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Jharkhand High Court · body

2019 DIGILAW 130 (JHR)

Prabhakar Singh v. State of Jharkhand

2019-01-15

RAJESH SHANKAR

body2019
JUDGMENT : 1. The present petition has been filed for quashing the entire criminal proceedings of G.O Case No. 78 of 2010 arising out of Adityapur (RIT) P.S case No. 78 of 2009, corresponding to G.R Case No. 271 of 2009 including the order dated 05.05.2010 passed by the Chief Judicial Magistrate, Seraikella, whereby cognizance of the offences under Section 182 and 211 of IPC has been taken and summons has been issued against the petitioner. 2. The learned counsel for the petitioner submits that on 14.04.2009, the petitioner lodged an FIR being Adityapur (RIT) P.S. Case No. 78 of 2009 against unknown persons for the offences under Sections 461/379 I.P.C. Pursuant to lodging of the FIR, the police investigated the case and finding the case to be false, submitted the final form before the concerned court below on 30.10.2009 whereupon notice was issued to the petitioner being the informant of the said case on the factory address, whereas the petitioner had given the address of his residence in the F.I.R. Thereafter on the same day, one Anand Kumar Mishra, the Investigating Officer of the said case submitted a prosecution report before the Chief Judicial Magistrate, Saraikella-Kharsawan for taking action against the petitioner under Sections 182/211 I.P.C. alleging inter alia that the petitioner had given false information regarding the said occurrence leading to lodging of Adityapur (RIT) P.S. Case No. 78 of 2009. As per the service report of the notice issued to the petitioner, the factory was found closed. The case was subsequently taken up before the learned court below on 05.05.2010 and on the said date, the cognizance of the offences under Sections 182/211 I.P.C. was taken by the learned Chief Judicial Magistrate, Seraikella-Kharsawan. It would thus be evident that the petitioner has not been given opportunity for filing the protest petition against the submission of the final form by the Investigating Officer and the learned Chief Judicial Magistrate while relying on the prosecution report of the Investigating Officer, mechanically took cognizance of the aforesaid offences against the petitioner. Surprisingly, summons in pursuance of order of cognizance were sent to the petitioner’s residential address. 3. Surprisingly, summons in pursuance of order of cognizance were sent to the petitioner’s residential address. 3. The learned counsel for the petitioner further submits that so far as Section 211 I.P.C is concerned, the same provides that whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Since in the present case, the FIR was lodged by the petitioner against unknown, the penal provisions of Section 211 I.P.C. is not attracted in the admitted facts of the case. 4. It is also submitted by the learned counsel for the petitioner that so far as the offence under Section 182 I.P.C. is concerned, a prosecution can be initiated in terms with the procedure prescribed under Section 195 of the Cr.P.C. In the present case, the petitioner being the informant had submitted the written report before the Officer-in-charge of RIT Police Station, Adityapur, Seraikella-Kharsawan on 11.04.2009 which was forwarded to the In-charge of the Adityapur Police Station on 14.04.2009 for instituting a case under Sections 461/379 I.P.C. A formal FIR was drawn as Adityapur (RIT) P.S. Case No. 78 of 2009 on 14.04.2009. The said FIR was drawn under the orders of one Md. Nehaluddin, Police Inspector-cum-Officer-in-charge of Adityapur Police Station, who further directed one Anand Kumar Mishra, Sub-Inspector of Police of the said Police Station to investigate the matter. The case was thereafter investigated by Anand Kumar Mishra, the said Sub-Inspector, who after investigation, submitted the final form treating the case lodged by the petitioner to be false and filed a prosecution report against him. Since on the basis of the written report of the petitioner, the case was ordered to be instituted by the Police Inspector-cum-Officer-in-charge of Adityapur Police Station, the prosecution for the offence under Sections 182/211 I.P.C. could have been launched at the instance of the Police Inspector and not by the Sub-Inspector, who is sub-ordinate to him. 5. Since on the basis of the written report of the petitioner, the case was ordered to be instituted by the Police Inspector-cum-Officer-in-charge of Adityapur Police Station, the prosecution for the offence under Sections 182/211 I.P.C. could have been launched at the instance of the Police Inspector and not by the Sub-Inspector, who is sub-ordinate to him. 5. In support of his argument, the learned counsel for the petitioner places reliance on a judgment of the Hon’ble Supreme Court rendered in the case of “P.D. Lakhani & Anr. Vs. State of Punjab & Anr.”, reported in (2008) 5 SCC 150 and a judgment of this Court rendered in the case of “Kamal Duggal Vs. State of Jharkhand & Anr.” reported in 2016 (3) JLJR 317 . 6. Heard the learned counsel for the parties and perused the materials available on record. In the present case, apart from other grounds for quashing the FIR, the learned counsel for the petitioner has assiduously contended that the Investigating Officer Anand Kumar Mishra, S.I. had got no power to file prosecution report since Adityapur (RIT) P.S Case No. 78 of 2009 was lodged by the order of the Police Inspector-cum-Officer-in-charge of Adityapur Police Station and as such, in view of Section 195 of the Cr.P.C, only the Police Inspector or any officer to whom he was sub-ordinate, could have submitted the prosecution report against the petitioner. As such, the same suffers from legal infirmity and is liable to be quashed on this score alone. 7. To appreciate the contention of the learned counsel for the petitioner, I have perused the judgment of the Hon’ble Supreme Court in the case of “P.D. Lakhani” (supra). As such, the same suffers from legal infirmity and is liable to be quashed on this score alone. 7. To appreciate the contention of the learned counsel for the petitioner, I have perused the judgment of the Hon’ble Supreme Court in the case of “P.D. Lakhani” (supra). In the said case, the challenge was made to the complaint lodged by SHO, Police Station Jalandhar contending that the same was not lodged by the authority competent under Section 195(1) of the Cr.P.C. The Hon’ble Supreme Court taking note of the fact that the criminal proceeding was initiated by the order of Senior Superintendent of Police, Jalandhar and the Station House Officer had only made enquiry pursuant to the order of the Senior Superintendent of Police, Jalandhar, held that when a complaint is not made by the appropriate public servant i.e., the public servant concerned or some other public servant to whom he is subordinate, the court will have no jurisdiction to entertain the matter and any trial held pursuant thereto would be wholly without jurisdiction. The relevant paragraphs of the said judgment read thus: 14. The High Court, in our opinion, thus, committed a manifest error insofar as it held that as the complaint was addressed to SHO, he was the appropriate authority to lodge a complaint in respect of an offence punishable under Section 182 of the Penal Code. 15. 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. 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 the Senior Superintendent of Police, Jalandhar, 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. Even assuming that the same was done under the directions of the Senior Superintendent of Police, Jalandhar, 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. 16. 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. 8. Further, a Bench of this Court in the case of “Kamla Duggal” (supra), while relying on the judgment of “P.D. Lakhani” (supra) has quashed the complaint holding inter alia that the same was lodged by the investigating officer and not by the Station Officer i.e., the In-charge of Bistupur Police Station before whom the complainant had lodged complaint regarding theft. 9. In the present case also, since the present complaint/prosecution report has been filed by the investigating officer i.e., the Sub-Inspector, whereas the FIR being Adityapur (RIT) P.S. Case No. 78 of 2009 was lodged under the order of the Police Inspector-cum-Officer-in-charge, Adityapur Police Station, the initiation of criminal proceeding of G.O Case No. 78 of 2010 suffers from legal infirmity and thus the same cannot be sustained in law. 10. In view of the aforesaid discussion, the entire criminal proceeding in connection with G.O. Case No. 78 of 2010 arising out of Adityapur (RIT) P.S. Case No. 78 of 2009, corresponding to G.R. No. 271 of 2009 including the order of cognizance dated 05.05.2010 passed by the Chief Judicial Magistrate, Seraikella-Kharsawan under Sections 182/211 I.P.C. and the order of summons dated 19.05.2010 is hereby quashed and set-aside. 11. 11. The present Cr.M.P is accordingly allowed.