Suresh Kumar vs State Of Haryana And Another on 28 April, 2025

Punjab-Haryana High Court

Suresh Kumar vs State Of Haryana And Another on 28 April, 2025

                                       Neutral Citation No:=2025:PHHC:055514




CRM-M-27684-2024                                                   -1-

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH
277/1

                                                   CRM-M-27684-2024 (O&M)
                                                  Date of decision: 28.04.2025

Suresh Kumar                                                ....Petitioner

                                      Versus

State of Haryana and another                                ....Respondents

CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR

Present:     Mr. Supneet Singh, Advocate for
             Mr. P.S.Dhaliwal, Advocate
             for the petitioner.

             Mr. Ramesh Kumar Ambavta, AAG, Haryana.

             Mr. Amit Siwach, Advocate
             for respondent No.2.

HARPREET SINGH BRAR J. (Oral)

1. The present petition has been filed under Section 482 Cr.P.C. for

quashing the FIR No.340 dated 15.06.2023 under Section 174-A IPC

registered at Police Station City Sonepat, District Sonepat alongwith all

subsequent proceedings arising out of the same.

2. The brief facts of the present case are that a complaint under

Section 138 of Negotiable Instruments Act, 1881 was filed against the

petitioner, wherein the petitioner was declared as proclaimed person and

subsequently, FIR (supra) was registered.

3. Learned counsel for the petitioner submits that the petitioner

was never served and was declared proclaimed person without following the

drill of Section 82 Cr.P.C. Further, the mandatory drill of Section 195 Cr.P.C.

has also not been followed in its letter and spirit by the trial Court.

4. Learned State counsel assisted by counsel for the complainant

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has supported the order passed by the learned trial Court by contending that

the petitioner did not put in appearance before the trial Court intentionally

and deliberately and, therefore, having left with no other option, proclamation

was issued to secure his presence and direction was issued for registration

of FIR.

5. I have heard learned counsel for the parties and perused the

record of the case with their able assistance, the matter is taken up for final

disposal.

6. Section 174-A of the IPC was introduced through the

Amendment Act of 2005, and a corresponding amendment was made to

Schedule 1 of the Criminal Procedure Code (Cr.P.C.), classifying this

provision as a cognizable offence. However, no corresponding amendment

was made to Section 195 of the Cr.P.C. to exclude Section 174-A IPC from

its scope. The proposition that Section 174-A IPC is governed by the

procedure as laid out in Section 195 Cr.P.C. is further supported by the fact

that Section 174-A IPC and the corresponding Section 209 of the Bhartiya

Nyaya Sanhita 2023, are essentially identical. However, Section 209 has

been explicitly removed from the purview of Section 215 of the Bhartiya

Nagarik Suraksha Sanhita, 2023 which mirrors Section 195 of Cr.P.C. In its

present form, thus, Section 195 of the Cr.P.C. clearly encompasses Section

174-A IPC, as the legislature in its wisdom this time has specifically excluded

Section 209 of the Bhartiya Nyaya Sanhita from the ambit of Section 215 of

the Bhartiya Nagarik Suraksha Sanhita. Furthermore, in 2006, an

amendment was made to Section 195(1)(b) of the Cr.P.C., but Section

195(1)(a)(i) was left unchanged. Therefore, it is evident that Section 195 of

the Cr.P.C. applies to the offence under Section 174-A IPC.

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7. As it is conclusive that Section 174-A IPC is governed by

Section 195, it would be apposite to emphasize that the drill of Section 195

of the Cr.P.C. is mandatory in nature. This position is supported by the

judgment of the Hon’ble Supreme Court’s rendered in C. Muniappan &

Others. v. State of Tamil Nadu, (2010) 9 SCC 567, wherein the following

observations were made:

“20. Section 195(a)(i) Criminal Procedure Code bars the
court from taking cognizance of any offence punishable under
Section 188 Indian Penal Code 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
Criminal Procedure Code 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 Criminal Procedure Code 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 Supreme Court 1708; Patel Laljibhai
Somabhai v. The State of Gujarat, AIR 1971 Supreme Court
1935; Surjit Singh & Ors. v. Balbir Singh, 1996(3) RCR
(Criminal) 240 : (1996) 3 SCC 533; State of Punjab v. Raj
Singh & Anr., 1998(1) RCR (Criminal) 576 : (1998) 2 SCC 391;
K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC
352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah &
Anr., 2005(2) RCR (Criminal) 178 : 2005(1) Apex Criminal

581).

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21. The test of whether there is evasion or non-compliance of
Section 195 Criminal Procedure Code 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
Supreme Court 293; and Durgacharan Naik & Ors. v. State
of Orissa, AIR 1966 Supreme Court 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 Indian Penal Code, though in truth and substance, the offence
falls in a category mentioned in Section 195 Criminal Procedure
Code Thus, cognizance of such an offence cannot be taken by
mis-describing it or by putting a wrong label on it.

22. In M.S. Ahlawat v. State of Haryana & Anr., 1999(4)
RCR (Criminal) 718, this Court considered the matter at length
and held as under :

“….Provisions of Section 195 Criminal Procedure
Code 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)

23. In Sachida Nand Singh & Anr. v. State of Bihar & Anr.,
1998(1) RCR (Criminal) 823 : (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)

24. In Daulat Ram v. State of Punjab, AIR 1962 Supreme
Court 1206, this Court considered the nature of the provisions
of Section 195 Criminal Procedure Code In the said case,
cognizance had been taken on the police report by the
Magistrate and the appellant therein had been tried and

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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)

25. Thus, in view of the above, the law can be summarised to
the effect that there must be a complaint by the public servant
whose lawful order has not been complied with. The complaint
must be in writing. The provisions of Section 195 Criminal
Procedure Code 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.”

9. Section 195(1)(a)(i) of the Cr.P.C. specifies that no court shall

take cognizance of any offence punishable under Sections 172 to 188 of the

IPC unless a written complaint is made by the concerned public servant or

another public servant to whom they are administratively subordinate. This

provision serves as an explicit bar, stating that the court cannot take

cognizance of a matter based on a Final Report under Section 173 of Cr.P.C.

A complaint, as defined under Section 2(d) of the Cr.P.C., excludes a Police

Report or Final Report. Thus, cognizance can only be taken on a written

complaint filed in Court under Section 200 of the Cr.P.C.. Further, Section

21(3) of the IPC defines “public servant” to include every judge or any

person empowered by law to perform adjudicatory functions, either

individually or as part of a body. As a result, from the plain language of

Section 195 of the Cr.P.C., it is clear that criminal prosecution under Sections

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172 to 188 of the IPC can only be initiated through a written complaint filed

by the concerned public servant or another public servant to whom they are

administratively subordinate. (See: Pardeep Kumar vs. State of Punjab

and Another, CRM-41656-2023 decided on 23.08.2023; Jarnail Singh @

Rana vs. State of Punjab, CRM-M-48718-2019 decided on 17.04.2024 and

Charanjit Singh @ Channi CRM-M-453-2023 pronounced on 06.12.2023).

10. In the present case, the learned Magistrate, being a public

servant as defined under Section 21 of the IPC, was required to follow the

procedure prescribed by law if he intended to initiate proceedings against the

petitioner for the offence under Section 174-A of the IPC. The proper course

of action would have been to file a written complaint before the competent

jurisdictional court. However, instead of adhering to this legal requirement,

the learned Magistrate merely forwarded a copy of its orders to the local

police, directing them to initiate proceedings under Section 174-A IPC, which

effectively led to the registration of the impugned FIR. Given the mandatory

nature and scope of Section 195 of the Cr.P.C., such an approach is in clear

violation of its provisions. Consequently, both the order passed by the

Magistrate directing the initiation of proceedings and the resulting FIR stand

contrary to the procedural safeguards enshrined in Section 195 of Cr.P.C.

11. While the scheme of criminal justice system necessitates

curtailment of personal liberty to some extent, it is of the utmost importance

that the same is done in line with the procedure established by law to

maintain a healthy balance between personal liberty of the individual-

accused and interests of the society in promoting law and order. Such

procedure must be compatible with Article 21 of the Constitution of India i.e.

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it must be fair, just and not suffer from the vice of arbitrariness or

unreasonableness.

Additionally, it is a settled law that where a power is given to do

a certain thing in a certain way, the thing must be done in that way or not at

all. Other methods are necessarily forbidden. Reference can be made to the

judgment of the Hon’ble Apex Court in Dharani Sugars and Chemicals Ltd.

v. Union of India reported in (2019) 5 SCC 480.

12. In the eventuality of his non-appearance, the presence of the

accused first ought to have been secured by issuing summons or bailable

warrants, and non-bailable warrants or proclamation should not generally be

issued at the first instance. A perusal of the impugned order reveals that the

trial Court has issued a proclamation straight away, without recording any

reasons to indicate that the petitioner has absconded or is concealing

himself from the process of law. Conspicuously, no summons or bailable

warrants were issued prior to issuance of the proclamation. This Court in the

judgment passed in Major Singh @ Major Vs. State of Punjab 2023 (3)

RCR (Criminal) 406; 2023 (2) Law Herald 1506 has held that the Court is

first required to record its satisfaction before issuance of process under

Section 82 Cr.P.C. and non-recording of the satisfaction itself makes such

order suffering from incurable illegality. Furthermore, the learned counsel for

the petitioner has taken a specific stand that the petitioner was declared to

be a proclaimed person without following the drill of Section 82 Cr.P.C. Since

the proclamation was never served on the petitioner, all actions taken post

non-execution of the proclamation stand vitiated.

13. Learned State counsel has not been able to controvert the

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aforesaid facts and the position of law as laid down in the aforesaid

judgment.

14. In view of the aforesaid facts and circumstances, the present

petition is allowed and the FIR No.340 dated 15.06.2023 registered under

Section 174-A IPC at Police Station City Sonepat District Sonepat and all the

consequential proceedings emanating therefrom, are hereby quashed qua

the petitioner.

28.04.2025                              (HARPREET SINGH BRAR)
sonia                                          JUDGE
             Whether speaking/reasoned:      Yes/No
             Whether reportable:             Yes/No




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