The requirement of a complaint in writing by the public servant concerned and the abuse of process of the court in allowing proceedings under Section 182 IPC during the pendency of a complaint on the same facts and allegations.

ARVIND SINGH SANGWAN, J.

1. Prayer in this petition is for quashing the kalendra bearing DD No.6 dated 28.03.2015 (Annexure P9) filed under Section 182 of the Indian Penal Code (in short 'IPC') and for quashing the summoning order dated 06.06.2015 (Annexure P10) along with all subsequent proceedings arising there from.

2. Brief facts of the case are that the petitioner filed a complaint to the Superintendent of Police, Karnal (Annexure P1) on 05.07.2012 with the allegations that on an earlier occasion i.e. on 09.06.2012, the son of the petitioner namely Arjun was given merciless beating and his legs were broken and he was bed ridden. It was also stated that the injuries to son of the petitioner was given by Rahul @ Mintu, Pankaj and Sukhwinder on the asking of the accused persons. It was also submitted that on 04.07.2012, the accused persons namely Norti Ram, Rajinder, etc. entered the house of the petitioner and threatened her to withdraw the case relating to her son. Thereafter, another application dated 20.06.2013 was filed, however, no action was taken. The Superintendent of Police, Karnal issued a warning (Annexure P4) on 03.12.2012 to the SHO, Police Station Kunjpura because the complaint moved by the petitioner was marked to him, however, no case was registered. Thereafter, the FIR No.268 dated 15.11.2013 was registered against the accused persons under Sections 452, 506 read with Section 34 IPC at Police Station Kunjpura, District Karnal. After registration of this FIR, Rajinder Kumar/accused gave a complaint to the Superintendent of Police, Karnal on 24.02.2014 (Annexure P5) stating therein that he is an innocent person. After a gap of 06 months again, another application was given on 04.07.2014 stating that on the date and time given in the FIR, he was not present in the village and had gone to Gurudawara at Ponta Sahib.

3. Later on, after the investigation, the police submitted a cancellation report under Section 173 of the Code of Criminal Procedure (in short 'Cr.P.C.') on 14.09.2014 observing that the accused persons were not found involved in the case. Accordingly, the SHO, Police Station Kunjpura, submitted the impugned kalendra under Section 182 IPC against the petitioner on 28.03.2015 in which the trial Court issued the notice to the petitioner vide impugned order dated 06.06.2015 (Annexure P10).

4. Counsel for the petitioner has submitted that the cancellation report submitted in FIR No.268 dated 15.11.2013 has not been accepted by the trial Court till date and the petitioner has filed a criminal complaint in the shape of a protest petition i.e. criminal case No.26 of 2015, which is pending before the trial Court along with the cancellation report and the same is stated to be fixed for recording the evidence of the complainant.

5. Counsel for the petitioner has made two fold submissions. The first submission made by counsel for the petitioner is that a report submitted under Section 182 IPC before the acceptance of the cancellation report by the trial Court is not maintainable. Secondly that since the petitioner has made a complaint before the Superintendent of Police, Karnal, therefore, the recommendation of 182 IPC proceedings by the SHO, P.S. Kunjpura who is not the same authority with whom the petitioner has filed the complaint, therefore, is not competent to submit the impugned kalendra.

6. In support of his arguments, counsel for the petitioner has relied upon the judgment “Babita vs State of Punjab and another”, 2008(4) RCR (Criminal) 516, wherein this Court has held that the complaint which was filed before the Senior Superintendent of Police whereas the kalendra was presented under the signatures of the SHO will not be maintainable as per the provisions of Section 195(1)(a) Cr.P.C. In this judgment, this Court relied upon the judgment passed by the Hon'ble Supreme Court in “Daulat Ram vs State of Punjab”, AIR 1962 Supreme Court 1206, wherein it is held as under:-

“3. The only question in this case