Full Text
HIGH COURT OF DELHI
SHABNAM HASHMI ..... Petitioner
Through: Mr.Soutik Banerjee & Ms.Devika Tulsiani, Advs.
Through: Mr.Aman Usman, APP
JUDGMENT
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, „CrPC‟) praying for quashing of the order dated 08.10.2021 passed by the learned Metropolitan Magistrate-04, Dwarka Court, New Delhi (hereinafter referred to as the „Metropolitan Magistrate‟) in Criminal Case No. 5612/2021 titled State v. Shabnam Hashmi, and all consequential proceedings emanating therefrom.
2. The above Criminal Case has been registered on the chargesheet filed against the petitioner in FIR No. 0222/2020 registered at Police Station, Dwarka South, Delhi under Section 188 of the Indian Penal Code, 1860 (in short, „IPC‟). The said FIR has been registered by the Duty Officer, Police Station Dwarka South, stating that on 03.06.2020, he was called by the SHO to his office and was told that on the social media site Twitter, a video was being played in which the petitioner and others are seen protesting. He was instructed that the same be checked and proceedings in accordance with the law be taken. The Duty Officer further states that he checked the said Tweets on Twitter and found that the same has been posted by a handle in the name of @Shabnam Hashmi on 03.06.2020 at 17:10hrs containing a video which, on local inquiry, was found to be made at DDA park near the Presidium School, Sector-06, Dwarka, New Delhi, and in which 8 to 10 people are found walking with one banner against the Citizen Amendment Act (in short, „CAA‟). At the end of all these persons was the petitioner herein, found holding the banner. The petitioner stays in Sector-6 Dwarka and calls herself a social activist. The above-mentioned Twitter handle also belongs to her. It was alleged that as all these persons had violated the Prohibitory Order NO. 5250-5339/R-ACP Dwarka dated 01.06.2020 issued under Section 144 of the CrPC by the Assistant Commissioner of Police (in short, „ACP‟) Dwarka, they have committed an offence under Section 188 of the IPC.
3. Upon investigation, a Final Report under Section 173 CrPC was filed before the Court of the learned Metropolitan Magistrate on 04.05.2021. On the said charge-sheet, the learned Metropolitan Magistrate took cognizance vide the Impugned Order dated 08.10.2021, which reads as under:- “I have gone through the charge-sheet and there are sufficient material on record to proceed against the accused, hence, I take cognizance of the offence committed against the accused. Let summons be issued to the accused to be served through IO for NDOH. List for 09.02.2022.” Submissions by the learned counsel for the petitioner
4. The learned counsel for the petitioner submits that in terms of Section 195 CrPC, cognizance for an offence under Section 188 of the CrPC can be taken only on a complaint in writing of the Public Servant concerned or of some other Public Servant to whom he is administratively subordinate. Cognizance cannot be taken of the Final Report.
5. He submits that in the present case, the Final Report contains a document dated 24.04.2021 purporting itself to be „permission under Section 195 CrPC‟ issued by the ACP, Sub-Division Dwarka, New Delhi. The same, however, cannot be considered as a complaint under Section 195 CrPC and, therefore, the Impugned Order taking cognizance on the Final Report is liable to be set aside. In support, he places reliance on the judgment of this Court in Vasudev v. State, 1984 SCC OnLine Del 233; and Santokh Singh Chawla v. State NCT of Delhi, 2023 SCC OnLine Del 4773. Submissions by the learned counsel for the respondent
6. On the other hand, the learned counsel for the respondent submits that the learned Metropolitan Magistrate can take cognizance not only of the Final Report, but also of the document attached thereto. In the present case, there is a document dated 24.04.2021 titled „permission under Section 195 CrPC‟ from the ACP filed along with the Final Report, which would satisfy the requirement of a complaint under Section 195 CrPC. He submits that cognizance has, therefore, rightly been taken by the learned Metropolitan Magistrate treating this to be the complaint, and no fault can be found in the order dated 08.10.2021 passed by the learned Metropolitan Magistrate. In support, he places reliance on the judgment of this Court in Decathlon Sports India Pvt. Ltd. v. State of NCT of Delhi, 2022 SCC OnLine Del 2357. Analysis & Finding
7. I have considered the submissions made by the learned counsels for the parties.
8. Sub-Section (1) of Section 195 CrPC reads as under:-
9. A reading of the above would show that a Court can take cognizance of any offence punishable under Section 188 of the IPC only on the complaint in writing of the Public Servant concerned or some other Public Servant to whom he is administratively subordinate.
10. In Vasudev (Supra), this Court, under similar circumstances as in the present case, held as under:-
11. Again, in Santokh Singh Chawla (Supra), another learned Single Judge of this Court, on a detailed analysis of Section 195 CrPC and the precedents governing the same, has held as under:-
12. The present petition presents similar facts as the above cases. In the present case also, the FIR was registered alleging violation of the Prohibitory Order No. 5250-5339/R-ACP Dwarka dated 01.06.2020 issued under Section 144 of the CrPC by the ACP Dwarka. However, on completion of investigation, instead of filing a complaint in terms of Section 195 CrPC, the Final Report was filed before the learned Metropolitan Magistrate, and the learned Metropolitan Magistrate vide order dated 08.10.2021, took cognizance of this Final Report. The same was clearly impermissible in terms of Section 195 CrPC and the law as had been explained by the above referred judgments.
13. The reliance of the prosecution on the “permission under Section 195 CrPC” dated 24.04.2021 issued by the ACP is also illfounded. The said permission letter reads as under:- “The Brief facts of the case is that on 03-06-2020 SHO/Dwarka-South directed SI- Rakesh Kumar that a twit is trending on Twitter Social Media Platform, in which Ms. Shabnam Hashmi along with other persons is being seen to protest, suitable legal action taken against her. After this IO/SI-Rakesh Kumar checked and verified the trending twit and found that this twit was twitted on 03-06- 2020 at 17:10 Hrs from the verified twitter handle of Ms. Shabnam Hashami, a social activist. Local enquiry regarding protest was made place of protest was done and found that the said video of protest was made on 03-06- 2020 in DDA Park, near presidium School, Sec-6, Dwarka, 8-10 persons were seen with carrying a banner and in the last Ms. Shabnam Hashami R/o-Sec-6, Dwarka was also seen with carrying a banner. Due to pandemic of Covid-19, all type of protest and gathering of 5 or more persons was banned by ACP/Dwarka vide its rder NO. 5250- 5339/R/ACP/Dwarka Dated New Delhi the 01-06-2020. Thus Ms.Shabnam Hashmi has violated the lawful order of ACP/Dwarka. According a Case FIR No.222/2020 U/s 188 IPC Dated 03-06-2020 was registered in PS- Dwarka- South. Now Therefore, I Sunil Kumar Singh, Assistant Commissioner of Police, Sub Division Dwarka, Dwarka District, hare by make this permission U/s-195 Cr.P.C. for prosecution of the above named Accused person in the aforesaid case. However due to pre occupation in official duties. I may here be exempted from personal appearance in the Court and Ld. APP attached to the Hon'ble Court may be permitted to pursue the case in lieu of undersigned.” (Emphasis supplied)
14. A reading of the above would clearly show that the above document is not a Complaint as defined by Section 2(d) CrPC. It was, in fact, in the nature of a permission given by the ACP for prosecution of the petitioner and for seeking exemption from his own personal appearance in the Court. Similar letters have been considered by this Court in the above-referred judgments of Vasudev (Supra) and Santokh Singh Chawla (Supra) and it has been held that the same does not satisfy the test of being a Complaint under Section 195 CrPC. I may only herein quote from the judgment in Santokh Singh Chawla. (Supra) as under:- “18. In reply to the aforesaid request seeking complaint under Section 195 Cr. P.C., the concerned public servant had informed that a complaint had already been lodged at P.S. Kapashera by their office regarding illegal construction activity in lockdown period on the basis of which the present FIR was registered. Thus, it was requested that this complaint be filed under Section 195 Cr. P.C. to prosecute the petitioner. This letter was addressed by Executive Magistrate/Tehsildar (Kapashera), conveying the approval of District Magistrate (South- West) to ASI Gajraj Singh, P.S. Kapasehra. This letter dated 10.09.2020 reads as under: “Sub: Regarding complaint u/s 195 of Cr. P.C. With reference to your letter dated 20/07/2020, it is stated that a complaint has been filed at Police Station Kapashera by this office regarding illegal construction activity during lock down period at Fun & Food Village Kapashera, New Delhi. On this complaint, a case vide FIR No. 113/2020 dated 24/03/2020. Therefore, the undersigned has been directed to convey the approval of the DM/DC (South-West) to file this complaint u/s 195 of Cr. P.C. to prosecute in the aforesaid case. The undersigned is unable to attend the Hon'ble Court on each and every date of hearing, thus the undersigned may kindly be exempted from personal appearance. The Ld. APP attached to the Hon'ble Court may kindly be permitted to plead the case on behalf of the undersigned…”
19. As far as the aforesaid communication dated 10.07.2020 from the office of Executive Magistrate is concerned, the same cannot be termed as a complaint under Section 195 Cr. P.C. for the reasons that firstly, the same is not addressed to the learned Magistrate or the Court, rather it has been addressed to ASI posted at P.S. Kapashera, and secondly, it merely says that a complaint had already been lodged by them with the police and thus, the same be filed under Section 195 Cr. P.C.
20. In these circumstances, this Court deems it apt to take note of the decision of this Court in case of Gurucharan Singh Arora v. The State, (2002) 96 DLT 181, relevant observations of which read as under: “5. …In order to appreciate the rival contentions, it would be appropriate to quote relevant portion of complaint. It reads:— “I Sh. G.L. Mehta, Inspector, SHO, P.S. Patel Nagar, Delhi in pursuance of Section’ 195 Cr. P.C. hereby give consent to prosecution (1) Gurcharan Singh Arora S/o Jagaj Nath Arora R/o G-29, Bali Nagar, Delhi, FIR NO. 557/93, under Section 186/332/353/506/34 IPC and 185 & 39/192 M.V. Act, P.S. Patel Nagar, Delhi & (2) Gaurav Arora S/o gurcharan Singh Arora r/o G-29, Gali Nagar, Delhi under Section 186/332/353/506/34 IPC vide case FIR No. 557/93, P.S. Patel Nagar, Delhi.”
6. Section 2(d) of Cr. P.C. defines the complaint to mean any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. It is true that no particular form is prescribed in which the complaint should be made and the substance of the complaint that is to be read. It is not necessary that it should categorise elements of the offence to be charged. It is enough that the facts alleged should constitute an offence for which the accused is charged. It does not matter even if the complainant quotes wrong Sections. The complaint is meant to put the machinery of law in motion. Whether allegations were made with a view to take action against the accused would depend upon the facts and circumstances of each case.
7. In this case, there was nothing in the complaint quoted above to indicate that the complaint was made to the Magistrate for taking action under Section 186 IPC. Mere consent of the SHO for prosecution of the accused cannot be construed as the complaint. Further, there is nothing on record to indicate that the cognizance was taken by the Magistrate on the basis of the complaint under Section 195 Cr. P.C.. Therefore, the charge under Section 186 IPC against the petitioner is not sustainable. It is needless to observe that in all such cases, the complaint should be filed by the concerned public servant with a prayer to take action against the accused and whenever such complaint under Section 195 Cr. P.C. is filed along with charge-sheet under Section 173 Cr. P.C., the Courts while taking cognizance, should also take note of such complaint, to avoid any technical objection at a later stage…”
21. Similarly, this Co-ordinate Bench of this Court in case of Mohan Kukreja v. State (Govt. of NCT of Delhi), 2019 SCC OnLine Del 6398, while setting aside the order of cognizance taken on chargesheet and in absence of a complaint under Section 195 Cr. P.C. filed by the concerned public servant before the Magistrate, had observed as under: “12. The complaint made by the respondent No. 2 on 19.02.2016 was a complaint made to the SHO and is not a complaint to the Magistrate so as to satisfy the requirements of Section 195(1)(a)(i) Cr. P.C. The final report filed by the SHO is not a report of a Police Officer of commission of a noncognizable offence so as to satisfy the requirements of Section 2(d) of Cr. P.C.
13. The alleged complaint does not satisfy the requirements of Section 195 Cr. P.C.
14. Non-compliance of Section 195 Cr. P.C. is a defect which cannot be cured subsequently as is sought to be done by the prosecution by filing a supplementary chargesheet or by way of a complaint given by the public servant after cognizance has been taken.
15. In similar circumstances, this Court in Saloni Arora v. State of NCT of Delhi, 2015 SCC OnLine Del 14460 had attempted to cure the defects of noncompliance of Section 195 Cr. P.C. However, the Supreme Court in Saloni Arora v. State (NCT of Delhi), (2017) 3 SCC 286 set aside the order of this Court and held that noncompliance of Section 195 Cr. P.C. renders the trial itself void ab initio.
16. As noticed above, subject complaint does not satisfy the requirements of Section 195 Cr. P.C. and, accordingly, the Trial Court could not have taken cognizance of the offence under Section 188 IPC either on the final report or on the supplementary chargesheet filed by the prosecution.
17. Since the subject proceedings suffer from infraction of Section 195 Cr. P.C., the impugned orders dated 09.12.2016 and 14.11.2017 cannot be sustained and, accordingly, the action taken by the prosecution against the petitioner for the offence under Section 188 IPC is rendered void ab initio being against the dictum of the Supreme Court in Daulat Ram v. State of Punjab, 1962 Supp (2) SCR 812…”
22. Therefore, the concerned public servant was obliged to file a complaint in writing before the concerned Court as per Section 195 Cr. P.C. but the same was not done in the present case.
23. To the contrary, the public servant in the present case had lodged with the police, an appropriate complaint for registration of present FIR, but after the investigation had been conducted by the police, the concerned public servants had not filed any complaint before the learned Magistrate containing allegations against the petitioner to enable the magistrate to take cognizance under Section 195 Cr. P.C.”
15. The judgment in Decathlon Sports India Pvt. Ltd. (Supra), cannot also come to the aid of the prosecution, as in the said case, while reiterating that Section 195 CrPC bars the Court from taking cognizance of an offence under Section 188 of the IPC and holding that in absence of a complaint, taking of cognizance is bad and such cognizance has to be quashed by the Court, the Court held that the filing of the FIR itself cannot be quashed. I may quote from the judgment as under:-
16. In the present case, there is no challenge to the registration of FIR. The challenge is to the order passed by the learned Metropolitan Magistrate taking cognizance of the Final Report, which is not a complaint under Section 195 CrPC. The above-said judgment, therefore, cannot come to the aid of the prosecution.
17. In view of the above, the order dated 08.10.2021 passed by the learned Metropolitan Magistrate in Criminal Case No. 5612/2021 is quashed, and proceedings emanating therefrom are also quashed. However, it is made clear that the respondent shall be at liberty to file a fresh complaint, if so advised. In case such complaint is filed, the same would be considered in accordance with law.
18. The petition is allowed in the above terms. The pending application also stands disposed of.
19. There shall be no order as to costs.