Delhi High Court: In the case wherein, the present petition was filed under Section 482 of the Criminal Procedure Code, 1973 (‘CrPC'), to set aside the impugned order passed by Principal District and Sessions Judge, New Delhi and impugned order passed by Metropolitan Magistrate, New Delhi, Swarana Kanta Sharma, J.*, opined that the cognizance as taken by the Metropolitan Magistrate on the basis of chargesheet was bad in law and accordingly dismissed the petition.
Background
In view of the outbreak of COVID-19 pandemic, the Government of Delhi had issued lockdown notifications and curfew orders. Further, prohibitory orders were also issued by the Commissioner of Police under Section 144 of the CrPC. Afterwards, the teams of each district, headed byDistrict Magistrates concerned, was constituted to enforce the same.
Thereafter, the complaint was forwarded to the office of Prime Minister and Chief Minister of Delhi, wherein it was alleged that an amusement park ‘Fun and Food Water Park' was open in-spite of lockdown orders issued by the authorities.
Accordingly, the District Magistrate (South-West) had directed the teams of Kapashera Sub-Division to get the water park inspected immediately and accordingly, inspection team was constituted. It was also stated that the petitioner, who was the owner of the water park, had engaged in misconduct towards the inspection team. Subsequently, the SDM and SHO concerned, and the Executive Magistrate, Kapashera, sealed the premises after arriving at the site. Thus, the FIR was registered under Sections 186, 188 and 506 of the Penal Code, 1860 (‘IPC') due to obstruction faced by public servants and violation of the lockdown orders.
Thereafter, the chargesheet was submitted before the Metropolitan Magistrate, and the cognizance of the same was taken, which was challenged before the Sessions Court by way of a revision petition. The Sessions Court had allowed the revision petition to the extent that no case under Section 506 of the IPC was made out against the accused, however, no infirmity was found in the order taking cognizance of offences under Sections 186 and 188 of the IPC. Thus, being aggrieved by the order of the Sessions Court, the petitioners filed the present petition to set aside the orders passed by both the Courts, the quashing of FIR and all subsequent criminal proceedings.
Analysis, Law, and Decision
The Court relied on P.D. Lakhani v. State of Punjab, (2008) 5 SCC 150 (‘P.D. Lakhani Case'), and C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567 and opined that for offences punishable under Section 186 and 188 of the IPC, the Court was barred from taking cognizance unless a written complaint was made as per the mandate of Section 195(1)(a)(i) of the CrPC by theindividual/authority concerned.
The Court opined that the bar under Section 195 of the CrPC existed only in relation to taking cognizance by the Courts, and not upon registration of an FIR and the investigation by the police. The Court relied on State of Punjab v. Raj Singh, (1998) 2 SCC 391, wherein it was held by the Supreme Court that the statutory power of the police to investigate cognizable offences was not barred by Section 195 of the CrPC. The Court further opined that as per mandate of Section 195 of the CrPC, there had to be a complaint in writing made by the public servant concerned to the Court so as to enable the Court concerned to take cognizance of offence under Section 188 of the IPC.
The Court took note of Gurucharan Singh Arora v. the State, 2002 SCC OnLine Del 10 and Mohan Kukreja v. State (NCT of Delhi), 2019 SCC OnLine Del 6398, and opined that the public servant concerned was obliged to file a complaint in writing before the Court concerned as per Section 195 CrPC but the same was not done in the present case.
The Court opined that there was no illegality or infirmity in getting the present FIR registered and the subsequent investigation by the police. However, the public servant concerned in the present case should have prepared a complaint under Section 195 of the CrPC containing the allegations against the petitioner and the same should have been filed before the Magistrate or the same could had been forwarded along with the chargesheet to the Court concerned. The Court further opined that, in the present case, the aforesaid course was not followed by the public servants concerned, thus, the cognizance as taken by the Metropolitan Magistrate based on chargesheet was bad in law.
Accordingly, the order passed by the Metropolitan Magistrate, Delhi taking cognizance of chargesheet was set aside by this Court.
Further, relying on P.D. Lakhani Case (supra), the Court opined that the public servant concerned would be at liberty to file an appropriate complaint as per mandate of Section 195 of the CrPC to set criminal law into motion.
The Court noted that the issue regarding non-compliance of Section 195 of the CrPC had been raised repeatedly in number of cases before this Court, and therefore, directed theauthorities concerned to issue appropriate guidelines to the District Magistrates and other public servants concerned and bring to their notice, the legal provisions and the judgments passed by this Court and the Supreme Court wherein non-filing of appropriate complaint under Section 195 of the CrPC had led to setting aside of orders taking cognizance on the basis of chargesheets.
Accordingly, the present petition and pending application was disposed of.
[Santokh Singh Chawla v. State (NCT of Delhi), 2023 SCC OnLine Del 4773, decided on 31-07-2023]
*Judgment by- Justice Swarana Kanta Sharma
For the Petitioners: Rajesh Batra, Dhruba Dhar and Rohit Chandra, Advocates;
For the Respondents: Manoj Pant, APP for the State with SI Jasbir Malik and P.S. Kapashera
