CRM No. M 10791 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 10791 of 2009 Date of decision: 14.01.2011 Devinder Singh ........ Petitioner Versus State of Haryana and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Ashit Malik, Advocate for the petitioner Mr. Sidrath Sarup, AAG, Haryana for the respondent - State -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. (Oral) This is a petition under section 482 Cr.P.C for quashing of proceedings initiated by the Police under Section 182 IPC pertaining to DDR No. 26 dated 22.04.2007, Police Station Shahabad, District Kurukshetra recorded at the instance of the petitioner. It is contended by the learned counsel for the petitioner that the police did not initiate any action against the accused persons ini pursuance to the FIR. Instead, filed Kalandra under Section 182 IPC against the petitioner. Meanwhile, the petitioner filed complaint under Section 323, 324, 325, 326, 504, 506, 148, 149, 120-B, 109 IPC against the accused CRM No. M 10791 of 2009 2 persons. The Magistrate, after recording preliminary evidence, summoned all the accused persons under Section 323, 324, 326, 506, 149 IPC vide order dated 14.07.2008. It is contended that the proceedings under Section 182 IPC cannot proceed in view of the fact that the Magistrate has already taken cognizance of the complaint and in fact has summoned the accused persons to face the trial in the complaint filed by the petitioner. Allegations in the complaint before the Magistrate are identical as in DDR No. 26 dated 22.04.2007, P S Shahabad, District Kurukshetra. Reliance is placed on the judgment rendered by the Apex Court in the case of State of Punjab v. Brij Lal Palta reported as AIR 1969 SC 355 as well as the judgments rendered by this Court in the cases of Ramesh Chand v. State of Haryana reported as 2006(4) RCR (Criminal) 718 and Babita v. State of Punjab and another reported as 2008(4) RCR (Criminal) 516. In para 7 and 8 of the judgment rendered in the case of Brij Lal Palta (supra), the Apex Court held:- “7. It seems to us that so far as prosecution under S 211 of the Penal Code is corrected, once a complaint filed by the informant is being proceeded with which is based on the same facts and allegations on which the first information was registered it is not open to a Magistrate to take cognizance of any offence alleged to have been committed under that Section unless there has been proper compliance with the provisions of S 195 (1) (b) of the Cr.P.C. It will lead to very anomalous results if any other view is accepted e.g., if the complaint is ultimately dismissed and the Magistrate refuses to lodge a complaint under Section 195 (1) (b) CRM No. M 10791 of 2009 3 its provisions will be defeated or circumvented if the police can move the Magistrate to take cognizance on a police report of an offence under Section 211. We are fortified in the view we are taking by the following observation in M L Sethi's case (AIR 1967 SC 528). The question on which the decision in the present case hinges is whether it can be held that any proceedings in any court existed when that Magistrate took cognizance. If any proceeding in any Court existed and the offence under S 211 IPC in the complaint filed before him was alleged to have been committed in such a proceeding, or in relation to any such proceeding, the Magistrate would have been barred from taking cognizance of the offence. On the other hand if there was no proceedings in any Court at all in which, or in relation to which, the offence under S 211 could have been alleged to have been committed, this provision barring cognizance would not be attracted at all.” 8. As regards the position in similar circumstances in respect of an offence under S 182, the conflict of judicial opinion has already been notice. The text books are full of a vast number of cases taking one view or the other. In our opinion, the present case is of the type where the facts stated in the police report disclosed an offence under s. 211, Indian Penal Code. It is true that the offence under Section 182 is distinct from the one under S 211 though the latter is more serious and may include the offence under the former section. The Magistrate can take cognizance of an offence under S 182 on a complaint in writing of the police officer by virtue of the provisions contained in Section 195(1) (a) of the Cr.P. Code. But it would virtually lead to the CRM No. M 10791 of 2009 4 circumvention of the provisions of Section 195(1) (b) if the proceedings under Section 182 can continue where the offence disclosed is covered by Section 211 Indian Penal Code and a complaints pending which has been filed by the informant on the same facts and allegations as were contained in his first information report. Similar view was taken by this Court in Ramesh Chand's case (supra) by holding in para 5 and 6 as under:- “5. This court in Crl. Misc. No. 18769 M of 2005, decided on September 13, 2006, while following the judgments of the Supreme Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, 1982 (3) SCC 150 and H S Bains v. State (Union Territory of Chandigarh), AIR 1980 SC 1883 and a Division Bench decision of the Patna High Court in Munilal Thakur and others v. Nawal Kishore Thakur and another, 1985 Criminal Law Journal 437, has held that a Magistrate, even after accepting the final report after hearing the complainant, can still take cognizance of the offence upon a complaint on same or similar allegations of fact. 6. In view of the admitted facts that in the private complaint filed by the petitioner, the accused have been summoned, though they were found innocent by the police in the FIR and keeping in view the aforesaid settled proposition of law, at this stage it cannot be said that the allegations levelled by the petitioner in the FIR are false. Therefore, in my opinion, the proceedings initiated by the police against the petitioner under Section 182 IPC are liable to be quashed. The facts are not disputed by the learned State counsel. Thus, the Magistrate having taken cognizance of the matter CRM No. M 10791 of 2009 5 arising out of the same allegation as alleged in the DDR, the proceedings under Section 182 IPC cannot be allowed to proceed for having given wrong information to the police. The continuation of the proceedings, therefore, may result in miscarriage of justice. As such, the proceedings initiated by the police against the petitioner are liable to be quashed. Accordingly, the petition is allowed and Kalandra submitted by the police in DDR No. 26 dated 22.04.2007 P.S. Shahabad, District Kurukshetra under section 182 IPC and consequence proceedings arising out of the same are quashed. (Nirmaljit Kaur) Judge 14.01.2011 mohan