State of Himachal Pradesh Through District Magistrate Chamba v. Avinash Mahajan, Son of Sh. Mahal Chand Mahajan
2021-12-02
SANDEEP SHARMA
body2021
DigiLaw.ai
ORDER : By way of present petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing of judgment dated 11.03.2019, passed by learned Sessions Judge, Chamba, in Criminal Revision No.3/2019, affirming the order dated 14.12.2018, passed by learned Judicial Magistrate 1st Class, Dalhousie, District Chamba, H.P. in Criminal Misc. Application No.1252 of 2018, titled Avinash Mahajan vs. Sher Singh, whereby, learned trial court having taken note of the complaint made by respondent under Section 156(3) Cr.P.C, directed SHO concerned to register FIR under the relevant provision of law and conduct investigation as per law. 2. Precisely, the facts of the case, as emerge from the record are that respondent namely Avinash Mahajan made a complaint to SHO Dalhousie, alleging therein that on 15.08.2018 function of Independence Day celebration was held at Govt. Sr. Secondary School, Sihunta under the control and supervision of Incharge PP Sihunta, namely, Sher Singh. He further alleged that National Flag was hoisted by the Chief Guest, i.e. the Executing Magistrate, Sihunta and such function was attended by school staff, NCC cadets, students and other eminent personalities of Sihunta vicinity, but showing utter disregard to the National Flag, saffron of the National Flag was depicted downwards. Since, no action whatsoever, came to be ever taken on the complaint made by the respondent to the SHO concerned, he sent a written communication to S.P. Chamba, but he also failed to take any action and as such, respondent was compelled to file private complaint under Section 156(3) Cr.P.C in the Court of learned Judicial Magistrate 1st Class, Dalhousie, District Chamba, who vide order dated 14.12.2018, after having perused the entire record including photographs and videos, directed SHO, Dalhousie to lodge FIR against the erring official and conduct investigation thereafter. Being aggrieved and dissatisfied with the aforesaid direction issued by learned JMIC, Dalhousie, District Chamba, petitioner-State preferred Cr. Revision Petition bearing No.3 of 2019 in the Court of learned Sessions Judge, Chamba, Division, Chamba, H.P., which came to be dismissed vide judgment dated 11.03.2019. In the aforesaid background, petitioner-State has approached this Court in the instant proceedings for quashing of judgment/order dated 11.03.2019, passed by learned Sessions Judge, Chamba, Division, Chamba as well as order dated 14.12.2018, passed by learned JMIC, Dalhousie, directing police authorities to lodge FIR. 3.
In the aforesaid background, petitioner-State has approached this Court in the instant proceedings for quashing of judgment/order dated 11.03.2019, passed by learned Sessions Judge, Chamba, Division, Chamba as well as order dated 14.12.2018, passed by learned JMIC, Dalhousie, directing police authorities to lodge FIR. 3. Having heard learned counsel representing the parties, especially, learned Additional Advocate General vis-a-vis reasoning assigned by both the courts below while ordering registration of the case, this Court finds no merit in the present petition. Needless to say, State is always expected to impartial and under obligation to conduct impartial investigation, but in the instant case, material available on record compels this Court to draw a conclusion that police itself is shying away from registering the case for the reason that same shall be registered against their own official. Otherwise also, there appears to be no ground and justification to lay challenge to aforesaid judgment and order passed by courts below which otherwise appears to be based upon proper appreciation of material as well as law on the point. If the grounds taken in the petition at hand are perused in its entirety, it nowhere suggest that there is specific denial, if any, on the part of the petitioner-State with regard to alleged incident, rather effort has been made to confuse the entire issue by taking a stand that on the alleged incident, National Flag got entangled with the rope and if it is so, it is not understood that why petitioner-State is shying from conducting the fair impartial investigation. Needless to say, order directing SHO, Police Station concerned, to lodge FIR against the erring official came to be recorded on the basis of photographs and videos placed on record by the respondent wherein admittedly, saffron of National Flag is upside down, meaning thereby National Flag, on the date of alleged incident, was unfurled in reversed position showing saffron towards down side, whereas, it ought to have been on the upper side. On the one hand, petitioner/State has tried to defend erring official by stating that National Flag entangled with the rope, but on the other hand while referring to the Police Rules, has attempted to carve out a case that when there is specific provision to deal with the situation on the administrative side, there is no reason or occasion to lodge FIR.
Needless to say, Clause (1), Explanation 4 of Section 2 of the Prevention of Insults to National Honour Act, 1971 provides penalty including imprisonment for intentionally displaying the Indian National Flag. Since, in the case at hand, allegation is with regard to insult to National Flag made by the respondent, it is a duty of petitioner-State to conduct fair and impartial inquiry. Though, Mr. Sudhir Bhatnagar, learned Additional Advocate General while inviting attention of this Court to order dated 14.12.2018, passed by learned JMIC, Dalhousie, vehemently argued that no cogent and convincing reasoning has been assigned by the Magistrate while ordering registration of the case, but by now it is well settled proposition of law that any Judicial Magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code. It is also settled that at the stage of ordering registration of FIR, Judicial Magistrate is not required to examine the complainant on oath because it is not Court which is taking cognizance, at this stage, rather only direction is issued to police to conduct investigation after lodging FIR. Moreover, there is no specific denial on the part of petitioner-State with regard to lodging of complaint to SHO and thereafter to Superintendent of Police, Chamba by the respondent before filing private complaint under Section 156(3) Cr.P.C. Once, no action, if any, came to be taken on the complaints made by the respondent to SHO and S.P., Chamba, he was compelled to approach Judicial Magistrate by way of filing private complaint under Section 156 (3) Cr.P.C, who rightly after having perused the material available made to him, directed SHO to lodge FIR and investigate the matter. 4. Consequently, in view of the detailed discussion made hereinabove, this Court find no illegality and infirmity in the judgment dated 11.03.2019, passed by learned Sessions Judge, Chamba, in Criminal Revision No.3/2019, affirming the order dated 14.12.2018, passed by learned Judicial Magistrate 1st Class, Dalhousie, District Chamba, H.P. in Criminal Misc. Application No.1252 of 2018, titled Avinash Mahajan vs. Sher Singh and as such, same are upheld, as a result of which, present petition fails and dismissed accordingly. Before parting, this Court deems it fit to direct SHO, Dalhousie, District Chamba to do the needful, in terms of order dated 14.12.2018, passed by learned Judicial Magistrate 1st Class, Dalhousie, District Chamba, H.P., expeditiously, preferably within a period of six weeks.
Before parting, this Court deems it fit to direct SHO, Dalhousie, District Chamba to do the needful, in terms of order dated 14.12.2018, passed by learned Judicial Magistrate 1st Class, Dalhousie, District Chamba, H.P., expeditiously, preferably within a period of six weeks. Present petition is disposed of in above terms, so also the pending application(s), if any.