Punjab-Haryana High Court
Munish Kumar Dhawan And Another vs State Of Ut Chandigarh on 3 April, 2024
Neutral Citation No:=2024:PHHC:045131
2024:PHHC: 045131
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-34520-2023
Reserved on:- 21.02.2024
Pronounced on:-03.04.2024
Munish Kumar Dhawan and another ...Petitioners
vs.
State of UT Chandigarh ...Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. P.S. Ahluwalia, Advocate with
Ms. Bhavi Kapur, Advocate, for the petitioners.
Mr. Manish Bansal, Public Prosecutor with
Mr. Rajiv Vij, Addl. Public Prosecutor,
for respondent-UT Chandigarh.
*****
HARKESH MANUJA J.
1. By way of present petition filed under Section 482 of the
Code of Criminal Procedure, 1973, prayer has been made for
quashing of FIR No.04, dated 07.01.2022, registered at Police Station
Central Sector 17, Chandigarh for an offence punishable under
Section 188 IPC along with order dated 29.03.2023 passed by the
Court of Chief Judicial Magistrate, Chandigarh, convicting/passing
order of sentence against the petitioners on having been pleaded
guilty.
2. The petitioners were arrayed as accused in FIR No.04,
dated 07.01.2022, registered at Police Station Central Sector 17,
District Chandigarh, at the instance of SI Vivek Kumar regarding the
alleged violation of an order dated 15.11.2021 under Section 144
Cr.P.C. passed by the concerned District Magistrate, resulting into
commission of an offence under Section 188 IPC.
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3. Investigation in the aforementioned FIR was concluded
and challan was filed against the petitioners on 29.03.2023. On the
same date, the petitioners, without being represented by the
Advocate, pleaded themselves guilty and were thus convicted and
sentenced to pay a fine of Rs.1000/- each and in case of default of
payment of fine, to undergo simple imprisonment for 10 days.
4. By way of present petition, the aforementioned FIR
besides the order dated 29.03.2023 passed by the Chief Judicial
Magistrate, Chandigarh has been assailed by learned counsel for the
petitioners on the following grounds:-
(i) In the present case, the FIR in question was registered on
07.01.2022, whereas, the challan was filed against the petitioners on
29.03.2023 for commission of an alleged offence under Section 188
IPC. Since, maximum punishment that can be awarded under Section
188 IPC being 6 months, therefore, in terms of Section 468 Cr.P.C.,
the Court concerned could not have taken cognizance on the final
report submitted beyond one year;
(ii) In terms of specific bar under Section 195 Cr.P.C. read
with Section 2 thereof, cognizance under Section 188 IPC could not
have been taken by the Trial Court on the basis of challan as only a
complaint was maintainable in this regard. In support of this
submission, ld. counsel placed reliance upon the following
judgments:-
a) "Muniappan v. State of Tamil Nadu", reported as 2010(4)
R.C.R. (Criminal) 268
b) "Jiwan Kumar v. State of Punjab", reported as 2009(1)
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R.C.R. (Criminal) 415
c) "State of Punjab v. Davinder Singh Pal Bhullar", reported as
2012(1) RCR (Criminal) 126
(iii) Ld. Counsel also pointed out that the proceedings were
carried out against the petitioners by the Trial Court on 29.03.2023
without affording opportunity to engage any lawyer which apparently
was violative of Article 21 of the Constitution of India. In support, he
placed reliance upon the following judgments:
a) "Md. Sukur Ali v. State of Assam", reported as 2011(2)
R.C.R. (Criminal) 121
b) "Subedar v. State of Uttar Pradesh", reported as 2020 (17)
SCC 765.
He further contended that since the petitioners pleaded
guilty in absence of any representation by a lawyer, such conviction
on plea of guilt was liable to be set aside and for the same, he placed
reliance upon the following judgments:
a) "Khudeswar Dutta v. State of Assam", reported as 1998(2)
R.C.R. (Criminal) 328
b) "Pascal Mendonza v. State of M.P.", reported as ILR 1990
MP 358
c) "Mousham v. State", bearing case no CRR No 466 & 467 of
2012 (Delhi High Court).
5. On the other hand, learned counsel representing
respondent-State vehemently opposed the prayer made at the
instance of the petitioners while submitting that in the present case
though a complaint under Section 195 Cr.P.C. was filed on behalf of
the District Magistrate on 07.02.2023 which was even appended
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along with the challan, however, the learned Court below instead of
taking cognizance on the complaint, proceeded further and took
cognizance on the basis of challan filed by the investigating agency
and as such it was merely an irregularity on the part of the trial court
for which the petitioners were not to be benefitted.
5.1 Learned counsel for respondent-State while referring to
judgment passed by the Hon'ble Supreme Court in case of "Kisan
Trimbak Kothula and others vs. State of Maharashtra" 1977 (1)
SCC 300, submitted that once the petitioners admitted themselves
guilty, they were not to be permitted to go back and reagitate the
issue on merits.
6. I have heard learned counsel for the parties and gone
through the paper-book/relevant record and I find substance in
submissions made by the ld. Counsel for the petitioners.
7. Let us first examine the contention by learned State
Counsel that in view of Kisan Trimbak Kothula's case (supra), once
the petitioners themselves pleaded guilty, now they cannot turn back
and agitate against the conviction. Relevant paragraph from this
judgment is reproduced hereunder:
"5. Wide-ranging defences were valiantly urged by the
appellants before us but without merit. For, once a person
pleads guilty and the Court accepts it, there is no room for
romantic defences and irrelevant litanies based on the
business being the mainstary of a large family, both brothers,
the only bread-winners, being jailed, bazaar coming milk
brought by the servant unwittingly turning out to be buffaloes'
milk and what not. How can a factual contention of
innocence survive a suicidal plea of guilty or tell-tale
contrition wash away the provision for minimum
sentence? Therefore, what is permissible is the sole legal
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submission that the offence falls under the proviso (i) to
Section 16(1) which, if good, relieves this Court from
imposing the compulsory minimum sentence of six
months' imprisonment if sound grounds therefore exist.
The desperate appellants, undaunted by one of them having
been stained by a prior conviction for a food offence, half-
heartedly flirted with the misericordious submission that the
Probation of Offenders Act be applied to these economic
offenders. The futile plea has to be frowned off, being more a
gamble in fool-hardy courage than one showing fidelity to
precedents or fairness to forensic properties. We state it to
reject it so that like delinquents may not repeat it later in
similar circumstances. True, petty milk vendors and poor
victuallers, young apprentices in adulteration offences, trivial
criminals technically guilty and others or their ilk, especially
when rehabilitation is feasible or repetition is impossible and
the social circumstances promise favourable correctional
results, may call the compassionate attention of the Court to
the provisions of the probation law unless Parliament pre-
empts its application by express exclusion (The law in this
regard has since been tightened up). Equally true, that a few
guileless soul in the dock, scared by the sometimes
exaggerated legal finality given to public analysts' certificates
and the inevitable incarceration awaiting them, may enter into
that dubious love affair with the prosecution called 'plea
bargaining' and get convicted out of their own mouth, with a
light sentence to being with, running the risk of severe
enhancement if the High Court's revisional vigilance falls on
this 'trading out' adventure. This Court has animadverted on
this vice of 'plea bargaining' in Murlidhar, case. May be,
something like that happened here, as was urged before us by
Shri Gobind Das for the appellants, relying, as he did, on the
circumstances that the accused had cross examined the
prosecution witness as if he were innocent, added a rider to
his plea of guilt and sown the seeds of a valid defense even
as he was asking for mercy in punishment. We do not explore
the deeper import of the quasi-compounding element or
something akin to it, except to condemn such shady deals
which cast suspicion on the integrity of food inspectors and
the administration of justice."
Note: emphasis supplied
A perusal of the same makes it sufficiently apparent that
though factual contentions cannot be agitated by the accused person
but at the same time, there is no restriction on challenge being made
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on legal premises. As arguments have been restricted in the case in
hand only on legal premises and no factual basis has been touched
upon, this judgment would not be applicable in the facts and
circumstances of the present case.
8. In that eventuality, contention by learned Counsel
appearing for the petitioners regarding non compliance of section 195
CrPC gains significance. In case of an offence registered under
Section 188 IPC, procedure as mandated under Section 195 CrPC is
required to be followed. As per Section 195 CrPC, no Court can take
cognizance of an offence registered under Section 188 IPC except on
the complaint in writing of the public servant concerned or of some
other public servant to whom he is administratively subordinate. It is a
settled proposition that neither police can register FIR in such cases
nor magistrate can take cognizance on the basis of a chargesheet/
challan.
9. Similar was also the observation of a Division Bench of
this Court in Jiwan Kumar's case (supra). Relevant para from this
judgment is reproduced here under:
"8. Coming to the attack of the petitioner in regard to the registration
of the F.I.R., it may be noticed that proceedings under Section 188
Indian Penal Code can only be initiated on the basis of a complaint
in writing of the public servant concerned made to the Court or to
some other public servant to whom he is administratively
subordinate. Section 195(1) of the Code restrains the Court from
taking cognizance of any offence punishable under Section 188
Indian Penal Code unless a complaint in writing is made to it by the
public servant concerned. In other words, no FIR can be registered
by the police. It would not be open to the police to register a case
against the offender for offence under Section 188 Indian Penal
Code and then to submit a report under Section 173 of the Code to
the concerned Court. Reliance in this regard can be placed on
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Jagtar Singh v. Union Territory, Chandigarh, 1996 (1) RCR 669,
wherein this Court held as under :
"These facts are not disputed. Language of Section 195(1) of
the Code does not leave scope for any ambiguity and is the
section which has to be construed strictly. In accordance with
the settled principles of interpretation applicable to criminal
jurisprudence the provisions of Criminal Procedure Code or
Penal Laws have to be strictly construed so as to be given
meaning except what is intended by the Legislature in the
language used itself. The relevant portion of Section is that,
"No Court shall take cognizance except on the complaint in
writing of the public servant concerned or of some other public
servant to whom he is administratively subordinate." The
intention appears to be clear that where an offence is
committed under Section 188 Indian Penal Code, the
Legislature has made it obligatory that the public servant
before whom such an offence is committed, he will file a
complaint to the Magistrate and the cognizance of the offence
by the concerned Court is dependent upon the complaint in
writing by such officer or an officer superior to such officer.
The counsel for the petitioner has relied upon Sawaran Singh
v. The State of Punjab, 1994(3) Recent CR 352 and Bhagat
Ram v. The State of Punjab, 1991(1) Recent CR 192. In both
these cases the Court has indicated that the scope of Section
195(1) of the Code does not contemplate investigation in a
normal way by the police and filing of the challan, but the
complaint has to be presented directly to the concerned Court.
In the present case though the complaint is stated to be
addressed to the Court, but as it appears it was not presented
to the Court and the Court did not pass any orders at that
stage."
10. At the same time from the ratio of Davinder Singh Pal
Bhullar's case (supra), a logical conclusion can also be arrived that
in such scenario, if criminal proceedings are initiated on the basis of
a challan then such proceedings would be vitiated and bound to be
quashed.
11. From the records, it is manifest that proceedings were
carried out in violation of section 195 CRPC in the present case.
Initially an FIR No 004 dated 07.01.2022 was registered against few
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persons including the petitioners on account of non compliance of
order dated 15.11.2021 passed by the DC on the basis of an
inspection carried out by police officials. As per the legal mandate of
Section 195 CrPC, magistrate could take cognizance only on the
basis of a complaint from the concerned official and FIR in this case
was not maintainable. Though, it has been contended by the learned
State counsel that a complaint dated 07.02.2023 was also filed in the
competent court, but perusal of impugned order dated 29.03.2023
clearly shows that learned magistrate took cognizance only on the
basis of charge sheet and on the basis of any such complaint dated
07.02.2023.
12. Further, a careful perusal of the record clearly establishes
that complaint dated 07.02.2023 was merely an afterthought by the
investigating agency and was made part of the proceedings at the fag
end only to bypass the technicalities, probably when it came to the
knowledge that cognizance in the absence of complaint in such
cases, cannot be taken by the court. This observation is necessitated
from the facts that while the FIR is dated 07.01.2022, complaint is
dated 07.02.2023, i.e. after more than a year.
13. Furthermore, since in the present case maximum
punishment imposable is six months and section 468 of the CrPC
bars the concerned Court from taking cognizance after the lapse of
the period of limitation which as per 468(2)(b) is one year, even the
complaint in the present case was beyond the period of limitation.
Though no doubt extension of period of limitation in certain cases can
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be allowed, the absence of any such application augmented with the
fact that even the complaint was beyond the period of limitation,
makes the case of the respondent state completely deleterious.
14. Additionally, perusal of FIR clearly shows that it was
registered on the basis of the ruqa sent after inspection carried out by
police officials and accordingly, in pursuance of the same,
chargesheet was filed. Even the impugned order shows that it was
passed in case bearing case number PCH 508/2023 wherein PCH
means case on the basis of police challan. In the above discussed
factual matrix, there remains no doubt that the proceedings in the
present case were on the basis of an FIR and beyond the period of
limitation, which is not permissible and thereby the FIR as well as the
order of conviction dated 29.03.203 both are liable to be quashed.
15. There is another dimension as well to the present case.
As rightly argued by the learned counsel for the petitioners, they were
not represented by any advocate when the order of conviction was
passed against when they pleaded guilty. Being convicted of an
offense can have far-reaching consequences beyond mere penal
outcomes, often unforeseen by the average individual. In this
particular instance, it seems the petitioners opted to plead guilty,
perhaps hastily, as they were only faced with a fine of Rs. 1000,
without fully comprehending the potential ramifications of their
actions. If they had been guided by legal counsel, they might have
been better informed about the dormant and latent outcomes and
repercussions of such a conviction.
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16. Under similar circumstances, Delhi High Court in
Mousham's case (supra), which has also been relied upon by the
learned Counsel for the petitioners, observed that conviction of any
accused without representation by a lawyer amounts to violation of
his fundamental right under Article 21 and his trial has to be held to
be vitiated on account of a fatal constitutional infirmity. Relevant para
from this judgment is reproduced here under:
"7. It is clear from both these identical orders of the learned
Special Magistrate that both the petitioners have been
convicted without even providing them any legal aid which
they were entitled to get at State expense. They were not
even given any opportunity to avail of the benefit of bail given
to them and straightaway their detention in a certified
institution for a period of one year was also ordered. In the two
judgments of the Hon'ble Supreme Court referred to already,
one of which was cited by the learned counsel for the
petitioners and the other one was cited, very fairly, by the
learned Additional Public Prosecutor it was held that right of
an accused in a criminal case, where upon conviction he can
be ordered to be imprisoned, to be represented by a lawyer at
State cost when the accused cannot afford that facility is a
fundamental right guaranteed under Article 21 of the
Constitution of India and further that it is the Court's duty to
inform the unrepresented accused that he could get legal aid
at State cost even if the accused does not request for legal aid
and the conviction of any accused without representation by a
lawyer amounts to violation of his fundamental right under
Article 21 and his trial has to be held to be vitiated on account
of a fatal constitutional infirmity. This serious infirmity in the
trial of the petitioners has been ignored even by the appellate
court also."
17. The order dated 29.03.2013 clearly indicates that in the
present case, the chargesheet was filed on the same day, followed
promptly by the framing of charges. While it is noted in the order that
the petitioners were briefed about the charges against them, the
absence of legal representation proved detrimental. This absence
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denied the petitioners the crucial opportunity to consult with an
advocate, thus depriving them of the ability to make informed
decisions and act accordingly. In cases where an accused pleads
guilty but is not represented by an advocate, there is a risk that their
plea may not be fully informed or voluntary which would violate the
principles of fair trial as enshrined in Article 21. The presence of legal
representation ensures that the accused understands the charges
against them, the consequences of pleading guilty, and can make
informed decisions regarding their defense. Therefore, on this
account as well, these proceedings are liable to be quashed.
18. Resultantly, in view of the discussion held above, petition
is allowed and accordingly FIR No.04, dated 07.01.2022, registered
at Police Station Central Sector 17, District Chandgarh as well as
order dated 29.03.2023 passed by the Court of Chief Judicial
Magistrate, Chandigarh are hereby quashed.
19. Pending application(s), if any, shall also stand disposed
of.
April 03, 2024 (HARKESH MANUJA)
sonika JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/ No
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