Crl. Revision No.1166 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Crl. Revision No.1166 of 2003 Date of decision : 15-4-2009 Wazir Singh ....Petitioner VERSUS The State of Haryana and another ....Respondents Present: Mr. Sanjeev Gupta, Advocate, for the petitioner. Mr. Praduman Yadav, DAG, Haryana. Mr. Bijender Dhankhar, Advocate, for respondent No.2. 2. Crl. Misc. No.23900-M of 2003 S.S. Yadav ....Petitioner VERSUS State of Haryana and another ....Respondents Present: Mr. Sandeep Mann, Advocate, for the petitioner. Mr. Praduman Yadav, DAG, Haryana. Mr. Bijender Dhankhar, Advocate, for respondent No.2. Crl. Revision No.1166 of 2003 -2- 3. Crl. Misc. No.42285-M of 2006 S.S. Yadav ....Petitioner VERSUS State of Haryana and another ....Respondents Present: None for the petitioner. Mr. Praduman Yadav, DAG, Haryana. Mr. Bijender Dhankhar, Advocate, for respondent No.2. CORAM:- HON'BLE MR. JUSTICE A.N. JINDAL A.N. JINDAL, J. This order of mine shall dispose of Crl. Revision No.1166 of 2003 titled as Wazir Singh vs. The State of Haryana, Crl. Misc. No.23900-M of 2003 titled as S.S. Yadav vs. State of Haryana and another and Crl. Misc. No.42285-M of 2006 titled as S.S. Yadav vs. State of Haryana and another against common order dated 14-2-2003 passed in Crl. Revision No.1166 of 2003 and Crl. Misc. No.23900-M of 2003 by the learned Addl. Sessions Judge, Rewari and order dated 17-3-2006 passed in Crl. Misc. No.42285-M of 2006 by the learned Sessions Judge, Rewari setting aside the order dated 16-5-2003 summoning the respondent Manjit Singh Ahlawat, IPS, the then SP, Rewari to face prosecution under Section 29 of the Police Act. Neither the State nor the Court has come forward to challenge the impugned order but the revision and miscellaneous petitions Crl. Revision No.1166 of 2003 -3- have been preferred by the persons who have nothing to do with the matter into controversy. The factual background of the case is that SHO, Police Station, Dharuhera, District Rewari presented a challan in the court of ACJM, Rewari seeking prosecution of the two accused namely Pradeep Kumar and Raj Kumar under Section 61 of the Punjab Excise Act. Raj Kumar went absent and vide order dated 23-10-2001, the Magistrate issued the warrants of his arrest returnable on 22-11-2001. At the same time DSP (H) Rewari was directed to appear before him on the next date if the warrants remain unexecuted. On 22-11-2001, warrants of arrest of Raj Kumar were received back unexecuted. Therefore, while issuing fresh warrants for 6-12-2001 directed DSP (H) to appear before him on the said date, if the warrants remain unexecuted. DSP Headquarter did not appear to explain, therefore the Magistrate issued show cause notice against him and also issued fresh warrants for 19-12-2001. SP Rewari was directed to file an affidavit giving details of the efforts ensuring the arrest of the accused Raj Kumar if the warrants remain unexecuted. He was also directed to inform the Court as to who was responsible for non-return of notice to the surety and the action against the offender. It may be noticed that Raj Kumar could not be arrested till 2-1-2002. Therefore, SP Rewari was summoned by him to appear before him for 15-1-2002 to show cause against his disobedience to the directions issued by the Court. Since SP Rewari did not appear despite the sufficient opportunities given to him to file an affidavit then following order was passed:- Crl. Revision No.1166 of 2003 -4- “…………………………………… In the circumstances of the case, there is a clear and unambiguous disobedience of the order of the Court without any valid reason and the inaction on the part of this at this crucial stage may amount to abetment of the contempt of this Court and such omission could embolden the people to flout the orders of the Courts, which would give a fatal blow to the system of administration of justice and the rule of law would become a thing of the past and the society would suffer in the ultimate making. The inaction would percolate down to all the ranks and files of the police department and the main agency at the disposal of the Courts for execution of the Orders of the Courts would remain only on the papers and execution of the orders of the Courts would remain at the mercy of the police officials/Officers and institution of the Judiciary would be subjugated and this all would lead to the erosion of the faith of the common man in the system of administration of justice. The trust and confidence of people in the judiciary cannot be allowed to be forfeited in the face of disobedience of the orders of this Court. Such acts of disobedience if allowed to go unchecked with impunity, will have lethal effect of discrediting the Courts and destablishing the system of administration of justice. Having regards to the facts and circumstances of the case, this Court is of the considered opinion that despite the fact that Court should be very slow in resorting to its suo motu powers enshrined under Section 190 (c) of the Code of Criminal Procedure, 1973, this is a case which warrants indulgence of this Court. The opportunity to explain his position having been granted to the respondent, this Court takes suo motu cognizance of the commission of offence punishable under section 29 of the Police Act, 1861. This case would be titled “Court of A.C.J.M. Rewari on its own motion Versus Manjit Singh Ahalawant.” It be registered separately. Hereinafter Manjit Singh Ahlawat, S.P. would be referred to as accused. Accused Manjit Singh Ahlawat be summoned for 22- Crl. Revision No.1166 of 2003 -5- 1-2002. Needless to say that this Court is alive to the provisions of Section 191 of the Code of Criminal Procedure, 1973 and those would be taken due care as and when occasion arises for the same.” Against the aforesaid order, revision preferred by the respondent was accepted with the following observations. “A complaint outside the provisions of Section 340 Cr.P.C. cannot be filed by any Civil, Revenue or Criminal Court, under its inherent powers except in case of High Court under Section 482 Cr.P.C. It was held in AIR 1945 Madras 458 (as referred in P. Ramanathan Aiyer’s commentary on Code of Criminal Procedure 6th addition-Volume 3 page 2554) that when the Code has made a provision for circumstances under which a court can file complaint, it must be considered to be exhaustive in respect of it and to limit the powers of the Court in making such complaints. Section 195 and 340 Cr.P.C. should be read together. Section 195 describes the offences in respect of which a complaint can be filed, whereas Section 340 Cr.P.C. describes the procedure for making complaint by the Court. It is rightly pointed out by learned counsel that it is not possessed with any inherent powers to make such orders as may be necessary to secure the ends of justice or to prevent abuse on process of the Court like Section 482 Cr.P.C. which confers such like powers or Section 151 CPC which gives such powers on a civil court. Reference can be made to B.P. Singh vs. Kale Singh AIR 1977 S.C. 2432. It was further observed that the offence u/s 29 of the Punjab Police Act did not fall within the purview of Section 195 (1) (b) of the Criminal Procedure Code as to entail the filing of the complaint by the Magistrate. Further the offence allegedly committed was directly in relation to the duties of a pubic servant inviting the Court to seek sanction as provided u/s 197 Cr.P.C.” Crl. Revision No.1166 of 2003 -6- The Revisional Court also observed that the mere fact that there is reason to believe that offence has been committed is not sufficient to justify a complaint unless it is expedient in the interest of justice and unless there are reasonable chances of conviction otherwise, ordinarily, institution of prosecution has been discouraged. First of all the person aggrieved against the impugned order would have been either the Court or the State but none of them have challenged the order. As such the revision petitions two filed by an advocate and third by a constable are nothing but misuse of the process and are not maintainable. Now coming to the other aspect, the order passed by the Revisional Court, suggests no interference. Certainly, if the Court wanted to initiate proceedings against the inaction on the part of a public servant which completely and directly is traceable to his duties then the bar under Section 197 Cr.P.C. should have been crossed. As such previous sanction of the competent authority was the sine quo for filing a complaint under Section 195 (1) (b) of the Criminal Procedure Code. Not only this, in such situation, the offence must have been covered by any of the provisions of Section 195 Cr.P.C. which reads as under:- “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 Crl. Revision No.1166 of 2003 -7- (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 section 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 (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), 1[except on the complaint in writing of that Court by such officer of the Court as that Court may authorise in writing in this behalf, 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 (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to Crl. Revision No.1166 of 2003 -8- 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 (1), 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 to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” As such, the Court of Judicial Magistrate was not authorized in any manner to file the complaint u/s 195 Cr.P.C. and he could only refer the matter to his immediate official superior for initiating action against the respondent. That too after following the procedure as envisaged under the appropriate provisions of law to lodge a Crl. Revision No.1166 of 2003 -9- complaint. No sanction of the Government as per Section 197 Cr.P.C. was obtained. Therefore, it was misuse of the process and Magistrate exceeded his powers while proceeding against the respondent. Surprisingly enough, the present three petitions having been filed, not by the State or the officer, but filed by Mr. S.S. Yadav, Advocate and one filed by a constable namely Wazir Singh must be discouraged, being a flagrant misuse of the process. Mr. S.S. Yadav, Advocate or the Wazir Singh are not aggrieved by the impugned orders and they have nothing to do with the case. Thus without commenting further over the matter, I must say that, the induction of such petitions would put the law into hotch potch and the Courts would be over flooded with superfluous and unnecessary litigation which need to be discouraged. Hence no ground for interference is made out. Dismissed. (A.N. JINDAL) April 15, 2009 JUDGE manju