Himachal Pradesh High Court
State Of Himachal vs Sher Singh on 2 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 2ndDAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) U/S 482 CRPC NO. 715 of
.
2019
Between:-
STATE OF HIMACHAL
PRADESH THROUGH
DISTRICT MAGISTRATE
CHAMBA, DISTRICT CHAMBA,
H.P.
......PETITIONER
(BY MR. SUDHIR BHATNAGAR AND
MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATE
GENERALS WITH MR. NARINDER
THAKUR AND GAURAV SHARMA,
DEPUTY ADVOCATE GENERALS)
AND
SH. AVINASH MAHAJAN, SON
OF SH. MAHAL CHAND
MAHAJAN, RESIDENT OF VPO
SIHUNTA, TEHSIL SIHUNTA,
DISTRCIT CHAMBA, H.P.
......RESPONDENT
(BY MR. SUMIT RAJ SHARMA,
ADVOCATE)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court
passed the following:
ORDER
By way of present petition filed under Section 482 of
the Code of Criminal Procedure, prayer has been made on behalf of
the petitioner for quashing of judgment dated 11.03.2019, passed
by learned Sessions Judge, Chamba, in Criminal Revision
No.3/2019, affirming the order dated 14.12.2018, passed by learned
.
Judicial Magistrate 1st Class, Dalhousie, District Chamba, H.P. in
Criminal Misc. Application No.1252 of 2018, titled Avinash Mahajan
vs. Sher Singh, whereby, learned trial court having taken note of the
complaint made by respondent under Section 156(3) Cr.P.C,
directed SHO concerned to register FIR under the relevant
2. to
provision of law and conduct investigation as per law.
Precisely, the facts of the case, as emerge from the
record are that respondent namely Avinash Mahajan made a
complaint to SHO Dalhousie, alleging therein that on 15.08.2018
function of Independence Day celebration was held at Govt. Sr.
Secondary School, Sihunta under the control and supervision of
Incharge PP Sihunta, namely, Sher Singh. He further alleged that
National Flag was hoisted by the Chief Guest, i.e. the Executing
Magistrate, Sihunta and such function was attended by school staff,
NCC cadets, students and other eminent personalities of Sihunta
vicinity, but showing utter disregard to the National Flag, saffron of
the National Flag was depicted downwards. Since, no action
whatsoever, came to be ever taken on the complaint made by the
respondent to the SHO concerned, he sent a written communication
to S.P. Chamba, but he also failed to take any action and as such,
respondent was compelled to file private complaint under Section
156(3) Cr.P.C in the Court of learned Judicial Magistrate 1 st Class,
Dalhousie, District Chamba, who vide order dated 14.12.2018, after
having perused the entire record including photographs and videos,
.
directed SHO, Dalhousie to lodge FIR against the erring official and
conduct investigation thereafter. Being aggrieved and dissatisfied
with the aforesaid direction issued by learned JMIC, Dalhousie,
District Chamba, petitioner-State preferred Cr. Revision Petition
bearing No.3 of 2019 in the Court of learned Sessions Judge,
petitioner-State has
Chamba, Division, Chamba, H.P., which came to be dismissed vide
judgment dated 11.03.2019.
approached
In the aforesaid background,
this Court in the instant
proceedings for quashing of judgment/order dated 11.03.2019,
passed by learned Sessions Judge, Chamba, Division, Chamba as
well as order dated 14.12.2018, passed by learned JMIC,
Dalhousie, directing police authorities to lodge FIR.
3. Having heard learned counsel representing the parties,
especially, learned Additional Advocate General vis-a-vis reasoning
assigned by both the courts below while ordering registration of the
case, this Court finds no merit in the present petition. Needless to
say, State is always expected to impartial and under obligation to
conduct impartial investigation, but in the instant case, material
available on record compels this Court to draw a conclusion that
police itself is shying away from registering the case for the reason
that same shall be registered against their own official. Otherwise
also, there appears to be no ground and justification to lay
challenge to aforesaid judgment and order passed by courts below
which otherwise appears to be based upon proper appreciation of
.
material as well as law on the point. If the grounds taken in the
petition at hand are perused in its entirety, it nowhere suggest that
there is specific denial, if any, on the part of the petitioner-State with
regard to alleged incident, rather effort has been made to confuse
the entire issue by taking a stand that on the alleged incident,
National Flag got entangled with the rope and if it is so, it is not
understood that why petitioner-State is shying from conducting the
fair impartial investigation. Needless to say, order directing SHO,
Police Station concerned, to lodge FIR against the erring official
came to be recorded on the basis of photographs and videos
placed on record by the respondent wherein admittedly, saffron of
National Flag is upside down, meaning thereby National Flag, on
the date of alleged incident, was unfurled in reversed position
showing saffron towards down side, whereas, it ought to have been
on the upper side. On the one hand, petitioner/State has tried to
defend erring official by stating that National Flag entangled with the
rope, but on the other hand while referring to the Police Rules, has
attempted to carve out a case that when there is specific provision
to deal with the situation on the administrative side, there is no reason
or occasion to lodge FIR. Needless to say, Cl ause (1), Explanation 4
of Section 2 of the Prevention of Insults to National Honour Act,
1971 provides penalty including imprisonment for intentionally
displaying the Indian National Flag. Since, in the case at hand,
allegation is with regard to insult to National Flag made by the
.
respondent, it is a duty of petitioner-State to conduct fair and
impartial inquiry. Though, Mr. Sudhir Bhatnagar, learned Additional
Advocate General while inviting attention of this Court to order
dated 14.12.2018, passed by learned JMIC, Dalhousie, vehemently
argued that no cogent and convincing reasoning has been assigned
r to
by the Magistrate while ordering registration of the case, but by now
it is well settled proposition of law that any Judicial Magistrate
before taking cognizance of the offence can order investigation
under Section 156(3) of the Code. It is also settled that at the stage
of ordering registration of FIR, Judicial Magistrate is not required to
examine the complainant on oath because it is not Court which is
taking cognizance, at this stage, rather only direction is issued to
police to conduct investigation after lodging FIR. Moreover, there is
no specific denial on the part of petitioner-State with regard to
lodging of complaint to SHO and thereafter to Superintendent of
Police, Chamba by the respondent before filing private complaint
under Section 156(3) Cr.P.C. Once, no action, if any, came to be
taken on the complaints made by the respondent to SHO and S.P.,
Chamba, he was compelled to approach Judicial Magistrate by way
of filing private complaint under Section 156 (3) Cr.P.C, who rightly
after having perused the material available made to him, directed
SHO to lodge FIR and investigate the matter.
4. Consequently, in view of the detailed discussion made
hereinabove, this Court find no illegality and infirmity in the
.
judgment dated 11.03.2019, passed by learned Sessions Judge,
Chamba, in Criminal Revision No.3/2019, affirming the order dated
14.12.2018, passed by learned Judicial Magistrate 1 st Class,
Dalhousie, District Chamba, H.P. in Criminal Misc. Application
No.1252 of 2018, titled Avinash Mahajan vs. Sher Singh and as
such, same are upheld, as a result of which, present petition fails
and dismissed accordingly. Before parting, this Court deems it fit to
direct SHO, Dalhousie, District Chamba to do the needful, in terms
of order dated 14.12.2018, passed by learned Judicial Magistrate 1 st
Class, Dalhousie, District Chamba, H.P., expeditiously, preferably
within a period of six weeks.
Present petition is disposed of in above terms, so also
the pending application(s), if any.
(Sandeep Sharma)
Judge
2nd December, 2021
(reena)
