Rakesh Kainthla, Judge

1. The petitioner was declared a proclaimed offender in a case titled Nisha versus Rajinder Gazta for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act by learned Judicial Magistrate First Class (JMFC)-III, Shimla. The police arrested him on 6.6.2022 at 8.00 PM, He was produced before the Court. The Court remanded him to custody till 7.6.2022 and advised the registration of FIR for the commission of an offence punishable under Section 174-A of IPC. The police registered the FIR No. 24 of 2022.

2. The petitioner filed the present petition for quashing the FIR. It was asserted that the petitioner never received any notice/summon from the Court of JMFC-III, Shimla. As per the order dated 29.8.2019, the notice was not received back. The bailable warrants were issued returnable for 19.4.2019. Non- bailable warrants of arrest were issued to secure the presence of the petitioner returnable for 18.2.2020. The bailable warrants were also not served upon the petitioner. The petitioner and the complainant have entered into a compromise. Therefore, it was prayed that the present petition be allowed and the FIR be quashed.

3. A status report was filed by the State reproducing the contents of the FIR. It was asserted that the police conducted the investigation and seized the record regarding the declaration of the petitioner as a proclaimed offender. The challan was prepared and presented before learned JMFC, Chopal and is pending disposal.

4. I have heard Mr. Ashwani Dhiman, learned counsel for the petitioner and Mr. R.P. Singh, learned Deputy Advocate General for respondent No.1-State.

5. Mr. Ashwani Dhiman, learned counsel for the petitioner submitted that the petitioner is innocent and was falsely implicated. The Court had issued the proclamation care of Negi Building, Damrog Road, Solan which is not the address of the petitioner. The proper procedure for declaring the petitioner as a proclaimed offender was not adopted. Therefore, it was prayed that the present petition be allowed and FIR be quashed.

6. Mr. R.P. Singh, learned Deputy Advocate General for the respondent No.1-State submitted that the petitioner failed to appear before the Court and he was declared a proclaimed offender. There is no infirmity in the order passed by the learned Trial Court. The FIR was rightly registered. Therefore, he prayed that the present petition be dismissed.

7. I have given considerable thought to the submissions at the bar and have gone through the records carefully.

8. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 : (2023) 7 SCC 711 [LQ/SC/2023/711 ;] wherein it was observed at page 716:-

"17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 [LQ/SC/2012/789] : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] [LQ/SC/2012/789] , this Court laid down the following guiding principles : (SCC pp. 482-84, para 27)

“27. …27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not.

If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge sheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to an abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

9. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-

"26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter

XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) 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 due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” (emphasis supplied)

10. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence. It was observed:

"10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.

11. One other reason pointed out by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried."

11. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed:

12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568] [LQ/SC/2018/1616] , this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab (AIR 1960 SC 866 [LQ/SC/1960/96] ) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint.

12. Certified copies of the order sheets and uncertified copies of the warrants placed on record show that the present petitioner was described as a resident of Village and Post Office Gount, Tehsil Chopal, District Shimla, H.P. and presently posted at Junga. The record shows that notice was not received back on 29.8.2019; hence, the petitioner was ordered to be summoned by way of bailable warrants returnable on 19.11.2019. The bailable warrant was returned with the report of service; however, it does not have any bail bonds of the petitioner or his surety. The Court issued the non-bailable warrants of arrest on 19.11.2019 returnable for 18.2.2020. This non-bailable warrant of arrest was returned with the report that the petitioner was transferred to the 6th IRBN, Golar. The warrant could not be served as the petitioner was on duty. The Court ordered on 18.2.2020 that fresh NBWs returnable for 30.4.2020 be issued to the address given on the back side of the NBWs. Thereafter, the matter was not taken up due to the COVID-19 epidemic. The fresh NBWs were ordered to be issued returnable for 8.12.2020. The NBWs were returned with the report that the petitioner was posted in Police Station, Parwanoo and MHC Police Station, Parwanoo informed that the petitioner was on leave. Again, non-bailable warrants of arrest were issued returnable for 10.11.2021. These were returned with the report that the petitioner was transferred to 6th IRBN, Dhaulakuan. The wife of the petitioner made a report that the petitioner had gone to Noida and she would inform him, hence the non-bailable warrants of arrest were returned unserved. The Court ordered that a proclamation be issued on the address, “care of Negi Building, Damrog Road, District Solan, H.P.”, returnable for 26.12.2021. The proclamation was not returned and it was ordered to be issued afresh for 14.3.2022. On 14.3.2022, the statement of the serving constable was recorded and the petitioner was declared a proclaimed offender.

13. A perusal of the record clearly shows that the petitioner was never stated to be the resident of Negi Building, Damrog Road, Solan in any of the bailable/non-bailable warrants of arrest and it is not known from where this address was mentioned by the learned Trial Court. The proclamation could have been issued at the permanent address or the address where the petitioner was serving. The proclamation made at a place which had no connection with the petitioner is not valid.

14. A reference was made to Section 82(3) to submit that a statement made by the Court issuing the proclamation that it was duly published is conclusive evidence that the requirement of the Section had been complied with. It was submitted based on this Section that once the Court has declared that the proclamation was duly published, no evidence to the contrary can be led. There is no dispute with this proposition of law. In the present case, the question is not whether the proclamation was duly published or not but whether the proclamation was issued at the proper address or not. Section 82(2) provides that the proclamation has to be read in the place of the town or village where the person ordinarily resides. It has to be affixed at the house of the homestead where the person ordinarily resides. Since in the present case, there is no evidence that the petitioner ever resided at Solan; therefore, the requirement under Section 82(2) has not been satisfied and the proclamation cannot be said to be validly made. The proclamation could have been affixed at Chopal or Parwanoo, where the petitioner was residing or posted but it was published at neither of these places. Hence, the learned Trial Court erred in declaring the petitioner a proclaimed offender and ordering the registration of an FIR against him.

15. Section 195(1)(a)(i) of Cr.P.C. provides that no Court shall take cognizance of any offence punishable under Sections 172 to 188, both inclusive of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other person to whom he is administratively subordinate. Section 21 of the IPC reads that public servant includes every Judge and the person empowered by law to discharge any adjudicatory function. Therefore, it is apparent from the combined reading of these provisions that cognizance of the commission of an offence punishable under Sections 172 to 188 cannot be taken except on the complaint in writing by the Court.

16. Delhi High Court held in Maneesh Goomer v. State, 2012 SCC OnLine Del 66 that the provisions of Section 195 will not apply to Section 174-A because the legislature did not amend Section 195 to include Section 174A after inserting Section 174A w.e.f. 23.6.2006. It was observed:-

"9. As regards the next contention of the Petitioner that for prosecution under Section 174-A IPC no cognizance can be taken on a charge sheet but on a complaint under Section 195 Cr.P.C., it may be noted that Section 174-A IPC was introduced in the Code with effect from 23rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended to include Section 174-A IPC which was brought into the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under Chapter X of the Criminal Procedure Code are noncognizable, offences punishable under Section 174-A IPC are cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner."

17. With due respect, it is difficult to agree with this line of reasoning. The legislature had specifically stated that no Court shall take cognizance of the commission of an offence punishable under Sections 172 to 188 both inclusive and when Section 174-A was being added after Section 174, it was clear that the same would fall within Sections 172 to 188 both inclusive. The amendment was required if the legislature had intended to take the offence out of the purview of Section 195(1)(a) because by putting Section 174-A between Sections 172 to 188, it was automatically included within these Sections.

18. Punjab & Haryana High Court held in Pradeep Kumar vs. State of Punjab 2023 PHHC 110479 [LQ/PunjHC/2023/8595] that the police have no jurisdiction to register the FIR and the complaint has to be filed by the Court that had declared the person as a proclaimed offender. It was observed:-

"12.5. From the plain language of Section 195 of the Code of Criminal Procedure, it is obvious that the offence under Section 174-A of IPC falls within its scope. Its cognizance cannot be taken by any Court except on the complaint in writing of the public servant/Judge concerned or of some other public servant/Judge to whom he is administratively subordinate. This being the position, after declaring the petitioner a proclaimed person, if at all the learned Magistrate had desired and decided to proceed against the petitioner for an offence under Section 174-A of IPC, the prescribed course for him was to institute a complaint in writing in the competent jurisdictional Court. Instead, the learned trial Court adopted a short but wrong cut and just sent a copy of his orders to the local police for initiation of proceedings under Section 174-A against the petitioner (obviously by registration of an FIR).

12.6. In my opinion, the orders passed and sent to the local police by the learned Magistrate directing for initiation of proceedings under Section 174-A against the petitioner and the impugned FIR, Annexure P-1, registered thereupon at Police Station, City, Rajpura are in violation of the relevant provisions of Section 195 of the Code, under which a criminal complainant had to be filed by the learned Magistrate in the jurisdictional Court. Orders dated 31.08.2019 and 13.09.2019 reproduced above directing initiation of proceedings under Section 174-A against the petitioner (obviously by registration of an FIR) are not legally sustainable. The impugned FIR, therefore, is liable to be quashed on that short ground alone."

19. The Punjab & Haryana High Court also differed from the reasoning of the Delhi High Court in Maneesh Goomer (supra) as under:-

"12.8 The reasoning given in Maneesh Goomer’s case(supra)is that Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC, as the Legislature was conscious of the fact that the offence (under Section 174-A IPC) is cognizable. It may be noted here that Section 188 of IPC is also in Chapter X of IPC and is a cognizable offence. And yet, it was and is still specifically covered by the provisions of Section 195 of the Code of Criminal Procedure. On the logic of Maneesh Goomer’s case (supra), in my opinion, Section 174-A IPC cannot be held excluded from the purview of Section 195 Cr.P.C. merely because it is cognizable.

12.9 Having given my thought further on the reasoning given in Maneesh Goomer’s case (supra), with the utmost respect, I have a different take on the same. Notably, the introduction of Section 174-A into the IPC was accompanied by a corresponding amendment in Schedule 1 of the Cr.P.C. This amendment classified the aforementioned offence as cognizable. However, Section 195 of the Cr.P.C. was consciously not amended correspondingly to exclude Section 174-A from its ambit, as is now being proposed through Section 215 of ‘The Bhartiya Nagrik Suraksha Sanhita 2023 Bill’. Said Bill currently under consideration of the legislature. The omission of Section 174-A from the scope of Section 195 of the Cr. P.C. cannot, therefore, be also characterized as a mere oversight, especially in light of the deliberate amendment in Schedule-1, while Section 195 ibid was conspicuously left untouched.

12.13. Having opined as above, I may also hasten to add here that the non-inclusion of Section 174-A of IPC into the ambit of Section 195 of Cr. P.C. in its current form, does though create some incongruity/legal inconsistency. To elucidate, let us consider an illustrative scenario: Imagine an individual accused of an offence falling under Section 174-A of the IPC. Being an offence classified as cognizable, the police have the authority to arrest the accused without a warrant. However, Section 195 of the Cr.P.C. bars any Court from taking its cognizance except on the complaint in writing made by the Court/Public servant concerned. This creates an anomalous situation where an individual who is accused under Section 174-A IPC could potentially be arrested without a warrant, yet the legal requirement for his prosecution for such an offence is by way of filing a complaint under Section 195 of the Cr.P.C.

12.14. The incongruity, if any, in the legal framework rather warrants a closer examination of legislative intent. The statutory insistence ibid, of filing of a complaint by the public servant/court concerned, is in tune with a fundamental right to personal liberty as enshrined under Article 21 of the Constitution of India. The same underscores the importance of aligning legal provisions to ensure that the personal liberty of an individual is given paramount consideration, given that an individual who is declared as a proclaimed person or offender, as the case may be, is a mere suspect/under trial and not yet a declared culprit. He is also equally entitled to procedural protection in the exercise of his fundamental right under Article 21. The same has to be thus safeguarded. Justice has to be administered even to a suspect/under trial without any ambiguity or drawing inferences against him from legislative ambiguities. Thus the incongruity ought not to result in an asymmetry of rights and due process. Such an inconsistency underscores the critical need for clarity in legislation and ascertaining its intent through judicial interpretation in matters affecting personal liberty and justice.

12.15. Nevertheless, even if we were to entertain the notion that the non-exclusion of Section 174-A of IPC from the purview of Section 195 Cr.P.C. was by an inadvertent oversight/omission in the legislation, it is crucial to recognize that any benefit arising from such an inadvertence or oversight would accrue to the advantage of the accused, rather than the prosecution. In the realm of criminal jurisprudence, matters pertaining to personal liberty hold a paramount position. Such matters pertaining to personal liberty should never be predicated upon inferences drawn against the accused from presumed intentions and/or inadvertent omissions on the part of the legislature. The sanctity of personal liberty demands nothing less than clear and categorical legislative provisions ensuring that justice is not compromised by inferences drawn against the accused from legislative ambiguity or oversights."

12.16. In conclusion, it is held that Section 195 of the Code of Criminal Procedure (CrPC), in its present form, encompasses Section 174-A of the Indian Penal Code (IPC) within its purview.

20. Therefore, no FIR can be registered by the police for the commission of an offence punishable under Section 174-A of IPC and the continuation of the proceedings based on the FIR will be an exercise in futility, which cannot be permitted.

21. Consequently, the present petition is allowed and the FIR No. 24 of 2022, dated 7.6.2022, Police Station Kupvi, District Shimla, H.P. and consequent proceedings arising out of the same are ordered to be quashed.