IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-44790 of 2007 Date of decision : December 11, 2009 Kulwant Kaur and others Petitioners Versus State of Punjab Respondent CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR Present : Mr. D.D. Sharma, Advocate for the petitioners Mr. K.S. Pannu, DAG Punjab NIRMALJIT KAUR, J. (ORAL) This order shall dispose of Crl. Misc. Nos. M-44790 of 2007 and M-54230 of 2007. This is a petition under Section 482 Cr.P.C. for quashing of Calendra filed under Section 182 IPC vide report No. 32, dated 16.5.2007, P.S. Adampur, District Jalandhar. The brief facts relevant in the present petition is that the present petitioner filed a complaint to the Block Development and Panchayat Officer, Adampur, Jalandhar bringing to his notice that Sh. Surinder Pal, Panch and some of his associates had demolished the wall of the dharamshala of the village and had taken away the bricks. The Block Development and Panchayat Officer after verifying the facts made a complaint to the SHO, Police Station Adampur under his own signatures vide his complaint dated 24.2.2004. The said complaint is placed on record as Annexure P-1. After receiving this complaint, Block Development and Panchayat Officer, SHO Police Station Adampur entrusted the enquiry to Sh. Ravi Dutt, ASI, Police Station Adampur. Sh. Ravi Dutt, ASI after investigation got registered an FIR No. 30 dated 24.2.2004 under Sections 379, 427, 511 IPC. Thereafter, vide letter dated 27.2.2004, Block Development and Panchayat Officer informed the SHO that the resolution passed by the Panchayat intimating that the said wall Crl. Misc. No. M-44790 of 2007 2 had fallen during the tenure of the previous panchayat and as per the resolution of the panchayat, Sh. Surinder Pal, Panch and other persons are not at fault in demolishing the wall and a prayer to cancel the FIR was also recommended. Acting upon the said letter and the cancellation report submitted by the SHO, the Deputy Superintendent of Police, Sub Division (Rural) Jalandhar submitted the enquiry report dated 22.8.2004 and came to the following conclusions :- “Surinder Pal is member of the Panchayat and is a responsible person. He is also President of Dharamshala and cannot commit theft of bricks by demolishing the wall. The demolition of boundary wall of the dharamshala and theft of bricks is not proved. B.D.P.O. Adampur also sent his application no. 3283 dated 7.2.04 to the police station stating therein to cancel the FIR registered regarding demolition of boundary wall of the dharamshala. It has also been written that Surinder Pal, Panch and other persons are not guilty in demolishing this wall. I agree with the cancellation report prepared in this case.” Thus, the Deputy Superintendent of Police submitted the cancellation report to the Illaqa Magistrate. The Magistrate issued notice to complainant petitioner. After hearing the complainant, the Magistrate accepted the untraced report and the documents were, accordingly, returned to the concerned quarters. . Copy of the order dated 19.12.2006 is placed on record as Annexure P-5. Thereafter, SHO Police Station, Adampur prepared the calendra vide Report No. 32 dated 16.5.2007 under section 182 IPC against the present petitioners on the ground that since the complaint made by the petitioners to Block Development and Panchayat Officer, Crl. Misc. No. M-44790 of 2007 3 Adampur had been found to be false, they should be proceeded under Section 182 IPC. The said report under Section 182 moved by the SHO has been challenged on the ground that prosecution under Section 182 must be in writing by the officer to whom the same was addressed and not by some police officer. In the present case, the officer was Block Development and Panchayat Officer. Therefore, SHO had no jurisdiction to launch prosecution under Section 182 IPC. The sole question is whether the SHO had the locus standi to file the complaint. In this context, the provision of Section 195 of Cr.P.C. need to be noticed. The same reads as under:- “195(1) No Court shall take cognizance- (a) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 to 1860), or, (ii) of any abetment of, or 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 followign 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 evidence in a proceeding in any Court, or Crl. Misc. No. M-44790 of 2007 4 (iii) of any criminal conspiracy to commit, or attempt to commit or 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.” A perusal of the above provision show that the Court of competent jurisdiction can take cognizance of offence under Section 172 to 188 only on the complaint in writing by the public servant concerned or by an officer who is senior to him. In the present, the concerned public servant was the B.D.P.O. The SHO, therefore, had no jurisdiction. Reliance has been placed on the judgment of Apex Court rendered in the case of Daulat Ram vs. State of Punjab, A.I.R. 1962 Supreme Court 1206 as well as of judgments of this Court rendered in the cases of Sardari Lal vs. State of Punjab, 1992(2) R.C.R. (Criminal) 13 and Kulwinder Singh vs. State of Punjab and another, 2008(4) R.C.R. (Criminal) 418. The Apex Court in the case of Dault Ram (supra) held as under:- “Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under Section 182 is complete when a persons moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched that the complaint in writing should be made by the Tehsildar as the public servant Crl. Misc. No. M-44790 of 2007 5 concerned under Section 182 and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under Section 182 without the Tehsildar's complaint in writing is, therefore, without jurisdiction ab initio.” Even in the case of Sardari Lal (supra) while relying on the judgment of the Apex Court referred to above it was held that complaint under Section 182 of the Code was not competent and the trial Court could not take cognizance of the complaint as the same was not filed by SSP himself to whom the original complaint was made or by an officer senior to the SSP. This view is consistently held by various Courts. This Court in the case of Kulwinder Singh's (Supra) case while observing to the same effect and while relying on the various judgment of the Apex Court and of this Court held as under :- “This Court in Criminal Misc. No. 60096-M of 2004 (Surjit Singh v. State of Punjab) decided on 06.02.2008 while considering earlier judgment of Hon'ble the Supreme Court in Daulat Ram v. State of Punjab, AIR 1962 Supreme Court 1206, opined as under:- Once the position of law on the issue whether calendra under Section 182 IPC can be presented under the signatures of any authority who though subordinate to the person to whom the complaint was made but on the direction of the authority concerned is already settled and it has been opined that in case the prosecution is to be launched under section 182 IPC, the complaint in writing should be made by the public servant concerned and not his subordinate and mere direction Crl. Misc. No. M-44790 of 2007 6 by the competent authority to present calendra will not comply with the provisions of law. In the present case, the complaint has been filed by the petitioner to the Senior Superintendent of Police but calendra has been presented by the Assistant Sub Inspector, which cannot be held to be valid in terms of provisions of Section 195(1)(iii) of the Code of Criminal Procedure. In view of my above discussion on the issue regarding the competence of the person to present calendra before the Court being clear, in the present case, the calendra having been presented by S.H.O., Police Station Mahilpur, is incompetent as the complaint was not made to him but was made to the Senior Superintendent of Police, Hoshiarpur and Deputy Inspector General of Police, Jalandhar Range, Jalandhar.” The judgments referred above are duly applicable to the facts of the present case. It is not denied that the complaint was made by the petitioner to the Block Development and Panchayat Officer who further sent the same to the SHO for registration of the FIR. Thereafter, the FIR was cancelled on the recommendation made by the Block Development and Panchayat Officer himself. Therefore, the complaint under Section 182 should have been made by the public servant himself who in the present case was the Block Development and Panchayat officer or any other senior official of the department and not the SHO. Thus, the report under Section 182 is without jurisdiction and is liable to be quashed being barred by Section 195 of the Cr.P.C. Crl. Misc. No. M-44790 of 2007 7 Accordingly, the present petition is allowed and calendra filed under Section 182 IPC vide report No. 32, dated 16.5.2007, P.S. Adampur, District Jalandhar (P/6) is, accordingly, quashed. (Nirmaljit Kaur) 11.12.2009 Judge reena