Criminal Misc. No. M- 34306 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M- 34306 of 2009 Date of decision:- 18.03.2011 Ram Kumar ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Yogesh Goel, Advocate for the petitioner. Mr. Guninder S. Brar, AAG Punjab. RITU BAHRI J.(Oral) The present petition under Section 482 Cr.P.C. has been filed by the petitioner for quashing of Kalandra under Section 182 IPC dated 05.8.2009, registered at Police Station Sadar, Ludhiana (Annexure P-2). The petitioner had given a written complaint on 12.2.2009 to respondent No.2-Senior Superintendent of Police, Ludhiana against Sukhdev Singh son of Puran Singh for abusing him as he belongs to Scheduled Caste. Allegation in the complaint was that Sukhdev Singh came to the house of petitioner on 08.1.2009 and abused the petitioner and his family members as he did not report on duty in his house. A detailed inquiry was conducted by the Deputy Superintendent of Police, Ludhiana (Rural) regarding the abovementioned complaint. After inquiry, the Deputy Superintendent of Police found that the complaint to be false and recommended filing of the complaint. Thereafter, kalandra under Section 182 IPC was filed by respondent No.3-SHO Police Station Sadar, in the Court of Additional Chief Judicial Magistrate, Ludhiana Criminal Misc. No. M- 34306 of 2009 -2- on 05.8.2009. Counsel for the petitioner contends that as per Section 195 Cr.P.C. no cognizance under Section 182 of IPC can be taken without a complaint in writing by the public servant to whom the application is made or the public servant to whom the said public servant is administratively subordinate. He has referred to the complaint (Annexure P-1), which was addressed to the SSP Ludhiana by the complainant Ram Kumar on 12.2.2009. Annexure P-2 is the Kalandra under Section 182 IPC, which has been submitted in the Court of Additional Chief Judicial Magistrate by the SHO. This factual position has not been disputed by the counsel appearing for the State vide his reply, filed in the Court. I have heard learned 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 838 was seized of a complaint, which was made to SSP, who sent the complaint to SHO. The SHO found that complaint was false and thereafter filed a complaint under Section 182 IPC before the Magistrate against the complaint. The complaint was dismissed. The legality and the validity of the said report was questioned by the appellants before the High Court by filing an application under Section 482 Cr.P.C. Vide judgment dated 17.8.2005 the High Court had dismissed the application and held that the complaint was addressed to the SHO. He was the approprite authority to lodge a complaint in respect of an offence punishable under Section 182 IPC. The Supreme Court while allowing the appeal held that the investigation had taken place in pursuant to the order of SSP, Jalandhar. Section 195(1) Cr.P.C. provides that the complaint petition could have been filed only by an officer or his superior and not by inferior officer. The complaint was lodged by the Senior Criminal Misc. No. M- 34306 of 2009 -3- Superintendent of Police, the superior officer and not by his inferior officer. Therefore, the Magistrate has no jurisdiction to entertain the complaint, which was not made by the appropriate public servant. The observations of the Hon'ble Supreme Court in paragraph No.13 are 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 therefore. 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.” In view of this settled proposition of law this criminal miscellaneous petition is allowed and Kalandra under Section 182 IPC dated 05.8.2009, registered at Police Station Sadar, Ludhiana (Annexure P-2) is quashed. March 18, 2011 ( RITU BAHRI ) Vijay Asija JUDGE