Virender Sharma vs State of Himachal Pradesh and Ors.

Sandeep Sharma, J. (oral)

By way of instant petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, prayer has been made by the petitioner for quashing of Kalandra, i.e. police report under Sections 186 and 189 of the Indian Penal Code, 1860, registered at Police Station Rakkar, District Kangra, Himachal Pradesh along with consequential proceedings pending in the Court of learned Additional Chief Judicial Magistrate, Dehra, District Kangra, Himachal Pradesh.

Precisely, the facts of the case as emerge from the pleadings adduced on record by the respective parties are that on 08.12.2023, police officials had laid a Naka for checking drunken driving. Petitioner, who was driving a vehicle, was stopped and lawfully asked to undergo a breath analyser test, however he refused to undergo such test and instead, started obstructing the police officials from performing their duty. Allegedly, the petitioner got into an argument with the police officials, which continued for about ten minutes. Allegedly, the petitioner abused the police officials, falsely accused them of taking bribes, threatened them with consequences, tried to pressurize, intimidated them by referring to his own influence and by insisting that senior police officials be called to the spot. Entire incident was witnessed by independent police officials present there, whose statements came to be recorded and the entire incident was also captured on video, supported by a certificate under Section 65B of the Indian Evidence Act.

Police conducted investigation after obtaining permission under Section 155(2) Cr.P.C. and upon conclusion of the investigation, presented Kalandra in the court of learned ACJM, Dehra, which is pending adjudication. Petitioner herein has approached this Court in the instant proceedings for quashing of the Kalandra on the ground that since proceedings under Section 186 IPC were initiated against the petitioner without there being a written complaint by the public servant concerned or some other public servant to whom he is administratively subordinate, proceedings initiated against him under Section 186 IPC are liable to be quashed and set aside.

While putting in appearance on behalf of the petitioner, Mr. K.S. Gill, Advocate, specifically referred to the judgment dated 8.5.2025 passed by the Hon'ble Apex Court in Criminal Appeal No. 439 of 2018, titled as Umashankar Yadav & Anr. v. State of Uttar Pradesh Through Chief Secretary & Anr., wherein the Hon'ble Apex Court, having taken note of the explanation appended to the definition clause which provides that a police report disclosing a non-cognizable offence shall be deemed to be a complaint and the police officer shall be deemed to be the complainant, held that even then the legal embargo under Section 195 Cr.P.C. is not dispelled as the legal fiction deems the police officer and not the aggrieved public servant as the complainant.

To the contrary, Mr. Vishal Panwar, learned Additional Advocate General, while supporting the impugned action of filing Kalandra in the competent Court of law, argued that since investigation was lawfully conducted after obtaining judicial permission under Section 155(2) Cr.P.C. coupled with the fact that Kalandra was submitted by the police authorities, it cannot be said that there is non-compliance of Section 195 Cr.PC. He submitted that police first obtained permission from the learned Additional Chief Judicial Magistrate under Section 155(2) Cr.P.C. and only after getting the permission, investigated the matter, but the order passed in that regard by the learned Additional Chief Judicial Magistrate has been deliberately kept hidden from this Court by the petitioner because if this order were shown, the petitioner's entire case would fall apart. By referring to Para 7 of the reply, learned Additional Advocate General further attempted to argue that a written complaint from the concerned public servant as required before the Court can take cognizance of an offence under Section 186 IPC, is only a technical requirement relating to the manner in which cognizance is taken by the Court and does not affect the registration of the case, rather same being a curable defect can be cured at any stage.

I have heard learned counsel for the parties and gone through the record carefully.

Before ascertaining the genuineness and correctness of the submissions and counter-submissions having been made by the learned counsel for the parties vis-à-vis prayer made in the instant petition, this Court deems it necessary to discuss/elaborate the scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC (now Section 528 of BNSS).

A three-Judge Bench of the Hon’ble Apex Court in case titled State of Karnataka vs. L. Muniswamy and others 1977 (2) SCC 699, held that High Court while exercising power under Section 482 Cr.PC (now Section 528 of BNSS) is entitled to quash the proceedings, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.

Subsequently, in case titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, the Hon’ble Apex Court while elaborately discussing the scope and competence of High Court to quash criminal proceedings under Section 482 Cr.PC laid down certain principles governing the jurisdiction of High Court to exercise its power. After passing of aforesaid judgment, issue with regard to exercise of power under Section 482 Cr.PC, again came to be considered by the Hon’ble Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017) titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has been held that saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution.

The Hon’ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High Court has inherent powers under Section 482 Cr.PC., to quash the proceedings against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. In the aforesaid judgment, the Hon’ble Apex Court concluded that while exercising its inherent jurisdiction under Section 482 of the Cr.PC, Court exercising such power must be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrules the veracity of the allegations contained in the accusations leveled by the prosecution/complainant. Besides above, the Hon’ble Apex Court further held that material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

It is quite apparent from the bare perusal of aforesaid judgments passed by the Hon’ble Apex Court from time to time that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him/her due to private and personal grudge, High Court while exercising power under Section 482 Cr.PC can proceed to quash the proceedings.

Hon’ble Apex Court in case tilted Anand Kumar Mohatta and Anr. v. State (Government of NCT of Delhi) Departmetn of Home and Anr, AIR 2019 SC 210, has held that abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation and as such, the abuse of law or miscarriage of justice can be rectified by the court while exercising power under Section 482 Cr.PC (relevant paras 16 and 17). Also see Pramod Suryabhan Pawar v. The State of Maharashtra and Anr, (2019) 9 SCC 608, wherein Hon’ble Apex Court has elaborated the scope of exercise of power under Section 482 Cr.PC (now Section 528 of BNSS).

Reliance in this regard is also placed upon judgment passed by the Hon’ble Apex Court in B.N. John Vs. State of U.P., 2025 SCC OnLine SC 7, which reads as under:

Now in light of aforesaid law laid down by Hon’ble Apex Court, this Court would make an endeavour to examine and consider the prayer made in the instant petitions, vis-a-vis factual matrix of the cases.

Pursuant to notices issued in the instant proceedings, the respondent-State has filed reply, wherein facts as have been noted hereinabove have not been disputed, rather stand admitted.

Precisely, the question which needs to be determined in the case at hand is “whether cognizance of an offence under Section 186 IPC can be taken on a police report in breach of Section 195 Cr.P.C. or not”.

At this stage, it would be apt to take note of Section 195 Cr.P.C, which reads as under:

Careful perusal of the aforesaid provision of law clearly provides that no Court shall take cognizance of an offence under Section 186 IPC save and except on a complaint in writing by the aggrieved public servant or his superior.

Admittedly, in the case at hand, cognizance has been taken by the Court below of the offence under Section 186 IPC on a Kalandra, i.e. a police report, which is impermissible in law. Though it came to be argued by the learned Additional Advocate General that since Kalandra was registered by police for a non-cognizable offence (under Section 186 IPC), the police report under Section 186 IPC may be treated as a complaint in view of the explanation to Section 2(d) CrPC, however this Court is not persuaded to agree with the aforesaid submission of the learned Additional Advocate General for the reason that the explanation appended to Section 2(d), where "complaint" has been defined, provides that a police report disclosing a non-cognizable offence shall be deemed to be a complaint and the police officer shall be deemed to be the complainant, but even then, the legal embargo under Section 195 CrPC is not dispelled, as the legal fiction deems the police officer and not the aggrieved public servant as the complainant. Reliance in this regard is placed upon the judgment rendered by the Hon'ble Apex Court in Umashankar Yadav (supra), relevant paras of the same, read as under:

In the case at hand, Kalandra has been registered for the offences punishable under Sections 186 and 189 of IPC. The offence under Section 186 IPC i.e. “obstructing public servant in discharge of public functions”, would attract the bar of Section 195(1)(a) of the Cr.P.C., 1973. Though the offence under Section 189 IPC, which provides “punishment for threat of injury to public servant”, is not prescribed under Section 195(1)(a) CrPC, but the cognizance of the same cannot be taken without a written complaint since the present case forms an integral part of the same transaction to the offence under Section 186 IPC and such offence cannot be segregated for satisfaction of the provisions of Section 195(1)(a) CrPC. It appears that the offence under Section 189 IPC was inserted merely to change the label or garb of an offence under Section 186 IPC, however, in the present case, even if the offence punishable under Section 189 IPC is maintained, the allegations leveled in the Kalandra would not constitute the offence.

In order to constitute the offence punishable under the aforesaid provision of law, the necessary ingredient is "threat of injury". Section 44 IPC defines "injury", which denotes "any harm whatever illegally caused to any person, in body, mind, reputation or property." In order to constitute any threat of injury, there must be an intention to inflict injury, loss or pain. However, in the present case, the contents of the Kalandra reveal that the petitioner had hurled abuses and made baseless allegations with regard to demand of bribe, but such words would not satisfy the ingredients of the expression "threat of injury". Since merely during an altercation the accused, uttering such words will not amount to an intention to inflict injury, loss or pain, the offence under Section 189 IPC is not made out.

Having scanned the entire material adduced on record, this Court has no hesitation to conclude that, no case much less under the aforesaid provisions of law can be said to have been made against the petitioner. Since for the discussion made herein above, case of the prosecution is likely to fail in all eventualities, this Court finds the case at hand to be a fit case for exercising power under Section 482 CrPC to quash FIR as well as consequent proceedings. If prayer made in the instant petition is not accepted, petitioner would be unnecessarily subjected to ordeal of the protracted trial, which is otherwise bound to culminate in acquittal of the accused.

Consequently, in view of the aforesaid discussion as well as law taken into consideration, present petition is allowed and Kalandra, i.e. police report under Sections 186 and 189 of the Indian Penal Code, 1860, registered at Police Station Rakkar, District Kangra, Himachal Pradesh along with consequential proceedings pending in the Court of learned Additional Chief Judicial Magistrate, Dehra, District Kangra, Himachal Pradesh, is quashed and set aside qua the petitioner. The petition stands disposed of in the aforesaid terms along with all pending applications .