Allowed

Balwinder Kaur v. State of Punjab etc.

Punjab & Haryana HC23 May 2012CRM-M/9195/2008

Case brief

AI extract

What is this about?

High Court allowed a petition to quash criminal proceedings initiated against the petitioner under Section 182 IPC. The Court held that prosecution required a written complaint under Section 195 Cr.PC by a competent public servant, which was absent, rendering the proceedings without jurisdiction and a misuse of court process.

What did the court decide?

Impugned Calendar and consequent proceedings under Section 182 IPC are quashed; petitioner is discharged from prosecution.

Balwinder Kaur Vs State of Punjab etc. — Quashing and FIR | Punjab & Haryana HC (2012)

¶1

CRM No. M-9195 of 2008 -1-

¶2

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

¶3

CRM No. M-9195 of 2008

¶4

Date of Decision:-23.5.2012

¶5

Balwinder Kaur ......Petitioner

¶6

Versus

¶7

State of Punjab & Ors. .....Respondents

¶8

CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.

¶9

Present: Mr.Ankur Mittal, Advocate for the petitioner.

¶10

Mr.J.S.Brar, Assistant Advocate General, Punjab for respondent Nos.1 to 5.

¶11

Nemo for respondent No.6.

¶12

MEHINDER SINGH SULLAR, J. (Oral)

¶13

Tersely, the relevant facts and material, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, are that, petitioner Balwinder Kaur was working as Superintendent in the office of Director, Ayurvedic Punjab, Chandigarh (for brevity “the Director”). One Gurmeet Singh (respondent No.6) was also working as Steno in the Directorate. He was subsequently transferred to Mansa. Anticipating the involvement of respondent No.6 and deeply disturbed by the false obscene complaints, the petitioner and 11 other female employees made the representation (Annexure P1) to the Director, which, in substance, is as under:-

¶14

“It is doubted that Gurmeet Singh, who is working in the Directorate as Steno and who has been transferred to Ayur and Yunani, Office Mansa, is behind these complaints because when he came to main office for getting relieved then he threatened by pointing his revolver in front of everybody that he would make the lives of Balwinder, Jaswinder and Kuldeep a hell because they have got him transferred by asking the minister. From that day only, chain of the complaints has been started.

¶15

CRM No. M-9195 of 2008 -2-

¶16

Smt.Balwinder Kaur and Jasvinder Kaur have proved also that these complaints have been made by Gurmeet Singh only. All the officials also know regarding the bringing of revolver to the office by this employee. Respected Director also knows about this. He keeps on talking obscene things in the office and uses filthy language.

¶17

Therefore, we all the employees request you to take prompt and strict action against the accused responsible for making such complaints under the Prevention of Obscenity Act. So that the female employees against whom the complaints have been made can get their repute back and the working in the office can be started in a proper way.

¶18

Moreover, the female employees of the department can get the proof that the government is in fact aware of the rights of the women.

¶19

Sd/- by around 12 female employees”

¶20

The petitioner has also made 2^nd representation (Annexure P2) to the Director. The applications were forwasrded by the Director for taking appropriate action in the matter to SSP Mohali, who in turn marked the complaint to SHO, by virtue of letter dated 24.4.2006 (Annexure P3). After recording the statement (Annexure P4) of respondent No.6 on 12.5.2006, the complaint was filed on the same very day by SI Rajpal Singh, Incharge of Police Post City, Kharar, vide report (Annexure P5). Gurmeet Singh (respondent No.6) also moved one application (Annexure P8) to the SSP for initiating the proceedings under Section 182 IPC against petitioner Balwinder Kaur and witness Jagtar Singh. On the basis of inquiry (Annexure P9) by ASI Ram Singh, the SHO of Police Station Kharar prepared and submitted the impugned Calendar dated 19.5.2007 (Annexure P10) in the Court to prosecute them (petitioner and Jagtar Singh) under Section 182 IPC. Consequently, the Court took cognizance and issued process to them.

¶21

The petitioner did not feel satisfied with the initiation of criminal prosecution against her and preferred the present petition to quash the impugned Calendar (Annexure P10) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC, inter-alia pleading that she

¶22

CRM No. M-9195 of 2008 -3-

¶23

alongwith 11 other female employees made the representation (Annexure P1) and intimated the incident dated 17.4.2006, vide application (Annexure P2) to the Director and that the vexatious & malicious prosecution has been launched by the SHO against her on the complaint of respondent No.6. Moreover, it was urged that no Court can take cognizance after a lapse of period of limitation, as contemplated under Section 468 Cr.PC.

¶24

Levelling a variety of allegations and narrating the sequence of events in detail, in all, according to the petitioner that she has been falsely implicated by the SHO of Police Station Kharar at the instance of respondent No.6 and no indicated offence whatsoever is made out against her. On the strength of aforesaid grounds, the petitioner sought to quash the impugned Calendar (Annexure P10) and all other consequent proceedings arising thereto in the manner as described hereinabove.

¶25

The respondents refuted the prayer of petitioner and Raj Balwinder Singh, DSP filed the reply, by way of affidavit on behalf of respondent Nos.1 to 5, whereas respondent No.6 filed his separate reply, inter-alia taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioner. It was claimed that since the information given by her was found to be false, so, she is liable to be prosecuted under Section 182 IPC. Instead of reproducing the entire contents of the replies and in order to avoid the repetition, suffice it to say, that all the respondents have reiterated the allegations contained in the Calendar (Annexure P10). However, it will not be out of place to mention here that they have stoutly denied all other allegations contained in the main petition and prayed for its dismissal. Thus, it would be seen that the facts of this case are neither intricate nor much disputed. That is how I am seized of the matter.

¶26

Having heard the learned counsel for the parties, having gone

¶27

CRM No. M-9195 of 2008 -4-

¶28

through the record and legal provisions with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present petition deserves to be accepted in this context.

¶29

Above being the position on record, now the short & significant questions, though important, that arise for determination in the instant petition are, as to whether a complaint in writing as required under Section 195 Cr.PC had been presented by a public servant concerned and whether the SHO has jurisdiction to file the impugned Calendar (Annexure P10) against the petitioner in the Court, that too, at this belated stage or not?

¶30

Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative.

¶31

Ex facie, the argument of learned State counsel that since the SHO was competent to initiate the criminal prosecution against the petitioner, so, no ground to quash the impugned Calendar is made out, is not only devoid of merit but misplaced as well.

¶32

As is evident from the record that, the petitioner and 11 other female employees moved the representation (Annexure P1) to the Director. Section 195 Cr.PC postulates that “no court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) (including Section 182 IPC), except on the complaint in writing of a public servant or by any authority to whom he is subordinate.” The language of this Section is unambiguous and does not admit of any doubt. The Court of competent jurisdiction has been authorized to take cognizance of an offence under section 182 IPC only on the complaint in writing by a public servant, to whom, the complaint was made or by any authority to whom he is administratively subordinate and not otherwise.

¶33

In the instant case, it is not a matter of dispute that the petitioner and 11 other female employees made the representations (Annexures P1 & P2) to the

¶34

CRM No. M-9195 of 2008 -5-

¶35

Director and the impugned Calendar (Annexure P10) was prepared and submitted in the Court by the SHO of Police Station Kharar. Therefore, the SHO was neither competent nor legally empowered/authorized to submit the impugned Calendar in the Court. Only the Director or any other authority, to whom, he was administratively subordinate, was only legally competent to institute the indicated criminal proceedings against the petitioner. Thus, the very initiation of criminal prosecution is not only illegal & without jurisdiction, but vitiate the entire proceedings in the Court as well.

¶36

This is not the end of the matter. The perusal of the record would reveal that the Director referred the matter to the SSP Mohali to take appropriate action in the matter, by means of letter (Annexure P3). The statement (Annexure P4) of Gurmeet Singh (respondent No.6) was recorded by Rajpal Singh SI of Police Post City Kharar on 12.5.2006. On the same very day, he filed the complaint, vide report dated 12.5.2006 (Annexure P5). On the contrary, the SHO of the Police Station recorded the statement (Annexure P6) of petitioner Balwinder Kaur and witness Jagtar Singh on 16.5.2006, much after the complaint was filed on 12.5.2006. It was an eye wash by the police to help respondent No.6 for the reasons best known to them. Therefore, the police has exceeded its investigational power, prepared and submitted the false Calendar in the Court against the petitioner at the instance of respondent No.6 in a very casual & cavalier manner and it cannot be sustained in view of the law laid down by this Court in case Kehar

¶37

Singh v. State of Punjab 2012(1) RCR (Criminal) 458.

¶38

Sequelly, there is another aspect of the matter, which can be viewed from entirely a different angle. As indicated here-in-before, the petitioner was prosecuted under section 182 IPC, which posits that whoever gives to any public servant any information which he knows or believes to be false, shall be punished under this section. There is no material on record much less cogent even to suggest

¶39

CRM No. M-9195 of 2008 -6-

¶40

remotely the involvement of the petitioner in this regard. In other words, all the essential ingredients of the pointed offence are deeply lacking in the present case. Moreover, the maximum sentence provided under Section 182 IPC is for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

¶41

Likewise, Section 468 Cr.PC escalates that “no court shall take cognizance of any offence beyond the period of limitation of one year, if the offence is punishable with imprisonment for a term not exceeding one year.” Meaning thereby, the cognizance of the offence u/s 182 IPC against the petitioner is otherwise barred by limitation, as envisaged under Section 468 Cr.PC. It cannot possibly be disputed that the object of Criminal Procedure Code in putting a bar of limitation on prosecution is clearly to prevent the parties from filing cases after a long time and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of offence. It is not a matter of dispute that the plea of bar of limitation can be raised at any stage of proceedings and that even when it was not raised, the Magistrate should have considered this aspect of the matter of limitation while exercising the powers and authority in the light of sections 468 and 473 Cr.PC.

¶42

Even otherwise, indeed it requires to be noticed that the petitioner was not the one, she alongwith 11 other female employees had submitted the representation (Annexure P1) to the Director. Strange enough, she has been singled out and being prosecuted on the complaint of respondent No.6 maliciously and vexatiously in order to wreak vengeance and the criminal proceeding is manifestly attended with mala fide against her. The SHO has acted under some kind of undisclosed, undue pressure and illegally prepared the false Calendar (Annexure P10), which deserves to be set aside.

¶43

Thus, seen from any angle, to my mind, if the crux of the facts and

¶44

CRM No. M-9195 of 2008 -7-

¶45

material on record, as discussed hereinabove, the initiation of proceedings under Section 182 IPC against the petitioner, by virtue of impugned Calendar (Annexure P10) and all other subsequent proceedings arising therefrom are sheer misuse of process of law. If such like false criminal prosecution is allowed to continue, then, it will inculcate and perpetuate injustice to the case of the petitioner, which is not legally permissible. Such proceedings being misuse of process of law are not only illegal, but without jurisdiction as well and are liable to be quashed in the obtaining circumstances of the case.

¶46

No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

¶47

In the light of aforesaid reasons, the instant petition is accepted. Consequently, the impugned Calendar (Annexure P10) and all other consequent proceedings arising thereto are hereby quashed. The petitioner is discharged from the indicated criminal prosecution in this relevant connection.

¶48

(Mehinder Singh Sullar) Judge

¶49

23.5.2012 AS

¶50

Whether to be referred to reporter ? Yes/No

Balwinder Kaur v. State of Punjab etc.

Case brief

What is this about?

What did the court decide?

Balwinder Kaur v. State of Punjab etc.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kanwarjit Singh Vs State of Haryana and Ors.

Ajay Ahlawat & Ors. Vs Rajesh Tomar & Anr.

Gian Singh Vs State of Punjab and Anr.

Amarjit Singh Vs State of Punjab

State of Haryana Vs Ashutosh and Anr.

Rajesh Kumar and Ors. Vs State of Punjab and Ors.