Kulvender Singh Kohli v. NCT of Delhi

CASE NOTE: Kulvender Singh Kohli v. NCT of Delhi

2022 SCC OnLine Del 1776

Ayush Kishore

KiiT School of Law,

Kalinga Institue of Technology,

Deemed to be University, Bhubaneshwar

The case is related to Section 160 of the CrPC, the section reads as:-

Section 160, Criminal Procedure Code, 1973 (Act 2 of 1974)
Police officer’s power to require attendance of witnesses

Case Details

Equivalent Citations: (2022 SCC OnLine Del 1776; 2022 Cri LJ 3550)

Decided on: 10th June, 2022

At the Hon’ble High Court of Delhi at New Delhi

Head by: Honb’le Bench (Single judge bench)

The Hon’ble Mr. Justice Chandra Dhari Singh

Table of cases

VN Pachimuthu v. The Superintended of Police; 2012 SCC OnLine Mad 1020
Ravinder Singh v. State; 2010 SCC OnLine Del 4783
Rajbikram Deep Singh v. State of Punjab; 2022 SCC OnLine P&H 1897
Samaj Pravivartan Samudaya v. State of Karnataka; (2012) 7 SCC 407; (2012) 3 SCC (Cri) 365
Gopal Das Sindhi v. State of Assam; AIR 1961 SC 986; (1961) 2 Cri LJ 39
Mohd. Tousuf v. Afaq Jahan; (2006) 1 SCC 627; (2006) 1 SCC (Cri) 460; AIR 2006 SC 705
Mona Panwar v. High Court of Judicature of Allahabad; (2011) 3 SCC 496; (2011) 1 SCC (Cri) 1181
Hemant Dhasmana v. CBI; (2001) 8 SCC 536; 2001 SCC (Cri) 1280
Lalita Kumari v. Govt. of U.P.; (2014) 2 SCC 1; (2014) 1 SCC (Cri) 524
Charan Singh v. State of Maharashtra; (2021) 5 SCC 469; (2021) 2 SCC (Cri) 617; (2021) 2 SCC (L&S) 52
Directorate of Enforcement v. State of WB; 2021 SCC OnLine Del 5603
Anant Brahmachari v. Union of India; 2012 SCC OnLine Del 1680

Facts of the case

The petitioner, Kulvender Singh Kohli (Petitioner) was an advocate and was running a law firm, named KS Kohli and Associates. He is also the founder and non-executive chairman of Frankfin Aviation Services Pvt. Ltd. The Petitioner received a summons from Deputy Caption Police, Cyber Cell, Phase 8, District Sahibzada Ajit Singh Nagar, Punjab thrice, under Section 160, CrPC. The petitioner was alleged in a piece of information made by Rajbikramdeep Singh and his son Munjanpreet Singh. The information was registered under sections 153-A, 501, 504, 505, 295A, 506 of the Indian Penal Code (Act 45 of 1860) and section 67 of the Information Technology Act, 2000. Hence, the petitioner knocked on the door of the Delhi High Court, through a criminal writ petitioner, under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 (Act 2 of 1974).

Legislations involved

Article 226, Constitution of India- Power of High Courts to issue certain writs

Section 482, CrPC- Saving of inherent powers of High Court

153A, IPC- Wantonly giving provocation with intent to cause a riot—if rioting be committed; if not committed
501, IPC- Printing or engraving matter known to be defamatory
504, IPC- Intentional insult with intent to provoke breach of the peace
505, IPC- Statements conducing to public mischief
295A, IPC- Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs
506, IPC- Punishment for criminal intimidation
67, IT Act- Punishment for publishing or transmitting obscene material in electronic form

Issues raised

Whether the office of Deputy Caption, Cyber Cell, Phase 8, District SAS Nagar, Punjab, issued impugned notices at the right stage?
Whether the police officer has the authority to issue a summons, beyond the jurisdiction of his office or police station, under S. 160. CrPC?

Judgment

The Supreme Court of India quashed all three summons issued by respondent Deputy Caption Police, Cyber Cell, Phase 8, District SAS Nagar, Punjab. The summons dated 25-01-2022, 25-02-2022, and 09-03-2023, which were issued to the petitioner Mr. Kulvendr Kohli.

Reasoning

The petitioner alleged that he was a permanent resident of New Delhi. The summon notice revealed that it was issued to the correspondence address of the petitioner at Gurugram, Haryana. Both addresses were outside/beyond the jurisdiction of the respondent. Section 160, CrPC itself provides that the summon can be issued ‘within the limits of his own or adjoining police station’. Hence, going beyond the jurisdiction is an irregularity.

The second reasoning implied was that the respondent did not issue the summons at the right stage, as it was to be after the registration of the FIR, to issue of notice was lacking.

Analysis

This case is a simple case, an open and shut case, related to section 160 of the Criminal Procedural Code. Just, the mere reading of the provision may answer the legal issues which arose in the aforesaid case. But, the judgment ran through fourteen pages, which explaining the whole implication of the case, in various instances, including the facts, the legal reasoning, the provision the ratio decidendi and obiter dicta of the judgment.

While the provision itself prescribes that the police officer can summon any person within the limits of his police station, now if he wishes to summon any person, outside his jurisdiction, for the purpose of investigation, he may either requisite it to the the concerned police station or even may ask from permission from his senior officer. For instance, a summon is required to be issued outside the district, the permission of the Superintendent of Police or Deputy Commissioner of police, as the case may be, is required or if out of the state, the permission of the Director General of Police or Commissioner of Police, as the case may be is required. Herein, whether the required formalities of the permissions were taken into consideration by the police department, is not discussed. Although, this was not a regular police force, but rather a special team of police officers, deputed for investigations related to cyber crimes.

Secondly, the summon was issued with a lack of a written First Information Report. The summon was issued thrice. One more ratio, delivered by the Hon’ble was it was the stage at which the summons were issued was not a right stage. It should be after the lodging of the FIR. However, the provision is silent on this issue. There is no mention in the statute of what time should the summon should be issued. There is no such concrete mention in the provision. But, it has been interpreted by the Hon’ble Supreme Court in various judgments that any summon or even if a statement is to be recorded under Section 161[1] should be only after an FIR has been lodged. The FIR is such a thing, which triggers the Criminal Procedure. Complaint given to a Judicial Magistrate under Section 190, is also the way that triggers the criminal procedure. Therefore, in these two ways, the criminal procedure is triggered. The FIR paves the way for the police to begin with the investigation, therefore if there is a lack of information to the police, the investigation is not possible. The summon is an important aspect or it can be treated as a way of investigation. Therefore, the Hon’ble Court has given a very wide and descriptive interpretation of Section summons under section 160.

[1] Examination of witnesses by police.—(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe on this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

2[Provided that statement made under this sub-section may also be recorded by audio-video electronic means:]

3[Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, 4[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.]

Decision

The Hon’ble apex court observed the decision that all three summons, issued by the respondent Deputy Caption Police, Cyber Cell, Phase 8, District SAS Nagar, Punjab to the petitioner Mr Kulvendr Kohli liable to be set aside for the reason of being issued in contravention to the provisions of CrPC.

Accordingly, the instant petition was allowed and summons dated 25-01-2022, 25-02-2022, and 09-03-2022, issued by the respondent Deputy Caption Police, Cyber Cell, Phase 8, District SAS Nagar, Punjab in the investigation of application no. /10059/S/SSP, dated 21-12-2021, to the petitioner Mr Kulvendr Kohli was hereby quashed, along with any other notices issued prior to the time concerning the FIR, if any.

The pending applications also stand to be disposed of, if any.