Indrawati v. State of Haryana & Anr.

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Ms. Pooja Satija, Advocate, for the petitioner. Gurdev Singh, J (oral) This petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') invoking inherent jurisdiction of this Court, has been filed by Indrawati- petitioner for quashing of FIR No. 537 dated 26.10.2003, registered under Sections 353 and 186 IPC, at Police Station Civil Lines, Rohtak and the report under Section 173 of the Code dated 2.1.2004. According to the petitioner she has been falsely implicated in the above said FIR on the basis of the false complaint made by Darshan Singh- Process Server of the Court of Civil Judge (Senior Division), Rohtak. No offence whatsoever is made out from that complaint. The FIR has been registered for the offences punishable under Sections 353 and 186 and as such Section 195 of the Code bars the Court from taking cognizance of these offences except on the written complaint of the person concerned or by superior officials. Instead of cancelling the FIR, a report has been submitted under Section 173 of the Code. It has been well settled by this Court that in view of Section 195 of the Code cognizance of the offences Crl. Misc. No. M – 2913 of 2010 (O&M) - 2- under Section 353 and 186 IPC cannot be taken by the Magistrate without any complaint by the person concerned or a superior officer. I have heard learned counsel for the petitioner. It has been submitted by learned counsel for the petitioner that it has been held by this Court in Ram Kumar Vs. State of Haryana, 1998(1) CCJ 733 that where the FIR has been registered under Section 353 and 186 of the Code, the Magistrate cannot take cognizance of those offences in the absence of complaint by public servant/public officer. According to her as held in above said ruling the FIR and the challan presented under Section 173 of the Code are liable to be quashed. A written application was made by Darshan Singh – Process Server of the office of Civil Judge (Senior Division) to the In-charge of the Police Post Sector 2, 3 and 4 Rohtak in which he narrated that on

26.10.2003 at about 9:30 AM, he went to the house of the petitioner for the service of summons. He pressed the bell and the petitioner came out, who was already known to him. He asked her to receive the summons, to which she replied that she is not Indrawati and that Indrawati is out of station. When he was telling her that she was Indrawati, her Sister Jagwanti came out from the adjoining house. Indrawati asked her sister to catch hold him and thereafter he was caught hold by her and Indrawati torn the summon after taking out the same from his pocket and during this scuffle his shirt was also torn. On the basis of complaint, the above said FIR was registered. The question to be decided is, whether the Court can take cognizance of the Crl. Misc. No. M – 2913 of 2010 (O&M) - 3- offences under Sections 186 and 353 IPC on the basis of the police report submitted under Section 173 of the Code? According to Section 195(1)(a) (i) of the Code no Court can take cognizance of the offence punishable under Section 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. The matter involved in the present petition came up for consideration before this Court in Ram Kumar's case (Supra). It has been held therein that the Magistrate cannot take congizance of the offences under Section 353 and 186 in the absence of complaint by public servant/public officer. Similar matter came up for consideration before the Hon'ble Superme Court in Pankaj Aggarwal Vs. State of Delhi 2001(4) SCALE 235, it was held therein that the provision of Section 195(1)(a)(i) does not bar of taking cognizance of the offence under Sections 332/34 IPC. It was also held therein that taking cognizance under Section 186 is bad in law and attracts the mis-chief of Section 195. In that judgment another judgment of the Hon'ble Supreme Court Durga Charan Nayak Vs. State of Orissa, AIR 1966 S.C 1775 was discussed. The provisions of Sections 353 and 186 IPC were analyised and it was held that these are two distinct offences and ingredients of the offences are also different. The contrary view taken by this Court in Bhagat Ram Vs. State of Punjab 1991(1) RCR (Crl) 192, which has also been relied by learned counsel for the petitioner, was held to be bad. Similar view as has been taken by the Hon'ble Supreme Court, Crl. Misc. No. M – 2913 of 2010 (O&M) - 4- had already been taken by this Court in Rabinder Singh Vs. State of Punjab 1995(2) RCR (Crl) 211 and Jatinder Podder Vs. Prem Nath Sharma, 1994 (3) RCR 353. It was held therein that offences under Sections 332 and 353 IPC do not come within the purview of Section 195 of the Code and for taking cognizance thereof a written complaint need not be filed by Public Officer concerned and the Magistrate can take cognizance of the offences not covered by Section 195 of the Code. Therefore, the above posed question is answered in the affirmative so far as the offence under Section 353 IPC is concerned. Once that finding is recorded there is no question of quashing the FIR or the Police report under Section 173 Cr.P.C. However, the learned Trial Court, while framing the Charge against the petitioner is to keep in view the above discussed proposition of law that the cognizance of the offence under Section 186 IPC cannot be taken without written complaint by public servant. Petition is disposed of accordingly. March 12, 2010 tripti (Gurdev Singh) Judge