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2008 DIGILAW 808 (PNJ)

Kulwinder Singh v. State Of Punjab

2008-03-31

RAJESH BINDAL

body2008
Judgment Rajesh Bindal, J. 1. Prayer in the present petition filed under Section 482 Cr.P.C. is for quashing the Calendra filed by S.H.O., Police Station Mahilpur under Section 182 IPC against the petitioner. Briefly, the facts as stated in the petition are that the petitioner filed two applications to Senior Superintendent of Police, Hoshiarpur and Deputy Inspector General of Police, Jalandhar Range, Jalandhar against respondent No. 2, which after investigation by the S.H.O., Mahilpur, were found to be false. Thereafter respondent No. 2 filed an application before the Deputy Commissioner, Hoshiarpur, which was referred to Senior Superintendent of Police, Hoshiarpur for report, who in turn sent the same to the S.H.O Police Station Mahilpur, for investigation and report, which was further marked to Paramjit Singh for necessary action and report and ultimately the Calendra under the signatures of S.H.O. was filed before the learned Magistrate. This Calendra, is impugned in the present petition. 2. Learned counsel for the petitioner submits that the complaints were made by the petitioner to the S.S.P., Hoshiarpur and D.I.G, Jalandhar Range, Jalandhar. The calendra in the present case has been presented by the S.H.O., Police Station, Mahilpur, who is totally incompetent in view of settled position of law. He has referred to judgments of this Court in the case of Sardari Lal v. State of Punjab, 1992(2) R.C.R.(Criminal) 13, Baldev Singh v. State of Haryana, 2006(1) R.C.R.(Criminal) 147 and D.S. Rawat v. State of Punjab, 2007(2) R.C.R.(Criminal) 199. He further submits that the complaint filed by the petitioner against Satvir Singh under Sections 427/323/447/504/506 IPC is still pending before the learned Magistrate. Meaning thereby the issue as to whether the complaint filed by the petitioner to the police was fake, is yet to attain finality. 3. On the other hand, learned counsel for the State submitted that the application was filed to the Deputy Commissioner for initiating process against the petitioner for filing a false complaint and it was on his initiation, the calendra was presented and the same cannot be said to be filed by incompetent person. 4. Heard learned counsel for the parties and perused the paper book and the judgments referred to by them. 4. Heard learned counsel for the parties and perused the paper book and the judgments referred to by them. This Court in Sardari Lals case (supra) while dealing with an identical issue opined as under :- "It has been held by the Punjab and Haryana High Court in Jarnail Singh v. The State of Punjab and another, 1983(1) Recent Criminal Reports 540 : 1983(1) Chandigarh Law Reporter 719, that the complaint addressed to the Senior Superintendent of Police giving rise to the filing of a formal complaint under Section 182 of the Code could not be initiated by an officer subordinate to the rank of the Senior Superintendent of Police. In Daulat Ram v. State of Punjab, AIR 1962 Supreme Court 1206, the apex Court had held that the offence under Section 182 of the Code is complete hen a person moved the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made, by the Tehsildar as the public servant concerned under Section 182, and not leave it to the police to put a charge- sheet. The trial under Section 182 of the Code without the Tehsildars compliant in writing is, therefore, without jurisdiction ab initio." 5. In Baldev Singhs case (supra), this Court set aside the calendra presented under Section 182 IPC on the ground that it had not been presented by a person competent to whom the complaint had been made. Para 6 of the judgment can be referred to for the purpose :- "A bare reading of this provision (Section 195 Cr.P.C.) would show that the Court of competent jurisdiction has been authorised to take cognizance of an offence punishable under Sections 172 to 188, (these include the offence under Section 182 under which the instant complaint had been filed against the petitioner by a respondent No. 2) only on the complaint in writing by the public servant whom he is administratively subordinate. Since the complaint, copy Annexure P-2 has been made to the Prime Minister and to the Inspector General of Police and the Senior Superintendent of Police, Amritsar, the complaint could be filed in the Court by the Prime Minister or by the Inspector General of Police or by the Senior Superintendent of Police. In case, however, the Inspector General of Police or the Senior Superintendent of Police wanted to avoid the filing of the complaint either through the Home Secretary/Minister, Home Affairs, or the Director General of Police etc. to whom the Inspector General of Police or the Senior Superintendent of Police could not be said to be subordinate. Surely, the complaint could not be filed by the Inspector of Police, respondent No. 2, who is subordinate to the Inspector General of Police and the Senior Superintendent of Police, as has been done in this case, in view of the clear mandate contained in Section 195 of the Criminal Procedure Code which has been reproduced above. 6. In D.S. Rawats case (supra), similar view was expressed by this Court in following terms : "A perusal of the above quoted provisions shows that a complaint under Section 182 of the IPC can be initiated against the informant only by the officer to whom false information has been made and not (or ?) by an, authority to whom he is administratively subordinate. In the instant case, the petitioner had made an application to the Senior Superintendent of Police, Jalandhar for taking action against Karamjit Singh and others whereas the Kelendra has been filed by the Station House Officer, Police Station, Division No. 4, Jalandhar. There is nothing on the record to show as to whether the Senior Superintendent of Police or his administratively superior authority had authorised Station House Officer, Police Station, Division No. 4, Jalandhar to file the Kelendra against the petitioner in the Court except for the bald averment made in paragraph 9 of the reply." 7. This Court in Criminal Misc. There is nothing on the record to show as to whether the Senior Superintendent of Police or his administratively superior authority had authorised Station House Officer, Police Station, Division No. 4, Jalandhar to file the Kelendra against the petitioner in the Court except for the bald averment made in paragraph 9 of the reply." 7. This Court in Criminal Misc. No. 60096-M of 2004 (Surjit Singh v. State of Punjab), decided on 06.02.2008 while considering earlier judgment of Honble the Supreme Court in Daulat Ram v. State of Punjab, AIR 1962 Supreme Court 1206, opined as under :- "Once the position of law on the issue whether calendra under Section 182 IPC can be presented under the signatures of any authority who though subordinate to the person to whom the complaint was made but on the direction of the authority concerned is already settled and it has been opined that in case the prosecution is to be launched under Section 182 IPC, the complaint in writing should be made by the public servant concerned and not his subordinate and mere direction by the competent authority to present calendra will not comply with the provisions of law. In the present case, the complaint has been filed by the petitioner to the Senior Superintendent of Police but calendra has been presented by the Assistant Sub Inspector, which cannot be held to be valid in terms of provisions of Section 195(1)(iii) of the Code of Criminal Procedure." 8. In view of my above discussion on the issue regarding the competence of the person to present calendra before the Court being clear, in the present case, the calendra having been presented by S.H.O., Police Station Mahilpur, is incompetent as the complaint was not made to him but was made to the Senior Superintendent of Police, Hoshiarpur and Deputy Inspector General of Police, Jalandhar Range, Jalandhar. For the reasons mentioned above, calendra (Annexure P-1) and all proceedings subsequent thereto are quashed.