Full Text
HIGH COURT OF DELHI
SANTOKH SINGH CHAWLA ..... Petitioner
Through: Mr. Rajesh Batra, Mr. Dhruba Dhar and Mr. Rohit Chandra, Advocates
Through: Mr. Manoj Pant, APP for the State with SI Jasbir Malik, P.S. Kapashera
JUDGMENT
Submissions On Behalf Of Parties...................................................4
Embargo Of Section 195 Cr.P.C. Viz. Offence Under Section
186/188 IPC ........................................................................................5 i. Law Of Section 195 Cr.P.C. ......................................................5 ii. Judicial Precedents.....................................................................6 iii. Registration Of FIR And Investigation By Police Not Barred
Under Section 195 Cr.P.C..............................................................10
Whether Cognizance Taken In The Present Case Is Hit By The
Embargo Of Section 195 Cr.P.C. ...................................................11
Conclusion & Directions to District Magistrates etc....................16
SWARANA KANTA SHARMA, J.
1. By way of present petition filed under Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C‟), the petitioner seeks setting aside of impugned order dated 22.02.2023 passed by learned Principal District and Sessions Judge, South-West, Dwarka Courts, New Delhi in CR No. 126/2022, as well as impugned order dated 08.02.2021 passed by learned Metropolitan Magistrate-10, Dwarka Courts, New Delhi in Cr. Case 7950/2020, and for quashing of chargesheet no. 01/2020 dated 15.09.2020 in FIR bearing no. 113/2020 dated 24.03.2020 registered at Police Station Kapashera for offences punishable under Sections 186/188/506 of Indian Penal Code, 1860 („IPC‟) and subsequent proceedings.
FACTUAL BACKGROUND
2. Background facts of the present case are that the instant FIR was registered on the basis of complaint filed by Executive Magistrate, Kapashera, who had stated that in view of outbreak of COVID-19 pandemic, the Government of NCT of Delhi had issued lockdown notifications and curfew orders, and prohibitory orders under section 144 Cr.P.C. had also been issued by the Commissioner of Police and the teams of each district, headed by concerned District Magistrates, had been constituted to enforce the same. It was stated that a complaint had been forwarded to the office of Hon‟ble Prime Minister as well as Chief Minister of Delhi alleging that an amusement park i.e. „Fun and Food Water Park‟ was open in-spite of lockdown orders issued by the authorities. Accordingly, the District Magistrate (South-West)/ Chariman, DDMA (South-West) had directed the teams of Kapashera Sub-Division to get the water park inspected immediately and as per the directions, an inspection team had been constituted. When the inspection team had arrived at the site, the staff at the water park had refused to open the main gate for inspection, leading to the involvement of the police. Upon entering the premises with the help of police, the inspection team had found raw/mixed construction material and fresh cement mixture near the pool, which indicated ongoing repair work. Subsequently, the owner of Water Park i.e. the present petitioner had arrived and had engaged in misconduct towards the inspection team, including destroying of report and issuing threats. The inspection team had contacted the concerned SDM, SHO, as well as the Executive Magistrate, Kapashera, who after arriving at the site, had sealed the premises. Thereafter, the present FIR was registered under Sections 186/188/506 of IPC due to obstruction faced by public servants and violation of the lockdown orders.
3. After conducting investigation and obtaining complaint under Section 195 Cr.P.C., the chargesheet was submitted before the learned MM on 28.10.2020. The cognizance of the same was taken by the learned MM vide order dated 08.02.2021, which was challenged before the learned Sessions Court by way of a revision petition, which was disposed of vide order dated 22.02.2023. The learned Sessions Court had allowed the revision petition to the extent that no case under Section 506 IPC was made out against the accused, however, no infirmity was found in the order taking cognizance of offences under Sections 186/188 of IPC.
4. Aggrieved by the aforesaid, the present petition has been filed seeking setting aside of the orders passed by both the Courts below as well as the quashing of FIR and all subsequent criminal proceedings.
SUBMISSIONS ON BEHALF OF PARTIES
5. Learned counsel for the petitioner states that the cognizance taken by the learned MM is bad in law as no written complaint hadbeen filed by the public servant competent to do so, which is a mandatory requirement under Section 195 of Cr.P.C. Further, learned counsel states that the allegations mentioned in the chargesheet do not indicate commission of any offences for which the accused has been summoned. It is argued that there was only a minor disagreement over the conduct of the inspecting team, and the same cannot be construed to be an obstruction of any kind. Learned counsel further states that the statements of witnesses are inconsistent with the inspection report. It is argued that the petitioner was not aware of the impugned notification, and the same has also not been placed on record by the state.
6. Per contra, learned APP for the State argues that the petitioner has already raised all these contentions before the learned Sessions Court. It is stated that a complaint under Section 195 Cr.P.C. in writing was filed, and therefore the learned MM was justified in taking cognizance, as also held by learned Sessions Court. It is stated that obstruction caused to a public servant while performing his lawful duty is an offence which is serious in nature, and the same cannot be taken lightly by the Courts.
7. The arguments addressed on behalf of both sides have been heard. The orders passed by both the Courts below and other material on record have also been perused.
EMBARGO OF SECTION 195 CR.P.C. VIZ.
OFFENCE UNDER SECTION 186/188 IPC
8. The issue raised before this Court is whether the learned Trial Court erred in taking cognizance of offences under Section 186/188 of IPC, for which a bar exists under Section 195 of Cr.P.C. i. Law of Section 195 Cr.P.C.
9. At the outset, the relevant portion of Section 195 of Cr.P.C. is reproduced herein-under for reference:
10. The term „complaint‟ has been defined under Section 2(d) of Cr.P.C. which includes any allegation made orally or in writing to a Magistrate. However, Section 195 Cr.P.C. specifically provides that the complaint in respect of offences punishable under Sections 172 to 188 of IPC has to be made in writing by the concerned public servant. ii. Judicial Precedents
11. The law of Section 195 of Cr.P.C. and the manner in which complaint under the same is to be filed was interpreted and explained by the Hon‟ble Apex Court in case of P.D. Lakhani v. State of Punjab (2008) 5 SCC 150 whereby it was observed as under:
12. The Hon‟ble Apex Court in case of C. Muniappan v. State of Tamil Nadu 2010 9 SCC 567, after considering several judicial precedents, had explained the law of Section 195 of Cr.P.C. with respect to charges under Section 188 of IPC in the following manner: “...Charges under Section 188 IPC ***
28. Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).
29. The test of whether there is evasion or non-compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.
30. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under: "....Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section." (Emphasis added)
31. In Sachida Nand Singh & Anr. v. State of Bihar & Anr., (1998) 2 SCC 493, this Court while dealing with this issue observed as under: "7...Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well-recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise." (Emphasis supplied)
32. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under: "The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside." (Emphasis added)
33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other 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.
34. Learned counsel for the appellants have submitted that no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, entire prosecution case falls.
35. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC...”
13. Thus, it is evident from a bare reading of the statute as well as judicial precedents that for offences punishable under Section 186/188 of IPC, the Court is barred from taking cognizance unless a written complaint is made as per the mandate of Section 195(l)(a)(i) of Cr.P.C. by the concerned individual/authority. iii. Registration of FIR and Investigation by Police not barred under Section 195 Cr.P.C.
14. There is also no dispute on the proposition that the bar under Section 195 Cr.P.C. exists only in relation to taking cognizance by Courts, and not upon registration of an FIR and the investigation by the police thereto.
15. In this regard, the Hon‟ble Apex Court in case of State of Punjab v. Raj Singh (1998) 2 SCC 391 has held that the statutory power of the police to investigate cognizable offences is not barred by Section 195 Cr.P.C. Again in M. Narayandas v. State of Karnataka (2003) 11 SCC 251, while reiterating the decision in case of Raj Singh (supra), the Hon‟ble Apex Court has held as under: “…Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided that procedure laid down in Section 340 Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected…”
16. Therefore, to sum up, as per mandate of Section 195 Cr.P.C, there has to be a complaint in writing made by the concerned public servant to the Court so as to enable the Court concerned to take cognizance of offence under Section 188 of IPC.
WHETHER COGNIZANCE TAKEN IN THE PRESENT CASE IS HIT BY THE EMBARGO OF SECTION 195 CR.P.C.
17. This Court has examined the records of the case and it is revealed that the public servant in the present case had lodged a complaint with the concerned police officials on the basis of which the present FIR was registered and investigation was carried out by the police. However, after the conclusion of investigation, the police officials had requested the concerned public servant to give a complaint under Section 195 Cr.P.C. so as to prosecute the accused i.e. the petitioner herein. The said request letter dated 20.07.2020 sent to the SDM, Kapashera, by ASI Gajraj Singh, P.S. Kapashera, reads as under: “...Sub: Request to give Complaint u/s 195 CrPC Sir, It is submitted that the aforesaid case was registered on the joint complaint of Sh. RK Gupta, Executive Magistrate, Sh. Puneet Singh Dagar OST Officer, Pawan Kumar Acct. Officer, Manish Gulla NT/KPH, Sh. Kuldeep PC/DDMA and Sh. Vijay Kumar PC/DDMA. It is stated that on 24.03.20 teams were constituted by worthy DM/SW to enforce the lockdown & to advise the people to stay at home and not to roam outside. On receipt of complaint forwarded by Hon'ble PM Office & Chief Minister's officer GNCTD regarding opening of Fun & Food Water Park during lockdown. Accordingly, a team of above mentioned officials reached Water Park i.e. Fun & Food Village and asked to open the main gate to get the site inspected but available staff denied to open the Gate. With the help of police, the site was inspected and during inspection it was found that raw/mixed construction material was lying near pool and it was found that repairing work was being carried out which is very much clear from the fresh cement mixture and work done. However, the labours were removed in the meanwhile. Further Sh. Santokh Singh also misbehaved with the staff. Photographs of the site were taken and after inspection the above water park was sealed. Keeping in view of guidelines in the matter of Arnesh Kumar Vs. State of Bihar, accused Santokh S/o Late Sh. Sewa Singh R/o Fun & Food Village, Kapashera, New Delhi was not arrested in the case and was bound down u/s 41A CrPC in the case. The draft chargesheet against accused Santokh has been prepared. To prosecute the accused Santokh, complaint u/s 195 CrPC is required. Therefore, in view of above, it is requested that complaint u/s 195 CrPC against Santokh in this regard may kindly be given please...”
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.PC 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 96 (2002) 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:
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. CONCLUSION & DIRECTIONS TO DISTRICT MAGISTRATES ETC.
24. As observed in preceding discussion, there was no illegality or infirmity in getting the present FIR registered and the subsequent investigation by the police. However the concerned public servant in the present case should have prepared a complaint as envisaged under Section 195 Cr.P.C. containing the allegations against the petitioner and the material that was brought on record during the course of investigation by the police, and the same should have been filed before the learned Magistrate or the same could have forwarded along with the chargesheet to the Court concerned.
25. In the present case, the aforesaid course was not followed by the concerned public servants. Thus, the cognizance as taken by the learned Magistrate on the basis of chargesheet was bad in law.
26. Accordingly, the order dated 08.02.2021 passed by 2021 passed by learned Metropolitan Magistrate-10, Dwarka Courts, New Delhi in Cr. Case 7950/2020 taking cognizance of chargesheet is set aside.
27. Needless to say, the concerned public servant will be at liberty to file an appropriate complaint as per mandate of Section195 Cr.P.C. to set criminal law into motion. In this regard, this Court finds support from the decision of Hon‟ble Apex Court in case of P.D. Lakhani (supra).
28. Before parting with this case, this Court is constrained to take note of the fact that issue regarding non-compliance of Section 195 Cr.P.C. has been raised repeatedly in number of cases before this Court, as revealed upon perusal of several decisions passed by Coordinate Benches of this Court for last more than thirty years. While examining these judicial precedents, this Court came across similar cases wherein due to the same mistake, oversight or negligence on part of public servants concerned, the order of cognizance had been set aside by this Court. Though this Court will refrain from using harsh language to comment on the same as the history of such cases speaks for itself, this Court reiterates and directs the concerned authorities to issue appropriate guidelines to the concerned District Magistrates and other public servants and bring to their notice, not only the legal provisions but also the judgments passed by this Court as well as Hon‟ble Apex Court wherein non-filing of appropriate complaint under Section 195 Cr.P.C. has led to setting aside of orders taking cognizance on the basis of chargesheets.
29. The present petition alongwith pending application is accordingly disposed of in above terms.
30. A copy of this judgment be forwarded to (i) all District Magistrates, Delhi, and (ii) Secretary, Department of Law, Justice & Legislative Affairs, Government of NCT of Delhi, for necessary information.
31. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J JULY 31, 2023