the court or to some other public servant to whom he is administratively subordinate. Section 195(1) of the Code restrains the court from taking cognizance of any offence punishable under Section 188 IPC unless a complaint in writing is made to it by the public servant concerned. In other words, no FIR can be registered by the police. It would not be open to the police to register a case against the offender for offence under Section 188 IPC and then to submit a report under Section 173 of the Code to the concerned court. Reliance in this regard can be placed on Jagtar Singh v. Union Territory, Chandigarh 1996 (1) R.C.R. (Crl.) 669, wherein this Court held as under:

These facts are not disputed. Language of Section 195(1) of the Code does not leave scope for any ambiguity and is the section which has to be construed strictly. In accordance with the settled principles of interpretation applicable to criminal jurisprudence the provisions of Criminal Procedure Code or penal laws have

-6to be strictly construed so as to be given meaning except what is intended by the Legislature in the language used itself. The relevant portion of Section is that, "No court shall take cognizance except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate". The intention appears to be clear that where an offence is committed under Section 188 IPC, the legislature has made it obligatory that the public servant before whom such an offence is committed, he will file a complaint to the Magistrate and the cognizance of the offence by the concerned court is dependent upon the complaint in writing by such officer or an officer superior to such officer. The counsel for the petitioner has relied upon Sawaran Singh v. The State of Punjab 1994 (3) Recent C.R.

352 and Bhagat Ram v. The State of Punjab 1991 (1) Recent C.R. 192. In both these cases the court has indicated that the scope of Section 195(1) of the Code does not contemplate investigation in a normal way by the police and filing of the challan, but the complaint has to be presented directly to the concerned court. In the present case though the complaint is stated to be addressed to the court, but as it appears it was not presented to the court and the court did not pass any orders at that stage."

9.

It is admitted case of respondent No. 3 that FIR No. 128 (P3) was registered against the petitioner on 16.6.2005 under Section 188 IPC. The petitioner was thereafter arrested and interrogated. After the completion of the investigation, the challan (final report under Section 173 of the Code) was presented against the petitioner before learned Chief Judicial Magistrate,Mansa on 20.12.2005 and the charge was framed on 20.1.2006. Further that the case is now fixed for recording of prosecution evidence.

10. It is, thus, clear that the proceedings against the petitioner under Section 188 IPC have been initiated on the basis of the FIR and not on the basis of any complaint in writing of the public servant concerned as is required by Section 195(1)(a) of the Code. The

-7registration of FIR and the launching of proceedings thereafter against the petitioner is not permitted by the Code and thus, cannot be allowed to be sustained. Resultantly, the petition is allowed. Promulgation order dated 27.5.2005 (P-2) issued by the District Magistrate, Mansa is quashed. Similarly, FIR No. 128, dated 16.6.2005 registered at Police Station City Mansa under Section 188 IPC (P-3) and all the proceedings taken thereunder against the petitioner are also quashed and set aside."

9.

Thus, weighing the facts and circumstances of the present case, on the anvil of the law settled, FIR No.112, dated 10.07.2022, under Section 188 of IPC and Sections 25, 54, 59 of Arms Act, registered at Police Station Central Sector 17, Chandigarh as well as challan/final report dated 15.12.2024 and complaint under Section 195 Cr.P.C. along with all consequent proceedings arising therefrom are hereby quashed qua the petitioner.

10.

Present petition stands allowed.

(RAJESH BHARDWAJ) 17.09.2025 JUDGE rittu Whether speaking/reasoned :

Yes/No Whether reportable :

Yes/No