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Punjab-Haryana High Court
Jai Singh vs The State Of Punjab And Others on 12 August, 2009
CWP No. 2552 of 2009                                              [1]

            IN THE HIGH COURT OF PUNJAB & HARYANA AT
                        CHANDIGARH




                                   CWP No. 2552 of 2009
                                   Date of Decision: August 12, 2009




Jai Singh                                     .......... Petitioner


                        versus



The State of Punjab and others                ........... Respondents



CORAM:      HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE
            HON'BLE MR. JUSTICE HEMANT GUPTA




1.Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?


Present :   Mr. Surinder Gandhi, Advocate for the petitioner

            Mr. Amol Rattan Singh, Additional Advocate General, Punjab


                                 *****


HEMANT GUPTA, J.

The petitioner has invoked the jurisdiction of this Court for quashing of FIR No.107 dated 9.9.2007 under section 188 of the Indian Penal Code, Police Station Lehra under section 482 of the Code of Criminal Procedure, 1973 ( for short "the Code") and by claiming a writ of Certiorari CWP No. 2552 of 2009 [2] under Article 226 of the Constitution of India.

The petitioner alleges himself to be a social worker and General Secretary of "Volunteers for Social Justice", which is a Non Governmental Organization. The petitioner alleges himself to be Chairperson of the Dalit Dasta Virodhi Andolan, a programme run by the organization. The petitioner alleges that 88 Padyatri were arrested by the police belonging to down trodden class of the society and by violating the fundamental rights of such persons. It is pleaded that a "Awareness Pad Yatra" was started in the entire State of Punjab. The intimation of the said Pad Yatra was given to the Deputy Commissioners, Senior Superintendents of Police and all concerned Station House Officers and Sub Divisional Magistrates. The compaign was started on 14.08.2007 from District Fatehgarh Sahib. On 2.9.2007, Padyatries entered the jurisdiction of District Sangrur but on 8.9.2007 when Padyatries reached near village Jalour, Tehsil Moonak, District Sangrur, more than 100 unlawful persons armed with lathis and weapons did not allow the Padyatries to enter village Jalour. The police personnel accompanying Padyatries did not take any action against such persons but moved the Padyatries to a distance of 10 Kms from village Jalour and detained them in Police Chowki Kauria. The next day the petitioners were informed that they have been booked for the offences under sections 107/151 of the Code and 188 of the Indian Penal Code. All the Padyatries were taken to Police Station Lehra on 9.9.2007 and arrested for the offences under sections 107/151 of the Code and 188 of the Indian Penal Code. DDR No. 21 dated 9.9.2007 for the offences under sections 107/151 of the Code and FIR No. 107 dated 9.9.2007 under section 188 of the Indian Penal Code was registered against 88 persons including the petitioner on the CWP No. 2552 of 2009 [3] basis of statement of Surjit Singh, Sub Inspector. The petitioner and the Padyatries were later on informed by the Station House Officer that a proclamation under section 144 of the Code has been issued by the District Magistrate, Sangrur, and said proclamation has been violated by them. It is alleged by the petitioner that the proclamation under section 144 of the Code was not shown to the petitioner and that proceedings initiated by the Station House Officer, Police Station Lehra, are in violation of Article 19 and 21 of the Constitution of India. The petitioner further alleges that they have travelled more than 200 Kms in District Sangrur with police protection but none has informed about proclamation under section 144 of the Code. The notification dated 3.8.2007 in respect of proclamation under section 144 of the Code was presented along with police reports before the Court of Shri Gurnam Singh, Sub Divisional Judicial Magistrate, Moonak. It is pleaded that the petitioner has been discharged under sections 107/151 of the Code on 17.09.2007.

The petitioner and other Padyatries have moved an application for discharge before the learned Trial Magistrate. The same was dismissed on 8.7.2008. It was found that the complaint has been filed by a public servant i.e. Shri V.K. Ohri, District Magistrate, Sangrur, on 23.11.2007 and that the present case is being dealt with as a complaint case. The District Magistrate, Sangrur, has filed complaint before the learned trial Magistrate along with the report of the police under section 173 of the Code. Therefore, the accused cannot be discharged. The challenge in the present writ petition is, inter alia, to FIR No. 107 dated 9.9.2007 and the order dated 8.7.2008 passed by the learned Sub Divisional Judicial Magistrate, Moonak, Annexure P-14 CWP No. 2552 of 2009 [4] The grievance of the petitioner in the present writ petition is that First Information Report for the offence under section 188 of the Indian Penal Code can not be lodged with the police without the permission of the public servant concerned in view of bar created under section 195 of the Code. The said provision contemplate that no Court shall take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code 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, thus, contended that the learned Trial Magistrate is not competent to take cognizance of an offence under section 188 of the Indian Penal Code without a written complaint of a public servant directly submitted to Court.

Learned counsel for the petitioner relies upon Daulat Ram vs. State of Punjab, AIR 1962 SC 1206; State of U.P. vs. Mata Bhikh and others, (1994) 4 SCC 95; Criminal Misc. No. 50045-M of 2007 titled Bibi Jagir Kaur vs. State of Punjab, decided by this Court on 24.07.2008 and Ashok Kumar Jain vs. State of Punjab, 2008(1) RCR 920 to contend that FIR could not have been lodged by the Station House Officer as the cognizance of offence under Section 188 of the Indian Penal Code could be taken only on the complaint of a public servant concerned. In pursuance of the said illegal FIR, the Padyatries were arrested and, therefore, the arrest is illegal and not sanctioned by Law.

Mr. Amol Rattan Singh, learned Additional Advocate General, Punjab, has produced the records in respect of lodging of an FIR and the subsequent proceedings. The record shows that though the FIR was lodged by the Sub Inspector Surjit Singh but District Magistrate, Sangrur, has filed CWP No. 2552 of 2009 [5] a complaint before the Sub Divisional Judicial Magistrate along with the report of the police investigation under section 173 of the Code. It is contended that the offence under section 188 is cognizable offence, therefore, the police could act in respect of such an offence without the prior permission of Court. Learned counsel for the respondents has argued that under section 195(1)(a) of the Code, the bar is in respect of cognizance of an offence by the Court. On completion of the investigation, the public servant has lodged a complaint to the Sub Divisional Judicial Magistrate and submitted police investigation as part of complaint, therefore, there is no illegality in the lodging of FIR by a police officer.

To appreciate the contentions raised, the reproduction of Section 195(1) (a) & (b) would be relevant. The said provision read 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, 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 section 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 CWP No. 2552 of 2009 [6]

(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 of some other Court to which that Court is subordinate".

We shall firstly discuss certain judgments on the question as to when the court takes cognizance of the offence and the stage when the bar under section 195 arises. One of the first case on the subject is R.R. Chari vs. The State of Uttar Pradesh, AIR 1951 SC 207. In the said case Hon'ble Supreme Court was dealing with a matter under the Prevention of Corruption Act. It was held that issuance of search warrants for the purpose of an investigation or of a warrant of arrest cannot be regarded as an act by which the cognizance of an offence can be said to have taken. It is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 or under Section 204 of Chapter XVII of the Code, it can be said that he had applied his mind and, therefore, the Court had taken cognizance. It was a case where the offence under the penal code was non cognizable offence but the provisions of the Prevention of Corruption Act has made the offence as cognizable offence. The accused was arrested without warrants issued by the magistrate. It was held that such arrest is not bad in law. It was held to the following effect:-

" It is clear from the wording of the section that the initiation of the proceedings against a person commences CWP No. 2552 of 2009 [7] on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non- cognizable offences as defined in the Criminal Procedure Code on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate".

xxx xxx xxx " It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) of the Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter--proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g. ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." In our opinion that is the correct approach to the question before the court".

CWP No. 2552 of 2009 [8] In Narayandas Bhagwandas Madhavdas vs. The State of West Bengal, AIR 1959 SC 1118, the Court considered the provisions of Section 16 of the Foreign Exchange Regulation Act, 1947. It was held that the Court takes cognizance when the complaint is filed and not when search warrant or warrant of arrest is issued. In the aforesaid case, the warrants of arrest were issued by the Additional District Magistrate and the accused admitted to bail. It was thereafter authorization under section 23(3)(b) of the Act was given to an Inspector and complaint filed. The Court found that when the Additional District Magistrate was asked to issue search warrant, he was merely requested to grant permission to the police officer to investigate the case. Such order directing the issue of a warrant cannot be regarded as orders which indicate that the Additional District Magistrate took cognizance of the offence. It was held to the following effect: -

" .... If the complaint was filed with the authority of the Reserve Bank, as aforesaid, there would be no legal bar to the Magistrate taking cognizance. On the other hand, if there was no proper authorization to file the complaint as required by S. 23 the Magistrate concerned would be prohibited from taking cognizance. In the present case, as the requisite authority had been granted by the Reserve Bank on 27-1-1953 to file a complaint, the complaint filed on February 2, was one which complied with the provisions of S.23 of the Foreign Exchange Regulation Act and the Additional District Magistrate could take cognizance of the offence which, indeed, he did on that date. The following observation by Das Gupta J., in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, AIR 1950 Cal 437, was approved by this Court in the case of R.R. Chari v. The State of Uttar Pradesh, 1951 SCR 312 at p. 320: (AIR 1951 SC 207 at p. 210):"
CWP No. 2552 of 2009 [9] In State of Punjab vs. Raj Singh and another, (1998) 2 SCC 391, Supreme Court held that Section 195 of the Code comes into operation at the stage when the Court intends to take cognizance of an offence under section 190(1) of the Code and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 of the Code. It was held that upon the charge-sheet, if any, filed on completion of the investigation into such an offence, the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) of the Code.

Considering the said judgment, Hon'ble Supreme Court in M. Narayandas vs. State of Karnataka and others, (2003) 11 SCC 251, held to the following effect:-

" ..... 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 the procedure laid down in Section 340 of the Criminal Procedure Code is followed".

In Chief Enforcement Officer vs. Videocon International Limited, (2008) 2 SCC 492, Supreme Court while examining Chapter XIV CWP No. 2552 of 2009 [10] and XVI of the Code has interpreted as to when the Court takes cognizance of the offence and also culled out the distinction between "initiation of proceedings" dealt with in Chapter XIV and the "commencement of proceedings" covered by Chapter XVI. It was held to the following effect:-

"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of a offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.
24. From the above scheme of the Code, in our judgment, it is clear that "Initiation of proceedings", dealt with in Chapter XIV, is different from "Commencement of proceedings"

covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of CWP No. 2552 of 2009 [11] proceedings under Chapter XIV with commencement of proceedings under Chapter XVI".

The above judgments disclose distinction between investigations by the police and cognizance of an offence by the court. The power of arrest and search by the police in cognizable offence has been recognized. The bar being to take cognizance by the court alone. It may be noticed that provisions of Section 195(1)(a) are pari materia with the provisions of Section 195(1)(b) of the Code. The difference being "public servant" in Section 195(1)(a) substituted by the "Court" in Section 195(1)

(b) of the Code.

In Daulat Ram's case (supra), relied upon the learned counsel for the petitioner, the charge sheet was put up by the Station House Officer for an offence under section 182 of the Indian Penal Code. It was found that the words " no court shall take cognizance" in section 195 of the Code have been interpreted on more than one occasion and they show that there is an absolute bar against the Court taking seisin of the case except in the provided by the section. It was found that the cognizance of the case was wrongly assumed by the Court without the complaint in writing of the public servant.

In Mata Bhikh's case (supra), it was found that the object of section 195 of the Code is to protect persons from being vexatiously prosecuted upon inadequate material or insufficient ground by persons actuated by malice or ill will or at the instance private individuals for the offences specified therein. The provisions of the section were found to be mandatory and that " Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing of the CWP No. 2552 of 2009 [12] public servant concerned". Both of these Supreme Court judgments in fact does not support the argument raised by learned counsel for the petitioner nor run contrary to the view being taken by us.

Ashok Kumar Jain's case (supra) relied upon by the petitioner relates to a case arising out of a FIR under section 188 of the Indian Penal Code. The said FIR was lodged on account of proclamation of section 144 of the Code in respect of sale of medicines without prescription. The Court relied upon earlier judgment of this Court in Jagtar Singh vs. Union Territory, Chandigarh, 1996(1) RCR (Criminal) 669. In the said judgment, reliance was placed upon Sawaran Singh vs. State of Punjab, 1994(3) RCR 352 and Bhagat Ram vs. The State of Punjab, 1991(1) RCR 192. The earliest of the judgment of this court is Bhagat Ram's case. In the aforesaid case, it was found that Shri Nirandar Singh has not filed any complaint to the Court concerned but simply lodged an FIR which has resulted in the prosecution of the petitioner. The said case, in fact, supports the view that complaint by a public servant is required to be lodged in the Court. In the said case, the public servant has not lodged complaint even after completion of investigations. Sawaran Singh's case (supra) relies upon Bhagat Ram's case. In Jagtar Singh's case (supra), the complaint was made by the public servant to the concerned police station and after investigations, the challan was filed in the Court of Judicial Magistrate along with a copy of the complaint made by the public servant. It was found that in terms of Section 195(1)(a) of the Code, it was obligatory for the public servant before whom such an offence has been committed, to file a complaint to the Magistrate directly. The cognizance of the offence by the concerned Court is dependent upon the complaint in writing by such officer CWP No. 2552 of 2009 [13] or an officer superior to such officer. It was, thus, found that the Code does not contemplate investigation in a normal way by the police and filing of challan, but complaint has to be presented directly to the Court concerned. In view of the said fact, FIR was quashed.

The Single Bench of Madhya Pradesh High Court in Ashok and others vs. The State, 1987 Criminal Law Journal 1750, found that the Court cannot convict an accused under section 188 of the Indian Penal Code and or under section 353 of the Indian Penal Code without complying with the provisions of Section 195 of the Code. The Court found that trial for the offences under section 186 and 353 of the Indian Penal Code without a special complaint as required under section 195(1)(a)(i) of the Code being illegal is vitiated. The said case also leads to the conclusion that cognizance by the Court is separate and distinct from investigation by the police.

We find that the judgments of Supreme Court in R.R. Chari's case (supra) and Narayandas Bhagwandas Madhavdas's case (supra) were not brought to the notice of the learned Judges of this Court, particularly in Jagtar Singh's case (supra) and /or Ashok Kumar Jain's case (supra). The distinction drawn in respect of lodging of FIR and process of investigation with that of lodging of a complaint by a public servant under section 195(1)(a) or (b) of the Code has not been noticed and considered as pointed out by Supreme Court in the judgments noticed above.

Thus, we are of the opinion that the investigations can be carried out by the police on a First Information Report in respect of a cognizable offence. The police could investigate into the offence under section 188 of the Indian Penal Code being a cognizable offence but the CWP No. 2552 of 2009 [14] Court could not take cognizance except on a complaint of a public servant. The process adopted by the respondent is in tune with such interpretation. The bar under section 195(1)(a) of the Code is only against the Court taking cognizance of the matter except on a complaint by a public servant. In the instant case, a public servant, in fact, moved the Court to take cognizance of the matter and, therefore, it cannot be said that there is any infraction of the provisions of Section 195(1)(a) of the Code.

In view of the above, the argument raised by the learned counsel for the petitioner is without merit. The Single Bench judgments of this Court i.e. Ashok Kumar Jain's case; Sarwan Singh's case and Jagtar Singh's case does not lay down good law. Thus, we find no merit in the present writ petition, which is dismissed with no order as to costs.

           ( T.S. THAKUR )                      ( HEMANT GUPTA )
           CHIEF JUSTICE                             JUDGE


August 12, 2009
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