Rajiv Kumar vs State Of Punjab on 6 February, 2025

Punjab-Haryana High Court

Rajiv Kumar vs State Of Punjab on 6 February, 2025

                                      Neutral Citation No:=2025:PHHC:018148




206        IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                   CRM-M-24462-2024
                                                   Date of decision: 06.02.2025

RAJIV KUMAR
                                                                ...PETITIONER
                          V/S

STATE OF PUNJAB
                                                            ...RESPONDENT

CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present:    Mr. Veneet Sharma, Advocate
            for the petitioner.

            Mr. Rishabh Singla, AAG, Punjab.
                  ****

HARPREET SINGH BRAR,
               BRAR J. (ORAL)

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

quashing of order dated 30.11.2019 (Annexure P
P-4) passed by the learned

Judicial Magistrate Ist Class, Amritsar in a case bearing COMI No.282/2015

titled as ‘Pardeep Kumar vs. Rajiv Kumar and others‘ whereby the petitioner

was declared as proclaimed person and the consequential FIR bearing No.240

dated 02.08.2022 registered under Section 174
174-A IPC at Police Station B-

Division, Amritsar and all consequential proceedings emanating therefrom.

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

Section 420 IPC read with Section 120-B
120 B IPC was filed against the petitioner

and co-accused,
accused, wherein the petitioner was declared as proclaimed person vide

order dated 30.11.2019.

3. Learned counsel
counsel for the petitioner submits that the impugned

order has been passed in a cryptic manner and the impugned order is liable to

be set aside on the ground that the mandate of Section 82 of Cr.P.C. has not

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been followed in its letter and spirit by the trial Court. He further submits that

conditions as laid down in Section 195 Cr.P.C. have not been followed before

the proceedings against the petitioner, which encompasses Section 174
174-A of

IPC within its purview. He further submits that in the main comp
complaint, the

offences have been compounded in view of the compromise arrived at

between the parties and the petitioner along with co
co-accused have been

acquitted of the charges.

4. Learned counsel further contends that on account of his non
non-

appearance, the trial Court declared the petitioner as proclaimed person vide

order dated 30.11.2019 (Annexure P-4)) and the intimation was further sent to

SHO concerned to facilitate him to lodge an FIR against the proclaimed

person for commission of offence under Section 174-A IPC. Hence, FIR under

Section 174-A
A was registered against the petitioner. Aggrieved thereof, the

petitioner has approached this Court by way of instant petition. In support of

his arguments, counsel for the petitioner relies upon the judgment pass
passed by

this Court in Sonu vs. State of Haryana 2021 (1) RCR (Cri.) 319 and the

judgment passed by the Gujarat High Court in Govindbhai Patel Vs. State of

Gujarat 2004 (4) RCR (Criminal) 830.

5. Per contra, learned State counsel supports 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.

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

record of the case with their able assistance and with the consent of parties, the

matter is taken up for final disposal. A perusal of the paper book reveals that

the matter has been compromised
ed between the parties amicably and the

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learned trial Court has acquitted the petitioner along with co
co-accused on the

basis of compromise.

7. Section 174-A
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
(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
174-A IPC from its

scope. The proposition
propo that Section 174-A
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
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 Nag
Nagarik Suraksha

Sanhita, 2023 which mirrors Section 195 of Cr.P.C. In its present form, thus,

Section 195 of the Cr.P.C.

                   Cr      clearly encompasses Section 174
                                                       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.

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
174 IPC.

8. As it is conclusive
c that Section 174
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 & O
Others. v. State of

Tamil Nadu, (2010) 9 SCC 567,
567 wherein the following obse
observations were

made:

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“20. Section 195(a)(i)

(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
instituted upon insufficient grounds by persons actuated by
malice, ill-will
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,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 ).

21. The test of whether there is evasion or non non-compliance of
Section 195 Criminal Procedure Code or not, is whether the facts
disclose primarily
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 Court293;
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
mis describing it or by putting a wrong label
on it.

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22. In M.S. Ahlawat v. State of Haryana & Anr., 1999(4) RCR
(Criminal)
minal) 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
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
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 convicted, though the concerned publi 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 C Code are mandatory.
Non-compliance
compliance of it would vitiate the prosecution and all other
consequential orders. The Court cannot assume the cognizance of the

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case without such complaint. In the absence of such a complaint, the
trial and conviction will be void ab
ab initio being without jurisdiction.

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 oor

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
Cr.P.C. A

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

Report or Final
inal Report.

eport. Thus, cognizance can only be taken on a written

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

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

empowered by law to perform adjudicatory functions, either individually or as

part of a body. As a result, from
rom the plain language of Section 195 of the

Cr.P.C.,, it is clear that criminal
criminal prosecution under Sections 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
Another, CRM-

41656-2023 decided on 23.08.2023; Jarnail
ail Singh @ Rana vs. State of

Punjab, CRM-M
M-48718-2019 decided on 17.04.2024 and Charanjit Singh @

Channi CRM-M
M-453-2023 pronounced on 06.12.2023
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
1 of the IPC. The proper course of action

would have been to file a written complaint before the competent jurisdictional

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court. However, instead of adhering to this legal requirement, the learned

Magistrate merely forwarded
forward a copy of its orders to the local police, directing

them to initiate proceedings under Section 174-A
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.

rovisions. 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
individual-accused and

interests off the society in promoting law and order. Such procedure must be

compatible with Article 21 of the Constitution of India i.e. it must be fair, just

and not suffer from the vice of arbitrariness or unreasonableness.

Additionally, it
i is a settled law that
at 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,
appearance, the presence of the

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

warrants, and non-bailable
non warrants or proclamation
mation 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

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reasons to indicate that the petitioner has absconded or is concealing herself

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
Heral 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
non recording of the satisfaction itself makes such order suffering

from incurable illegality. Furthermore, the learned cou
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
non-

execution of the proclamation stand vitiated.

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

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
he impugned order dated 30.11.2019 (Annexure P-4)

vide which the petitioner was declared as proclaimed person as well as FIR

No.240 dated 02.08.2022 registered under Section 174
174-A IPC at Police Station

B-Division,
Division, Amritsar and all the consequential
quential proceedings emanating

therefrom, are hereby quashed qua the petitioner.

(HARPREET
HARPREET SINGH BRAR
BRAR)
February 06, 2025
202 JUDGE
manisha

(i) Whether speaking/reasoned Yes/No

(ii) Whether reportable Yes/No

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