Criminal Misc. No. M-35706 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-35706 of 2010 Date of Decision:December 08, 2010 Gurdial Singh ...........Petitioner Versus State of Punjab and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.G.S.Sandhawalia, Advocate for the petitioner. ** Sabina, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (for short`Cr.P.C.') for quashing of Calandra No. 132 dated 29.10.2007 filed on 3.11.2007 under Section 182 of the Indian Penal Code (for short `IPC') (Annexure P19) in the Court of Special Judicial Magistrate Kapurthala and all subsequent proceedings arising therefrom including the framing of charge dated 9.6.2010 (Annexure P20) and order dated 29.9.2010 (Anneuxre P22) passed by the Sessions Judge, Kapurthala rejecting the revision on the ground that the petitioner had lodged FIR No. 59 dated 28.5.2005 under Section 498-A of the Indian Penal Code . The case of the petitioner in brief is that the daughter of the petitioner Sukhwinder Kaur was married with respondent No.3 on Criminal Misc. No. M-35706 of 2010 2 10.4.2003 at village Kanjli. At that time, respondent No.3 was serving as a Linesman with the Punjab State Electricity Board, Patiala. Thereafter, respondent No.3 immigrated to Canada. Sukhwinder Kaur also went to Canada in September, 2003. Sukhwinder Kaur was being forced to divorce respondent No.3 and remarry with the younger brother of respondent No.3 so as to facilitate his immigration to Canada. However, Sukhwinder Kaur did not agree to this. Respondent No.3 started demanding money from Sukhwinder Kaur. Respondent No.3 and Sukhwinder Kaur came back to India on 8.9.2004 and a serious dispute arose between them. Sukhwinder Kaur lodged a complaint on 13.11.2004. Thereafter, Sukhwinder Kaur left for Canada on 19.11.2004. Respondent No.3 approached the Magistrate under Section 156(3) Cr.P.C. for lodging of an FIR against Sukhwinder Kaur and her relatives under Sections 406, 420, 379, 380, 506, 120-B IPC. However, a compromise was effected between the parties. Respondent No.3 also filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal right. The FIR lodged against the petitioner and others at the instance of respondent No.3 was investigated and a cancellation report was submitted. FIR No. 59 dated 28.5.2005 was lodged at Police Station Kotwali, Kapurthala under Section 498-A IPC on a complaint moved by Sukhwinder Kaur. Now the marriage between Sukhwinder Kaur and respondent No.3 has been dissolved by Hon'ble the Supreme Court of British Columbia vide order dated 24.2.2007. Respondent No.3 moved an application on 28.2.2007 before the Senior Superintendent of Police, Kapurthala. that the proceeding under Section 182 Cr.P.C. be initiated against the petitioner. The petition filed by respondent No.3 under Section 9 of the Hindu Marriage Act,1955 was dismissed on Criminal Misc. No. M-35706 of 2010 3 19.5.2007. In view of the divorce granted by Hon'ble the Supreme Court at British Colombia on 24.2.2007, the Station House Officer, Police Station Kotwali, Kapurthala, presented Calandra under Section 182 IPC on 29.10.2007 against the petitioner and the petitioner has been summoned in the said proceedings. Hence, the present petition. Learned counsel for the petitioner has submitted that the Calandra could only be presented by the Senior Superintendent of Police Kapurthala and not by the Station House Officer. In support of his arguments, learned counsel has place reliance P.D.Lakhani and another vs. State of Punjab and another 2008(2)RCR(Criminal) 838 wherein it has been held 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 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 Criminal Misc. No. M-35706 of 2010 4 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.” Respondent No.2 had lodged FIR No. 420 dated 8.12.2004 under Sections 406, 420, 379, 380,506, 120-B, IPC registered at Police Station Civil line Patiala. After investigation, the cancellation report was presented by the Investigating Agency and the same was accepted by the Magistrate in the presence of counsel for respondent No.3 and his father. Criminal Misc. No. 2524 of 2009 filed by respondent No.2 challenging acceptance of cancellation report was dismissed by this Court vide order dated 9.3.2009 (Annexure P18). The complaint filed by respondent No. 3 under Sections 406, 420, 379, 380,506 120-B IPC (Annexure P2) is pending against the petitioner and others. Respondent No.3 had filed a petition seeking quashing of the FIR No. 59 dated 28.5.2005 under Section 498-A IPC registered at Police Station Kotwali, Kapurthala. The said petition was allowed by this Court vide order dated 11.10.2006 (Annexure P10) wherein it was held as under:- “Other than the above the complainant had made a reference in the impugned FIR to the words spoken by Sukhwinder Kaur to him or others which show that the substance of the FIR is based on the perception of Sukhwinder kaur who herself has not been cited as a witness in the challan and has not given any statement under Section 161 of the Code of Criminal Procedure. The allegations in themselves are not specific and are vague. It is further the admitted case of the parties that all through Criminal Misc. No. M-35706 of 2010 5 Sukhwinder Kaur i.e. the victim has been in Canada and continues to be there. Having noticed all the facts and the relevant circumstances, I find that the FIR has been lodged for malafide reasons and proceedings emanating therefrom are malicious with ulterior motive and for wreaking vengeance on the accused for harassment. Accordingly, this petition is allowed. FIR bearing No. 59 dated 28.5.2009 under Section 498- A IPC Police Station Kotwali Kapurthala Annexure P2 is hereby quashed.” Thus, this Court while quashing the FIR held that the same had been lodged for malafide reasons and proceedings emanating therefrom are malicious with ulterior motive and for wreaking vengeance on the accused for harassment. In these circumstances, respondent No.3 moved an application Annexure P19 to the Senior Superintendent of Police Kapurthala for initiation of proceedings under Section 182 IPC against the petitioner and others. Vide order dated 09.6.2010, a charge was ordered to be framed against the petitioner under Section 182 IPC. Aggrieved by the said order, petitioner preferred a revision petition. Learned Sessions Judge dismissed the petition vide order dated 29.9.2010 (Annexurre P22). Para 4 of the said impugned order reads as under:- “After hearing the counsel for both the parties and going through the provisions of Section 195 Cr.P.C., I find that in the present case, the Calendra could be presented only by SSP Kapurthala or any officer senior to him. The order dated 17.10.2007 on record Criminal Misc. No. M-35706 of 2010 6 shows that the said Calendra has been ordered to be presented by the orders of the SSP Kapurthala, in compliance with the directions of SSP Kapurthala, the said Calendra has been prepared and presented by his subordinate officer SHO concerned. The entire record shows that the Calendra is said to have been presented by SSP Kapurthala, since the same has been presented under his directions. He was not supposed to go and present the Calendra personally before the Special Judicial Magistrate. So, there is not any illegality in the procedure as required to be adopted under Section 195 Cr.P.C.” The reasons given by the learned Sessions Judge are sound reasons. Thus, in the present case, the Calendra has been presented on the directions of the Senior Superintendent of Police, Kapurthala by the concerned Station House Officer. In these circumstances, the judgment relied upon by the learned counsel for the petitioner fails to advance the case of the petitioner. Dismissed. ( Sabina ) Judge December 08, 2010 arya