Criminal Misc. No. M-12014 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-12014 of 2009 Date of decision:- 05.7.2011 Nirmal Kumar Jain ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Parkash Deep Singh, Advocate for Mr. J.S. Bedi, Advocate for the petitioner. Mr. Vishal Munjal, Addl.A.G. Punjab. Mr. J.S. Lalli, Advocate for the complainant. RITU BAHRI J. The petitioner has sought quashing of Calendra under Section 182 IPC and all the proceedings arising therefrom. Brief facts of the case are that an FIR No.233 dated 26.7.2003 under Sections 419,447,452,380,323,148,149 and 506 IPC and under Section 25/27/54/59 IPC, registered at Police Station Salemtabri at the instance of petitioner against Pritam Kaur and Chamkaur Singh etc. The allegations in brief are that they had taken forcible possession of the land in question and committed theft. Ultimately, after conducting investigation, the SHO Baland Singh prepared and submitted a cancellation report before the Court of Sh. Jagdip Sood, JMIC, Ludhiana on 02.8.2008. The cancellation report was accepted vide order dated 02.8.2008. Thereafter, one of the accused namely Pritam Kaur alias Karnail Kaur wife of Charan Singh moved an application to the Criminal Misc. No. M-12014 of 2009 -2- SHO Police Station Salemtabri Ludhiana for initiation of proceedings under Section 182 IPC. A calendra was filed by the SHO Police Station Salemtabri on 18.2.2009. Alongwith the said calendra an application was moved informing the court that cancellation report had been submitted on 02.8.2008. Counsel for the petitioner has sought quashing of calendra under Section 182 IPC on the ground that the procedure prescribed under Section 195 Cr.P.C. could be taken by the officer concerned or by an officer senior to the one before whom the complaint is made. The provision of Section 195 Cr.P.C. reproduced below :- “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, 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 Criminal Misc. No. M-12014 of 2009 -3- evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit or attempt to commit, the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (I) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint : Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (I), the term “Court”, means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate : Provided that - (a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate Criminal Misc. No. M-12014 of 2009 -4- to the Civil or Revenue Court according to the nature of the case or proceedings in connection with which the offence is alleged to have been committed.” He has referred to Annexure P-1 i.e. the FIR, which was addressed to the Superintendent of Police on 25.7.2003. After investigation in this FIR, cancellation report has been filed and duly accepted on 02.8.2008. Thereafter, he has referred to the calendra under Section 182 IPC (Annexure P-4) which has been filed by the SHO Police Station Salemtabri, Ludhiana on 18.2.2009. Counsel for the petitioner has argued that as per Section 195 Cr.P.C. this calendra could not be initiated by the SHO. On notice, reply has been filed by the DSP, in which it has been specifically admitted that an FIR No.233 dated 26.7.2003 had been registered on the statement made by the petitioner. Subsequently on investigation a cancellation report has been prepared, which was accepted by the Magistrate on 02.8.2008. Calendra under Section 182 IPC was prepared by the SHO Police Station Salemtabri cannot be termed without jurisdiction and against the provision of Section 195 Cr.P.C. I have heard counsel for the parties and have gone through the case file carefully. The Supreme Court in P.D. Lakhani and another versus State of Punjab and another 2008(2) RCR (Criminal) 838 has examined the maintainability of the calendra when it has been filed by the SHO under Section 182 IPC. A criminal complaint has been addressed to the SSP, who had further investigated by the SHO. The SHO had found that the complaint was false and thereafter filed calendra under Section 182 IPC before the Magistrate against the complainant. This complaint was dismissed on the ground that it could not be lodged by the SHO. Under Section 195 Cr.P.C. complaint could be filed by the SSP or a superior officer and not by the inferior officer. The Station House Criminal Misc. No. M-12014 of 2009 -5- Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No.2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police, Jalandhar. 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. The Supreme Court finally observed as under :- “13. 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 Senior Superintendent of Police, Jallandhar, 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. 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 authorize 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 Criminal Misc. No. M-12014 of 2009 -6- such a provision. A power to delegate, when a complete bar is created, must be express; it being not an incidental power.” The ratio of judgment is fully applicable to the present case. As the FIR was lodged by the S.P. even though the inquiry had been conducted by the SHO. The SHO was not the authority to register the complaint under Section 182 Cr.P.C. The calendra under Section 182 IPC (Annexure P-4) dated 18.2.2009 is quashed in the interest of justice. The criminal miscellaneous petition is allowed. 05.7.2011 ( RITU BAHRI ) Vijay Asija JUDGE