High Court of Punjab and HaryanaCRM-M/31662/2017allowed

Parveen Kumar v. State Of Haryana

2024-04-29Mr. Justice Deepak Gupta12 pages

!"#!$ %" &%'()(*(+(( (" (*!$( ,-.

(/ 0 * 1*2 ,

(/ 290

- 34 5

( 6)7# '%8"! #*##(3$%"( (9.):

! " *##(3$%"( 0'

# $

! %&'()( * !! +',-',+./ 0)12

,&,3',+./ 0)%2 +33',+',1 '+++&'

)( './$ !

'42

+343 !

$5*

67 4& '%,1',+. ) ! 8 7 ' 9 !

;

;< 67 '1 '1,1',+.

14% /+214%#14%; 4,-

)($ ) ! = ) ! 8 Page no.1 out of 12 pages

7 >) ? !!

+&,1',+. 9 6 7 4& '%,1',+.

) ? 1,.1%+<1%

)( '4

) ! ; 8 7 $ $ !!5 '+,1',+.$

5: 5 ! ! 1 ;

67 '1

',+. $ ,',4',+.

;

$ 5!! $

! % $

6 7 '1 '1,1',+. +33',+',1+&''++)( '.

$ 67 4& '%,1',+.

1,.1%+<1%

)( '4

$ !6 ! +.1()(/ !! 2

$ ! Page no.2 out of 12 pages

+&'+34',1'++)( '4

67 4&

'%,1',+. $ $ !!

! ! 8 7 /

2 ,&,3',+. +33',+',1'++ +&'

)(5 '.

$ ! ! ! ! 4+ ( !!

!! ! 67 4&

',+.

5 !

! !

!$ !!

! $5 $ $ !

!! !! $

! B

',,-/12(/( !2'.+ 4'

+&'+33',+ '++

)(5 0

! $ +34()( 41 # ! !

'1+,',+.$

!!67 4&

'%,1',+.$ ! ! 5

+&')( 5!

Page no.3 out of 12 pages

! 5!

',,./12 ( /( !2 .3+ !

" /('%..,

',,& ,3,%',+,2 4% B

! ! !

,&,4','1 5 B ! + (! 8 7

! 5 * 67 '1

'1,1',+.$ $

;

!! !

!!!

67 '1

',+. !! 5 67 4&

',+.

! 5! 5 ! - B

! 5 5 6 7 4&

',+. $ !

5 !

5! 67 '1

',+.5 !

!! .

& B

5 : 5

!* $ 5 $ 5 =!!

6 $ !!5 $ : $ ) !! !

! Page no.4 out of 12 pages

5! 6 7 '1

',+.

: 5

$ !! 6 7 4&

',+.

! 5

! 1,.1%+ )( !! 6 +&' '++)( 9.

Section 173 (2) Cr.P.C, is relevant here, which reads as under:

"173. Report of police officer on completion of investigation.-

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(1A) xxxxxxx

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties;

(b) the nature of the information;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170. Page no.5 out of 12 pages

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

+.1/'2 ()( # $% & 5!5

D5!( E "When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him, several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e.

, (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). Where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory."

[Bold & Italicized portion emphasised by this court] ++ $

! ! $ !!

! !! Page no.6 out of 12 pages

6$ $ !

! !! !!

5 ! 5 5

! !! $

! !

! 5

! /

2 $ ! ! 5

+' 6!

+34()( E "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (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 of some 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." Page no.7 out of 12 pages

+1 ! 5 !

( :

+&')(0

! $

5! $ !

$5 ! +% ! !

( :

+33 '++)(0

! $

( 5

( C 5 ( 5 ( $ ( 5 $

!! 5

+4 !

! 5 * 6 7 '1

'1,1',+. $ $

;

,&,4','1 5 B ! + (! 8 7 $ !!!

$ !! 5 6 7E 4&

',+. $

5 ! +-

! / 0)42 ! 5 !5 !!67 4&

',+.$ $ !!

! 5 +&')( Page no.8 out of 12 pages

+. # $% &5

( $ $ ( ! 5 +&')(

! $ !

! (

! $$ C

0 !

A( 5 E "4. This issue has arisen before this court on various occasions. One such case where this issue was examined is Banta Singh v. State of Haryana 1995(3) RCR (Criminal) 133. In that case also, the allegations levelled by the complainant were found to be false by the investigating agency which had presented calendra under Section 182 of I.P.C. Subsequently, the complainant instituted a private complaint and sought quashing of the calendra on the ground that the same cannot be proceeded with during the pendency of the complaint. This court in Banta Singh's case (supra), following the ratio of law laid down in State of Punjab v. Brij Lal Palta AIR 1969 Supreme Court 355, held as under:- "In State of Punjab v.

Brij Lal Palta, AIR 1969 Supreme Court 355, a matter very much similar to the one in hand, was considered and it was held that once a complaint filed by the informant which is based on the same facts and allegations on which the first information was registered, is being proceeded with, it is not open to a Magistrate to take cognizance of any offence alleged to have been committed under section 211 Indian Penal Code. It was further held that although section 182 Indian Penal Code, is distinct from the offence under Section 211, the latter is a more serious offence and may include the offence under the former section. It is apparent that if the case under section 182 Indian Penal Code, is allowed to proceed, a decision in the said case would tantamount to pre-judging the complaint filed by the petitioner.

The prosecution of the petitioner under section 182 Indian Penal Code, during the pendency of his complaint, is evidently an abuse of the process of the Court, and it would be but proper to secure the ends of justice, to quash these proceedings. It is ordered accordingly." (Emphasis supplied) Page no.

5. This issue was again considered by this court in the case of Ramesh Chand v. State of Haryana 2006(4) RCR (Criminal) 718. In that case also the quashing of Kalendra under Section 182 of I.P.C. was sought on the ground that during the pendency of the complaint, these proceedings could not have been instituted. This court allowing the petition observed as under:- "In view of the admitted facts that in the private complaint filed by the petitioner, the accused have been summoned, though they were found innocent by the police in the FIR and keeping in view the aforesaid settled proposition of law, at this stage it cannot be said that the allegations levelled by the petitioner in the FIR are false. Therefore, in my opinion, the proceedings initiated by the police against the petitioner under Section 182 1.P.C. are liable to be quashed." (Emphasis supplied)

6. Even in the case of Tarlochan Singh v. State of Punjab 2007(3) RCR (Criminal) 791 the proceedings under Section 182 of the Indian Penal Code were quashed as the criminal complaint on the same cause of action was pending. This court observed as under:

"5. There appears to be force and substance in the contention raised on behalf of the petitioner. Though, the police had investigated the FIR registered on the basis of a complaint submitted by the petitioner and found those allegations to be false, yet the petitioner has thereafter filed a fresh complaint Annexure P-3 and the said complaint is still pending and fixed for recording of preliminary evidence."

7. After adverting to the various case law on the point it was held that "It is, thus, clear that if the case under Section 182 1.P.C. is allowed to proceed, a decision in the said case would tantamount to pre-judging the complaint filed by the petitioner. The prosecution of the petitioner under Section 182 I.P.C. during the pendency of his complaint on the same facts and allegations as mentioned in the FIR, would be an abuse of the process of the Court."

(Emphasis supplied)

8. The aforesaid proposition of law was followed more recently in the case of Page no.10 out of 12 pages

Babita v. State of Punjab 2008(4) RCR (Criminal) 516 wherein it was held that:

"7. Keeping in view the facts of the present case, where the final opinion by the Court is yet to be expressed as regard the falsity of the complaint made by the petitioner, permitting the respondents to proceed with the proceedings under Section 182 I.P.C. would amount to pre-judging the complaint filed by the petitioner. The same is premature and would amount to abuse of process of law. It would be proper, to secure the ends of justice, to quash the proceedings against the petitioner."

(Emphasis supplied)

9. From the perusal of the aforesaid judgments, the principle of which emerges is that the proceedings under Section 182 of 1.P.C. cannot be permitted to continue when a private complaint on the same cause of action is pending before a court of law. When the truthfulness and veracity of the allegations have not been determined by a court, prosecuting the complaint under Section 182 will tantamount to prejudging the whole issue which would clearly be an abuse of process of law. Since this view has been consistently followed by this court and the counsel for the respondent has not been able to cite any case law to the contrary, I see no reason for deviating from the view taken by this court on various occasions." +& B ! 5

* !

! 5!

! ! ! 5

6 4&

'%,1',+./

5 !!

$ +3

!! +',-',+. / 0 )12

,&,3',+./ 0)%2 +33',+',1 '++ +&'

)( '.

+343 !

$ 5*

Page no.11 out of 12 pages

67 4& '%,1',+. ) ! 8 7 5 * (/ ;0 *##(3$%"( '%*$# = < :E 8 = 5!E 8 Page no.12 out of 12 pages