Crl. Revision No.1395 of 2009 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. Crl. Rev. No. 1395 of 2009 (O&M) Date of decision: 20.07.2009 Yashpal Khanna and another ...Petitioners Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. Ramandeep Sandhu, Advocate, for the petitioners. Mr. Shailesh Gupta, DAG, Punjab. Rajan Gupta, J. The present revision petition has been preferred against order dated 24th April, 2009, whereby charges were framed against the petitioners by the trial court (Additional Sessions Judge, Jalandhar) under Sections 307, 332, 353, 186 read with Section 34 IPC and 27/54/59 of Arms Act. The case was registered on a written complaint made by Deputy Director, Income Tax (Investigation) Rohit Sharma, purportedly under Section 195 Cr.P.C. alleging that he alongwith Smt. Rajinder Kaur and other officials of the Income Tax Department and police officials reached House No.587-R, Model Town, Jalandhar in order to execute search warrants under Section 132 (1) of the Income Tax Act, 1961. They reached there at 8.40 A.M. on 11th December, 2008. Search warrants dated 10th December, 2008 were served upon Savita Khanna Crl. Revision No.1395 of 2009 2 wife of Yash Pal Khanna at about 8.45 A.M. on 11th December, 2008. Yashpal Khanna, whose name was also in the search warrant, was told that Income Tax Department wanted to carry out the search, on which he tried to lock himself in the bed-room. When the officials of the police and Income Tax Department resisted, said Yashpal Khanna started manhandling them. He took out a pistol from the drawer of his bed- room and started firing at them, as a result of which he received injury on his hand. It was further alleged that the petitioners fired 3-4 shots and thereafter the officials ran away to save their lives. It was also alleged that both the petitioners manhandled the team members and abetted the commission of offence. It was prayed that a case be registered against them. On the basis of the said complaint, a case under Sections 307, 353, 186 read with section 34 IPC and Section 27 of the Arms Act was registered. Investigation of the case was conducted. Both the accused were arrested and after completion of investigation, challan was put in the competent court. The accused were thereafter heard by the trial court on the question of framing of charge. Vide order dated 24th April, 2009. the court ordered framing of charge against both the accused (petitioners) under Sections 307, 332, 353, 186 read with Section 34 of Indian Penal Code and Section 27 of the Arms Act. Resultantly, charges were framed against the accused on the same day i.e. 24th April, 2009. Learned counsel for the petitioners has posed a serious challenge to the order framing charge on the ground that one of the Crl. Revision No.1395 of 2009 3 charges framed against the petitioners is under Section 186 of the Indian Penal Code. According to him, the same is not sustainable as cognizance of offence under Section 186 IPC can only be taken on a formal complaint being lodged with the court by the concerned public servant as provided in Section 195 Cr.P.C. According to him, no cognizance can be taken of offence under Section 186 IPC except in the manner provided by Section 195 Cr.P.C. In support of his contention, he has relied upon judgment of this court reported as Daulat Ram v. State of Punjab, 1962 (2) Crl. L.J. 286. Learned counsel for the State has, however, submitted that contention of counsel for the petitioners is totally misplaced. According to him, if case a report is lodged with the police disclosing both cognizable and non-cognizable offences, police is competent to investigate both. He has relied upon judgment reported as State of Orissa v. Sharat Chandra Sahu, 1997 (1) Recent Criminal Reports 737, in support of his contention. I have heard learned counsel for the parties and given careful thought to the facts of the case. It is evident that complaint was made by a public servant (Deputy Director, Income Tax) to the police regarding the entire episode. It was alleged that when officials of the Income Tax Department and the police arrived at the residence of the petitioners to execute search warrants, they were assaulted and even fired upon. Resultantly, FIR under Sections 307, 353, 186 read with section 34 IPC Crl. Revision No.1395 of 2009 4 and Section 27 of the Arms Act was registered. The commission of both the cognizable and non-cognizable (Section 186 IPC) offences was alleged in the FIR. The police after investigation presented a challan under Sections 307, 353, 186 read with section 34 IPC and Section 27 of the Arms. The trial court after hearing the accused as well as the prosecution, directed framing of charge under Sections 307, 353, 332, 186 read with section 34 IPC and Section 27 of the Arms. The petitioners have sought quashing of the order framing charge on the ground that entire proceedings are vitiated as the trial court charged the petitioners under Section 186 IPC though procedure envisaged by Section 195 Cr.P.C. was not complied with. However, I find no force in this argument of counsel for the petitioners. It is evident that both cognizable and non-cognizable offences were alleged in the FIR. There were, thus, no fetters on the powers of the police to investigate the offences alleged. The apex court in judgment reported as Sharat Chandra Sahu's case (Supra), after considering the scope of Section 155 Cr.P.C. held as under:- “10. Sub-section (4) of this Section cleary provides that where the case relates to two offences of which one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offence or offences are non-cognizable. 11. Sub-section (4) creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not Crl. Revision No.1395 of 2009 5 be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated a cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed. 12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non- cognizable offences, the police would be acting within the scope of its authority in investigating both theoffences as the legal fiction enacted in Sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable. 13. This Court in Praveen Chandra Mody v. State of M.P., AIR 1965 SC 1185 has held that while investigating a cognizable offence and presenting a charge-sheet for it, the police are not debarred from investigating any non- cognizable offence arising out of the same facts and including them in the charge-sheet. 14. The High Court was thus clearly in error in quashing the charge under Section 494 IPC on the ground that the Trial Court could not take cognizance of that offence unless a complaint was filed personally by the wife or any other Crl. Revision No.1395 of 2009 6 near relation contemplated by Clause (c) of the Proviso to Section 198 (1).” In the instant case, offences under Sections 307 and 353 IPC (both cognizable) are alleged apart from offence under the Arms Act. Only for cognizance of offence under Section 186 IPC, it has been provided in Section 195 Cr.P.C. that no court shall take cognizance except on a written complaint made by the public servant to the court. However, since the income-tax officials are alleged to have been fired upon and manhandled, offences under Sections 307, 353 and those under the Arms Act were also included in the FIR. Thus, the investigating agency was fully competent to investigate the commission of all the offences, cognizable and non-cognizable. The entire incident was a single transaction and could not have been split into parts. In that case some offences would have to be investigated by the police and a complaint would be lodged regarding the rest. Such a course of action is not envisaged by the code. In any case, when all the offences take place in a single incident, any attempt to split the offences and carry out separate proceeding, would lead to anomalous situations. In my view, the judgment relied upon by the counsel for the petitioners in Daulat Ram's case (supra) is not applicable to the facts of the present case. In the said case, only offence alleged to have been committed was under Section 182 IPC, which is a non-cognizable offence. A Tehsildar was sought to be prosecuted on the ground that he had furnished false information to the police and thus prosecution was launched against him Crl. Revision No.1395 of 2009 7 under Section 182 IPC. No non-cognizable offence was alleged to have been committed in the said case. The Tehsildar was later convicted. The apex court, thus, found that since procedure envisaged by Section 195 Cr.P.C. was not complied with, the cognizance of the case was wrongly taken. The trial was, thus, without jurisdiction and void ab initio. This, however, is not the situation in the instant case as is clear from the facts adumbrated in the foregoing paras. I, thus, find no merit in this petition. The same is hereby dismissed. (RAJAN GUPTA) JUDGE July 20, 2009 'rajpal' To be referred to the Reporters or not: Yes / No