Bhagat Ram vs State of Punjab

Jai Singh Sekhon, J.

Bhagat Ram, petitioner, while working as contractor under some contract obtained from the Punjab Agricultural Marketing Board, Bathinda, is alleged to have misappropriated certain quantity of cement entrusted to him by the Department for the construction of a Kisan Bhawan at village Talwandi Sabo. It is further averred that Bhagat Ram had assaulted and caused injuries to Shri Nirandar Singh, Assistant Engineer of the Marketing Board, when the latter objected to the using of substandard mixture of cement in the above referred construction. Under these circumstances a case under Sec. 406, 186 and 332 read with Sec. 34 of the Indian Penal Code was registered against Bhagat Ram, petitioner, and one Naresh Kumar.

The petitioner in this petition filed under Section 481 of the Code of Criminal Procedure seeks the quashment of the above referred complaint and the proceedings resulting therefrom including the summoning order and the order (copy Annexure P2) of the Judicial Magistrate framing charge against the petitioner for the above referred offences, interalia on the ground that under Section 195(1) of the Code of Criminal Procedure, cognizance of the offence cannot be taken except on the written complaint of the public officer concerned and that the first information report lodged by Shri Nirandar Singh cannot be said to be a direct complaint filed by him in the Court. It is also maintained that the offence under Section 332, Indian Penal Code, is only an aggravated form of offence under Section 186, Indian Penal Code and that the provisions of Section 195 of the Code of Criminal Procedure also bar the jurisdiction of the Court from taking cognizance on similar round. It is also maintained that it is a case of sale of cement and not a case of entrustment of cement to the contractor.

In the return filed by Shri Balbir Singh, Inspector of Police, Police Station Rama Mandi, the averments of the petitioner are controverted besides, maintaining that the offence under Section 332 Indian Penal Code, is altogether a different offence than the one under Section 186 of the Indian Penal Code.

I have heard the learned counsel for the parties besides perusing the record.

The provisions of Section 195(1) of the Code of Criminal Procedure read as under :

(1) No Court shall take cognizance

(a) (i) of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court, or

(ii) of any offence described in Section 483, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit or the abetment of, any offence specified in subclause (i) or subclause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate".

A bare glance through the same leaves no doubt that the jurisdiction of the Court to take cognizance of the offence under Section 186 is barred except on the complaint in writing of the Public Officer concerned or of some other public servant to whom he is administratively subordinate. In the case in hand, admittedly, Shri Nirandar Singh had not filed any complaint in writing to the Court concerned but simply had lodged a first information report at the Police Station which had resulted in the prosecution of the petitioner ultimately and framing the charge for the above referred offences. In Jit Kumar v. The State of Punjab, Cr. Misc No. 5433M of 1986, Mr. Justice Pritpal Singh (as he then was) disposed of on November 6, 1986, had observed that filing of challan after due investigation by the police would not amount to filing a complaint in writing by the public servant concerned. Thus the Magistrate concerned should not have taken cognizance of the offence under Section 186 of the Indian Penal Code.

The ingredients of the offence under Section 186 of the Indian Penal Code are whosoever voluntarily obstructs any public servant in the discharge of his public functions shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. The ingredients of the offence under Section 332 of the Indian Penal Code are, whosoever voluntarily deters a public servant from performing his duty with intent to prevent or deters that person from performing his duty and voluntarily causes hurt to deter public servant from discharging his duty as such public servant, shall be punished with imprisonment of either description for a term which may extent to three years or with fine or with both. Thus in a way it can be well said that the offence under Section 332 Indian Penal Code, is an aggravated form of offence under Section 186, Indian Penal Code. Anyhow since both these offences under Sections 186 and 332 arise out of the same transaction, it can be well said that the trial Court was not competent to take cognizance of the offence under Section 332 also as by taking cognizance of that, the trial Court had obliquely tried to evade the mandate of the Legislature enshrined under Section 195(1) of the Code of Criminal Procedure, regarding the offence u/s 186 IPC, also.

It is not disputed that the Department sold cement to the contractor at the rate of Rs. 53/ per bag as given in the contract rate Annexure P3. Thus it cannot be said that the cement was entrusted to the contractor for construction of the building and he had misappropriated the same. It may amount to civil wrong involving breach of terms of the contract between the parties and cannot be said to be a breach of trust punishable under Section 406 of the Indian Penal Code. The apex Court in State of Gujarat v. Jaswantlal Nathalal, 1988 Cr. LJ 803 had observed that it is not a case of criminal breach of trust.

Consequently for the reasons recorded above, the impugned first information report and the proceedings resulting therefrom including the order of framing charges against the petitioner stand quashed by accepting this petition.