[Cites 13, Cited by 0]
Punjab-Haryana High Court
Balwinder Singh Bhunder vs Union Territory Chandigarh on 29 November, 2025
CRM-M-24842
24842-2023 with connected matters -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
290/3 Reserved on: 04.11.2025
Pronounced on: 29.11.2025
Uploaded on: 29.11.2025
1. CRM-M
M-24842-2023
BALWINDER SINGH BHUNDER ...Petitioner(s)
Versus
UNION TERRITORY,
TERRITORY CHANDIGARH ...Respondent(s)
2. CRM-M
M-8807-2023
SUKHRAJ SINGH SANDHU ...Petitioner(s)
Versus
STATE OF CHANDIGARH (U.T.) AND OTHERS ...Respondent(s)
3. CRM-M
M-18286-2023
JAGDEEP SINGH
...Petitioner(s)
Versus
UNION TERRITORY, CHANDIGARH ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA
Present:- Mr. J. S. Brar, Advocate
for the petitioner(s).
(in CRM-M-24842-2023 and CRM
CRM-M-18286-2023)
Dr. Khushbir S. Bhullar, Advocate and
Mr. Prabhjot S. Waraich, Advocate
for the petitioner.
(in CRM-M-8807-2023)
Mr. Manish Bansal, Public Prosecutor, U.T., Chandigarh.
Mr.Viren Sibal, Additional Public Prosecutor, U.T., Chandigarh.
Mr.Rajiv Vij, Additional Public Prosecutor, U.T., Chandigarh.
TRIBHUVAN DAHIYA, J.
The aforementioned petitions arise out of one FIR involving
common allegations against the petitioners; accordingly, the same are being
decided together.
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2. For brevity, the facts have been noticed from CRM-M-24842--
2023, which has been filed under Section 482 of the Code of Criminal
Procedure, 1973 (for short, Cr.P.C.), seeking quashing of FIR no.0137 dated
07.08.2020, under Section 188 of the Indian Penal Code, 1860, (for short,
IPC), registered at Police Station East Sector 26, Chandigarh, along with all
consequential proceedings arising therefrom.
3. The FIR in question has been lodged against the petitioners along
with co-accused
accused; its translated version, as reproduced in the petition, reads
thus:
To, the Station House Officer, Police Station Sector-26, Jai
Hind and it is hereby requested before you that I ASI alongwith
Senior Constable Arvind 107/CP, C Kavi Pal 2153/CP and LC
Rocky 625/CP alongwith SHO Police Station Sector-26 were
present near Golf Turn under the supervision of DSP Ram Gopal
Sahib with regard to law-and-order
order duty. SHO Sahib came to
know that some workers and leaders of Akali Dal are gathered at
Akali Bhawan, Sector-28, and they are marching towards Hon'ble
Governor's House, Punjab, Sector
Sector-6, Chandigarh to protest.
Thereafter, we alongwith SHO Sahib reached Akali Bhawan,
Sector
Sector-28, and where Sh. Balwinder Singh Bhunder, Member
Rajya Sabha (SAD), Punjab was present there, and SHO Sahib
told him that in Chandigarh City Section 144 Cr.P.C. is enforced
as per the orders passed by D.M./Chandigarh and you are not
allowed to gathered 5 or more than 5 persons. If you want to
protest then you can do the same at Rally Ground, Sector-25,
25,
Chandigarh after taking the permission but as per Sh. Balwinder
Singh Bhunder some members have already moved towards the
decid place Golf Turn, Chandigarh. At about 12:00 in the
decided
noon, Sh. Balwinder Singh Bhunder alongwith 30-35 members of
the party reached at Golf Turn, Chandigarh and where Sh.
Bikramjit Singh Majithia, MLA Punjab (SAD) also reached.
Then 30-35 members were lea
leaded by Sh. Balwinder Singh
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Bhunder and Sh. Bikramjit Singh Majithia and they started
raising slogans "Punjab Sarkar Murdabad" and "murder cases be
registered against Liquor Mafia". SHO Sahib and DSP Sahib
tried to make them understand but they all 37 by protesting at
Golf Turn, Chandigarh had violated the order No.
DM/MA/2020/13923 dated 09.07.2020 of D.M./UT Chandigarh.
The same falls within the section 188 of IPC. Hence, all the 37
protestors round up and sent to Police Station Sector-3,
3,
Chandigarh. The ruqa for the registration of the case under
abovesaid section against Sh. Balwinder Singh Bhunder, Sh.
Bikramjit Singh Majithia alongwith 35 other protestors is being
sent to Police Station through Constable Arvind Kumar 107/CP.
Case Number be informed after the registration of case. By name
list of the protestors is being prepared. I ASI alongwith other
police officials is busy at the spot.
3.1. After completion of the investigation
investigation, challan/chargesheet was
presented in the Court against the petitioners under Sections 188 of IPC, and a
complaint under Section 195 Cr.P.C. was also filed along with it.
4. In this factual background, learned counsel for the petitioner
contended that the protest march had been organised against the Government,
and they had the fundamental right to protest under Article 19(1)(a) of the
Constitution. To register an FIR for commission of offence under Section 188
IPC, the mandatory procedure under Section 195 Cr.P.C. must be followed,,
and in the absence of a complaint by the public servant, no action can be taken
against the accused. In support of the conten
contention, learned counsel has relied
upon the Supreme Court judgments in Basir-
Basir-Ul-Huq and others v. State of
West Bengal, AIR 1953 SC 293 and State of Karnatka v. Hemareddy, (1981))
2 SCC 185.
5. Learned Public Prosecutors, on the contrary, contended that the
petitioners along with other protesters constituted an unlawful assembly and
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prevented the police officials from performing their duties. Accordingly, the
offence under Section 188 is clearly made out against them. Further, the
provisions of Section 195 Cr.P.C. are not attracted at the stage of
investigation, and its compliance is required only at the time of taking
cognizance by the Court. This has been settled by the Supreme Court in State
of Punjab v. Raj Singh and another, (1998) 2 SCC 391, M. Narayandas v.
State of Karnataka and others,(2003) 11 SCC 251, and Devendra Kumar v.
The State (NCT of Delhi) and another, 2025 1NSC 1009. Accordingly, the
grounds of challenge put forth by the petitioners are not sustainable.
6. Submissions made by learned counsel for the parties have been
considered.
7. One of the questions raised before the Court relate to compliance
of mandatory procedure laid down under Section 195 Cr.P.C., which has
given rise to the following issue:
T stage when compliance of the procedure under Section 195
The
Cr.P.C. is mandated.
7.1. Recent
Recently, the Supreme Court in Devendra Kumar case,
considered entire law on the issues aforementioned
aforementioned, including the cases relied
upon by learned counsel for the parties - Basir
Basir-Ul-Huq, Hemareddy, Raj
Singh and M. Narayandas.
Narayandas It laid down that the bar created under Section 195
Cr.P.C. is on taking cognizance of the offence
offences mentioned in Chapter XIV of
the Code in the absence of complaint in writing by a public servant, and not
on registration or investigation of a case by the police. Therefore, the stage of
complying with the procedure mandated in the section is when cognizance of
the offence is to be taken by the Court, and not at the time of lodging the FIR..
In this regard the
t following paragraphs of the judgment are relevant:
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48. Thus, in view of the above, the law can be summarized to
the effect that there must be a complaint by the public servant
who was voluntarily obstructed in the discharge of his public
functions. The complaint must be in writing. The provisions of
Section 195 Cr.P.C. are mandatory. Non-compliance of it would
vitiate the prosecution and all oother consequential orders. The
Court cannot assume the cognizance of the case without such
complaint. In the absence of such a complaint, the trial and
conviction will be void ab initio being without jurisdiction.
49. xxx xxx xxx
50. The heading of Chapter XIV of the Code of Criminal
Procedure is "Conditions Requisite for Initiation of Proceedings".
The first provision in this Chapter is Section 190 and it deals with
the power of the Magistrate to take cognizance of the offences.
There are some other provisions in this Chapter which create an
embargo on the power of the Court to take cognizance of
offences committed by persons enumerated therein except on the
complaint in writing of certain specified persons or with the
previous sanction of certain specified
ified authorities.
51. A plain reading of Section 195 of the Cr.P.C. would
indicate that no Court can take cognizance of an offence
punishable under Section 186 of the I.P.C, except upon a
complaint in writing of the public servant concerned or of some
ot
other public servant to whom he is administratively subordinate.
The opening words of the Section are "No Court shall take
cognizance", and consequently, the bar created by the provisions
is against taking of cognizance by the Court. There is no bar
against the registration of a criminal case or investigation by the
police agency or submission of a report by the police on
completion of the investigation, as contemplated by Section 173
of the Cr.P.C.
8. In
n terms of the settled proposition of law, as aforementioned, the
procedural compliance is to be seen at the time of taking cognizance of
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offences by the Magistrate, and that stage has not reached as yet. Therefore,
the perceived non-compliance
non with the provisions of this section is no ground
to seek quashing of the FIR in question at this stage.
9. In view of the discussion, these petition
petitions are disposed of giving
liberty to the petitioners to raise the issue regarding bar of Section 195 Cr.P.C.
before the trial Court at appropriate stage, if so advised.
10. A photocopy of this order be placed on the connected files.
(TRIBHUVAN DAHIYA)
JUDGE
29.11.2025
Ad
Whether speaking/reasoned Yes
Whether reportable Yes
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