Punjab-Haryana High Court
Parveen Kumar vs State Of Haryana on 29 April, 2024
Neutral Citation No:=2024:PHHC:058152
Neutral Citation No. 2024:PHHC:058152
CRM-M-31662-2017 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on : April 15, 2024
Date of Decision : April 29, 2024
CRM-M-31662-2017 (O&M)
Parveen Kumar ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued By : - Mr. Inderjeet Singh, Advocate for the petitioner.
Mr. Sumit Jain, Addl. A.G., Haryana.
DEEPAK GUPTA, J.
By way of this petition filed under Section 482 Cr.P.C.,
petitioner prays to quash challan dated 12.06.2017 (Annexure P-3) and
charge-sheet 08.09.2017 (Annexure P-4), under Sections 199, 201, 203,
211, 182 of IPC and Section 27 (wrongly mentioned as Section 25) of the
Arms Act, 1959 alongwith subsequent proceedings against the petitioner
in case FIR No.58 dated 24.03.2017, registered at Police Station Radaur,
Yamuna Nagar.
2. On perusal of the paper book, it emerges that on the
complaint of one Dolly D/o Manjit Singh, FIR No.23 dated 23.03.2017
(copy Annexure P-2) under Sections 354-A(1), 354-B, 354-D and 506 of
IPC was registered at Police Station Women Police Station, Yamuna
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Nagar against petitioner - Parveen Kumar regarding the alleged incident
of 18.03.2017. On the other hand, FIR No.58 dated 24.03.2017
(Annexure P-1), pertaining to the present case, was registered on the
statement of petitioner Parveen Kumar, under Sections 307, 341/34 of
IPC and Section 25 of the Arms Act, at Police Station Radaur, District
Yamuna Nagar, in which it was alleged by him that on 21.03.2017, two
unidentified persons came on a bike and caused injuries by firing from a
pistol on his right arm and fled.
3. During the investigation of FIR No.23 of 2017, petitioner
was arrested on 02.05.2017 and on interrogation, he suffered disclosure
statement, as per which as the parents of Dolly had gone to the police
station and made a complaint against him and got registered a case
against him, therefore, in order to save himself and to put pressure on the
girl's side of the family, he had himself fired a gun shot on his own arm
and that bullet had remained in his arm and he had thrown the country-
made pistol in the pond.
4. In view of the aforesaid disclosure statement suffered by the
petitioner during investigation of case FIR No.23 dated 23.03.2017,
Sections 199, 201, 203, 182, 211 IPC and Section 27 of the Arms Act
were added in case FIR No.58 dated 24.03.2017, and the offences under
Sections 307, 341/34 of IPC and Section 25 of the Arms Act were
deleted. Final report under Section 173 Cr.P.C. (challan) (Annexure P-3)
was field against the petitioner, so as to prosecute him under Sections
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182, 195, 203, 211 IPC and Section 25 of the Arms Act in case FIR No.58
of 24.03.2017, which was ironically registered on the complaint of
petitioner himself. The Court of learned Addl. Sessions Judge, Yamuna
Nagar, charge-sheeted the petitioner ( Annexure P4) on 08.09.2017 under
Sections 199, 201, 203, 211 and 182 of IPC, besides Section 27 of the
Arms Act, to which he pleaded not guilty and claimed trial.
5.1 Challenging the aforesaid proceedings, i.e. challan filed
against him and the charges frame against him in case FIR No.58 of
2017, it is contended by learned counsel that the police has adopted a
novel way, totally contrary to the law, by charge sheeting the petitioner in
the case, which was lodged on his own complaint, instead of filing any
cancellation report, in case the allegations made therein were found to be
false, so as to afford opportunity to the petitioner to file a protest petition.
Learned counsel refers to "Minu Kumari and Anr v. State of Bihar and
ors." 2006(3) R.C.R. (Criminal) 271.
5.2 Still further, it is contended that the cognizance for the
offences under Sections 182, 199, 201 and 211 of IPC is barred except as
per the procedure laid down in Section 195 Cr.P.C.
5.3 Besides, petitioner had already filed a private complaint
(copy Annexure P-5) on 23.10.2017 with regard to the incident of firing
upon him, as alleged in FIR No.58 of 24.03.2017, in which preliminary
evidence has already been recorded and in view of the pendency of that
private complaint, proceedings under Section 182 IPC cannot be lodged.
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Reliance has been placed upon "Tarlochan Singh v. State of Punjab",
2007(3) RCR (Criminal) 791 and "Shobha Rani v. State of
Haryana"(CRM-24770-M of 2008, decided on 09.04.2010).
5.4 Learned counsel has also placed on record copy of the
judgment dated 08.05.2023 passed by Learned Judicial Magistrate 1st
Class, Yamuna Nagar at Jagadhari, so as to contend that petitioner has
already been acquitted in case FIR No.23 of 23.03.2017, which was
registered against him on the complaint of Dolly. Still further, it is argued
that simply on the basis of the disclosure statement allegedly suffered by
petitioner during the investigation of FIR No.23 of 2017, the allegations
made by him in FIR No.58 of 2017, could not be held to be false.
6. Learned State counsel, on the other hand, has opposed the
petition by submitting that FIR No.58 of 2017 was lodged by the
petitioner in order to save himself from his possible prosecution in case
FIR No.23 of 2017 by self-inflicting the injuries and therefore, he has
been rightly challaned and charge-sheeted in this case.
7.. I have considered submissions of both the sides and have
apprised the record.
8. Let the case of the prosecution be taken to be true at its face
value, the question is whether the petitioner can be prosecuted in the
manner, in which he is sought to be prosecuted. While lodging the FIR, it
was alleged by the petitioner that two unknown persons had caused fire
arm injury to him. Prosecution alleges that petitioner had self-inflicted the
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said injuries upon him, in order to save himself from the possible
prosecution in case FIR No.23 of 2017. In case, the case of the
prosecution is taken to be true, the proper course for Investigating
Agency was to prepare cancellation report in FIR No.58 of 2017,
registered on the statement of petitioner himself and to file the same in
the concerned court of Jurisdictional Magistrate, so that petitioner could
be afforded the opportunity to file the protest petition, if he so desired.
Instead of doing so, the Investigating Agency deleted Sections 307, 341
IPC and challaned the petitioner in the same FIR, so as to prosecute him
under Sections 182 and 211 IPC etc.
9. Section 173 (2) Cr.P.C, is relevant here, which reads as
under:
"173. Report of police officer on completion of investigation.--
(1) Every investigation under this Chapter shall be completed without
unnecessary delay.
(1A) xxxxxxx
(2) (i) As soon as it is completed, the officer in charge of the police station
shall forward to a Magistrate empowered to take cognizance of the offence on
a police report, a report in the form prescribed by the State Government,
stating--
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the
circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by
whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or
without sureties;
(g) whether he has been forwarded in custody under section 170.
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(h) whether the report of medical examination of the woman has been
attached where investigation relates to an offence under sections 376,
376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of
the Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as may be prescribed
by the State Government, the action taken by him, to the person, if any, by
whom the information relating to the commission of the offence was first
given.
10. Interpreting the scope of Section 173(2) CrPC in Minu
Kumari's case (supra), it has been held by Hon'ble Supreme Court:-
"When a report forwarded by the police to the Magistrate under Section
173(2)(i) is placed before him, several situations arise. The report may
conclude that an offence appears to have been committed by a particular
person or persons and in such a case, the Magistrate may either (1) accept the
report and take cognizance of the offence and issue process, or (2) may
disagree with the report and drop the proceeding, or (3) may direct further
investigation under Section 156(3) and require the police to make a further
report. The report may on the other hand state that according to the police, no
offence appears to have been committed. When such a report is placed before
the Magistrate he has again option of adopting one of the three courses open
i.e., (1) he may accept the report and drop the proceeding; or (2) he may
disagree with the report and take the view that there is sufficient ground for
further proceeding, take cognizance of the offence and issue process; or (3) he
may direct further investigation to be made by the police under Section 156(3).
Where the Magistrate decides not to take cognizance and to drop the
proceeding or takes a view that there is no sufficient ground for proceeding
against some of the persons mentioned in the First Information Report,
notice to the informant and grant of opportunity of being heard in the
matter becomes mandatory."
[Bold & Italicized portion emphasised by this court]
11. In view of the aforesaid legal position, it was not at all
proper for the Investigating Agency, so as to file the challan against the
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petitioner to prosecute him in the FIR, which was lodged on his own
complaint, instead of filing the cancellation report, in case the allegations
contained in the FIR were found to be false. It is to be noted that by not
filing the cancellation report, petitioner was not afforded any opportunity
to file protest petition. In these circumstances, petitioner had to file
private complaint before learned Area Magistrate (copy Annexure P-5), in
which preliminary evidence has already been recorded.
12. Further, relevant part of Section 195 Cr.P.C. 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
(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 following 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
(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 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."
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13. It is clear on bare perusal of the aforesaid provisions that no
Court can take cognizance of the offence under Section 182 IPC, except
on the complaint, in writing, of the public servant concerned or of some
public servant, to whom he is administratively subordinate,
In the present case, no such procedure was followed by the
police
14. Similarly, no Court can take cognizance of offence under
Sections 199 and 211 IPC, except on the complaint in writing of that
Court or by such officer of the Court or the authorized person by the
Court, or by some other Court to which that Court is subordinate, where
such offence is alleged to have been committed.
15. Not only this, petitioner has already been acquitted in case
FIR No.23 of 23.03.2017, which was registered against him on the
complaint of Dolly vide judgment dated 08.05.2023 passed by Learned
Judicial Magistrate 1st Class, Yamuna Nagar at Jagadhari, in which
petitioner had allegedly suffered disclosure statement, due to which
allegation made by him in FIR N: 58 of 2017 were found by the
investigating agency to be false.
16. Moreover, the private complaint (Annexure P-5) has already
been filed by the petitioner regarding the incident as alleged in FIR No.58
of 2017, which was still pending for trial and therefore, petitioner could
not have been prosecuted under Sections 182 IPC.
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17. In Shobha Rani's case (Supra), the issue before this Court
was as to whether a Calendra can be presented under Section 182 IPC
against the complainant, when the criminal complaint is pending and a
Court of law which is seized of the matter is yet to express its final
opinion on the matter. This Court observed as under:-
"4. This issue has arisen before this court on various occasions. One such
case where this issue was examined is Banta Singh v. State of Haryana
1995(3) RCR (Criminal) 133. In that case also, the allegations levelled by
the complainant were found to be false by the investigating agency which
had presented calendra under Section 182 of I.P.C. Subsequently, the
complainant instituted a private complaint and sought quashing of the
calendra on the ground that the same cannot be proceeded with during the
pendency of the complaint. This court in Banta Singh's case (supra),
following the ratio of law laid down in State of Punjab v. Brij Lal Palta
AIR 1969 Supreme Court 355, held as under:-
"In State of Punjab v. Brij Lal Palta, AIR 1969 Supreme Court 355,
a matter very much similar to the one in hand, was considered and it
was held that once a complaint filed by the informant which is based
on the same facts and allegations on which the first information was
registered, is being proceeded with, it is not open to a Magistrate to
take cognizance of any offence alleged to have been committed under
section 211 Indian Penal Code. It was further held that although section
182 Indian Penal Code, is distinct from the offence under Section 211,
the latter is a more serious offence and may include the offence under
the former section. It is apparent that if the case under section 182
Indian Penal Code, is allowed to proceed, a decision in the said case
would tantamount to pre-judging the complaint filed by the petitioner.
The prosecution of the petitioner under section 182 Indian Penal Code,
during the pendency of his complaint, is evidently an abuse of the
process of the Court, and it would be but proper to secure the ends of
justice, to quash these proceedings. It is ordered accordingly."
(Emphasis
supplied)
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5. This issue was again considered by this court in the case of Ramesh
Chand v. State of Haryana 2006(4) RCR (Criminal) 718. In that case
also the quashing of Kalendra under Section 182 of I.P.C. was sought on
the ground that during the pendency of the complaint, these proceedings
could not have been instituted. This court allowing the petition observed as
under:-
"In view of the admitted facts that in the private complaint filed by the
petitioner, the accused have been summoned, though they were found
innocent by the police in the FIR and keeping in view the aforesaid
settled proposition of law, at this stage it cannot be said that the
allegations levelled by the petitioner in the FIR are false. Therefore, in
my opinion, the proceedings initiated by the police against the
petitioner under Section 182 1.P.C. are liable to be quashed."
(Emphasis supplied)
6. Even in the case of Tarlochan Singh v. State of Punjab 2007(3) RCR
(Criminal) 791 the proceedings under Section 182 of the Indian Penal
Code were quashed as the criminal complaint on the same cause of action
was pending. This court observed as under:
"5. There appears to be force and substance in the contention raised on
behalf of the petitioner. Though, the police had investigated the FIR
registered on the basis of a complaint submitted by the petitioner and
found those allegations to be false, yet the petitioner has thereafter filed
a fresh complaint Annexure P-3 and the said complaint is still pending
and fixed for recording of preliminary evidence."
7. After adverting to the various case law on the point it was held that
"It is, thus, clear that if the case under Section 182 1.P.C. is allowed to
proceed, a decision in the said case would tantamount to pre-judging
the complaint filed by the petitioner. The prosecution of the petitioner
under Section 182 I.P.C. during the pendency of his complaint on the
same facts and allegations as mentioned in the FIR, would be an abuse
of the process of the Court."
(Emphasis supplied)
8. The aforesaid proposition of law was followed more recently in the case of
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Babita v. State of Punjab 2008(4) RCR (Criminal) 516 wherein it was held
that:
"7. Keeping in view the facts of the present case, where the final
opinion by the Court is yet to be expressed as regard the falsity of the
complaint made by the petitioner, permitting the respondents to
proceed with the proceedings under Section 182 I.P.C. would amount
to pre-judging the complaint filed by the petitioner. The same is pre-
mature and would amount to abuse of process of law. It would be
proper, to secure the ends of justice, to quash the proceedings against
the petitioner."
(Emphasis supplied)
9. From the perusal of the aforesaid judgments, the principle of which
emerges is that the proceedings under Section 182 of 1.P.C. cannot be
permitted to continue when a private complaint on the same cause of action
is pending before a court of law. When the truthfulness and veracity of the
allegations have not been determined by a court, prosecuting the complaint
under Section 182 will tantamount to prejudging the whole issue which
would clearly be an abuse of process of law. Since this view has been
consistently followed by this court and the counsel for the respondent has
not been able to cite any case law to the contrary, I see no reason for
deviating from the view taken by this court on various occasions."
18. Legal position as above is squarely applicable to the facts of
the present case. Therefore, considering the factual and legal position as
discussed above, it is held that prosecution of the petitioner in case FIR
No.58 of 24.03.2017 (Annexure P1), cannot be allowed.
19. As such, challan dated 12.06.2017 (Annexure P-3) and
charge-sheet 08.09.2017 (Annexure P-4), under Sections 199, 201, 203,
211, 182 of IPC and Section 27 of the Arms Act, 1959 alongwith
subsequent proceedings arising therefrom against the petitioner in case
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FIR No.58 dated 24.03.2017, registered at Police Station Radaur, Yamuna
Nagar, are hereby quashed.
April 29, 2024 (DEEPAK GUPTA)
Sarita JUDGE
Whether reasoned/speaking: Yes
Whether reportable: Yes
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