JUDGMENT Kuldip Chand Sood, J. (Oral) :- Surinder Singh Chauhan, an advocate, has approached this Court, in its writ jurisdiction under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, for the quashing of the proceedings initiated against him by the learned judicial Magistrate 1st Class, Kasauli at Solan in Criminal Case No.44/2 of 2001 for an offence punishable under Section 186 of the Indian Penal Code. 2. It appears, election to the Municipal Council, Parwanoo, were held on 20th December, 2000. Petitioner was one of the candidates from Ward No.9. Mr. Ram Sarup Dutt, Lecturer, Senior Secondary School Barotiwala, District Solan, was the Presiding Officer in the polling booth for Ward No.9 which was located in the office of NJPC. 3. The allegation against the petitioner is: At about 10.00 AM petitioner entered the polling booth and asked for serial number of a ballot paper. Shri Ram Sarup, Presiding Officer refused to give him the number of ballot paper on which the petitioner threatened the Presiding Officer saying that he was a lawyer of the High Court and that he will approach the Bar Association and get the election cancelled It is the further case of the prosecution that at that time he was carrying a mobile phone and a camera with him. The Presiding Officer of the polling booth objected to his bringing the camera and mobile phone inside the polling booth. The petitioner told the Presiding Officer that he being candidate is entitled to bring the camera and take the photographs. He also told the Presiding Officer that he is a lawyer and knows his law and threatened him that he would make them stand in the High Court. He also threatened the Presiding Officer and the Police officer that "he would see them". Thus, according to the complaint he disobeyed the orders of the Presiding Officer and the Police Officer present there. It is the further case of the complainant that according to the election pamphlet taking of photographs inside the polling booth, without the permission was prohibited. The petitioner did not listen to the Presiding Officer. Thereafter, Assistant Collector, Parwanoo, came and took away the petitioner from the polling booth. The Presiding Officer of the booth recorded in his diary that the petitioner Mr. The petitioner did not listen to the Presiding Officer. Thereafter, Assistant Collector, Parwanoo, came and took away the petitioner from the polling booth. The Presiding Officer of the booth recorded in his diary that the petitioner Mr. Surinder Chauhan took serial number of counter-foil and brought the mobile phone inside the polling booth and also took photographs inside the booth. 4. On 15th December, 2001 Sub Inspector Brij Mohan filed a complaint before the learned Judicial Magistrate 1st Class, Kasauli at Solan for an offence punishable under Section 186 of the Indian Penal Code alleging that the petitioner was asked about he having brought the mobile phone and having taken the photographs by the Presiding Officer and ASI Rattan Kumar, on which he threatened both of them that he is a lawyer and he would see them and would manage a strike in the High Court and Solan Courts and also told them he will not hand over the camera. 5. On the receipt of this complaint, the learned Magistrate summoned the petitioner to appear in the Court as an accused on 25th June, 2001. On 25th June, 2001 was a holiday and therefore, the accused was directed to be summoned for 21st September, 2001 on 26th June, 2001. 6. I have heard Mr. I.D. Bali, learned senior Advocate, instructed by Mr. Verinder K. Verma, Advocate, for the petitioner and Mr. Sandeep Kaushik, learned Assistant Advocate General for the respondent. 7. The contention of Mr. Bali is two folds : (a) even if the entire case of the prosecution is admitted to be correct, no case against the petitioner is made out for proceedings against him under Section 186 of the Indian Penal Code; (b) the police had taken a cognizance of the offence which was not permissible under the law and accused could not have been prosecuted, save and except, on the complaint in writing by the Presiding Officer of the booth, Shri Ram Sarup. 8. So far his first contention is concerned, Section 186 of the Indian Penal Code is a punitive provision which provides for the punishment to a person who voluntarily obstructs any public servant in the discharge of his public functions with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees. The submission of Mr. The submission of Mr. Bali is that it is neither the allegation of the Presiding Officer nor there is any material on record to show that the petitioner caused any obstruction in the discharge of the public functions of either the Presiding Officer or the concerned Police officer much-less voluntarily obstructed anyone of them. He stresses that the allegation against the petitioner is that he entered with a camera and mobile phone and when objected he protested and said that he has right to take photographs in the booth as he is a candidate and that he is an advocate and knows his law. He is further supposed to have threatened the Presiding Officer and the concerned Police Officer that he being an advocate would see them in the High Court and would caused strike in the High Court and the Courts at Solan. There is no allegation that he used any physical force or caused any obstruction in the polling process It is also not the case of the complainant, contends Mr. Bali, that the petitioner threatened the Presiding Officer of the polling booth in a manner so as to prevent him from carrying out his duty which may even remotely amount to obstruction. Section 186 of the Code reads: "186. Obstructing public servant in discharge of public functions. Whoever 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". 9. It may be seen that in order to make out an offence under Section 186 of the Indian Penal Code, it must be shown: (a) the accused voluntarily obsructed a public servant; (b) such obstruction was caused in the discharge of public functions of such public servant. 10. The terms "voluntarily" contemplate the commission of some overt act; mere passive conduct of a person would not amount to causing obstruction. In the present case, it is not the case of the prosecution nor that of the Presiding Officer in a statement made to the Police Officer that the petitioner caused any obstruction in the poll process or by the action of the accused poll process was impeded. In the present case, it is not the case of the prosecution nor that of the Presiding Officer in a statement made to the Police Officer that the petitioner caused any obstruction in the poll process or by the action of the accused poll process was impeded. The grievance of the Presiding Officer of the polling booth as also the Police Officer was that when petitioner was asked about he having brought the camera and the mobile phone in the polling booth he stated that he being a candidate, can do so and that he knew his law being an advocate and that if any action is taken against him he would make them stand in the High Court and would cause strike in the High Court and. the District courts at Solan. 11. In my view, it cannot be said, on the allegations made in the complaint and in the statement of the Presiding Officer of the polling booth, that accused voluntarily obstructed either the Presiding Officer of the polling booth or the Police Officer, in the discharge of their public functions. The allegations against the petitioner is that he brought the camera and mobile phone inside the! polling booth and took photographs in violaion to the instructions contained in ¥ some pamphlet, but then accused is not sought to be prosecuted for the disobedience or violation of any instructions under the election law. It is true that the expression "obstruction" does not necessarily mean "physical obstruction". In my view any action accompanied by either show of force or threat- or having the effect of preventing the public servant from carrying out his duty would constitute "obstruction" for the purpose of Section 186 of the Indian Penal Code. In the present case, it is admitted position that neither the Presiding Officer nor the Police Officer were obstructed in ay manner in the discharge of their duties. There was no threat of force by the petitioner. It is not the case of the prosecution that accused either refused to handover the camera to them or otherwise obstructed the Presiding Officer of the polling booth or the Police Officer. Mere protesting or using intemperate language without any overt Act will not be an offence punishable under Section 186 of the Indian Penal Code. It is not the case of the prosecution that accused either refused to handover the camera to them or otherwise obstructed the Presiding Officer of the polling booth or the Police Officer. Mere protesting or using intemperate language without any overt Act will not be an offence punishable under Section 186 of the Indian Penal Code. Passive conduct, without resisting a public servant in the discharge of his functions or duties, will not amount to voluntary obstructing a public servant within the meaning of Section 186. 12. There is no allegation against the petitioner that he resisted the process of law. In-fact, he was taken away by the Assistant Collector who intervened in the matter. 13. In the facts and circumstances of this, as disclosed in the complaint fled by the police and the statement of the Presiding Officer, no offence punishable under Section 186 of the Indian Penal Code is made out even if the entire allegations remain un-rebutted. 14. So far the second contention of Mr. Bali is concerned. Section 195 of the Code of Criminal Procedure provides that no court can take cognizance of any offence punishable under Section 186 of the Indian Penal Code, save and except, on a complaint in writing of a public servant concerned or of some other public servant to whom such public servant is administratively subordinate. Thus, a complaint by a public servant obstructed is necessary for prosecuting an offence punishable under Section 186 of the Indian Penal Code. 15. Section 195 of the Code of Criminal Procedure reads : "195. Thus, a complaint by a public servant obstructed is necessary for prosecuting an offence punishable under Section 186 of the Indian Penal Code. 15. Section 195 of the Code of Criminal Procedure reads : "195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence.- (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 abatement 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 proceeding in any "Court, or (ii) of any offence described in Section 463, 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 abatement of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (I) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (I) the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (I), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appelable decrees or sentences of such former Court or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil Court is situate: Provided that - (a) where appeals lie to more than one court, the Appellate court of inferior jurisdiction shall be the Court to which such court shall be deemed to be subordinate; (b) where appeals lie to a civil and also to a Revenue court, such court shall be deemed to be subordinate to the Civil or Revenue court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. 16. Bare reading of Section 195 shows that this provision prohibits the court from taking cognizance of certain offences save and except on a complaint made by a particular public servant who has been obstructed or an authority to whom such public servant is subordinate. 17. In Kamla Prashad Singh v. Hari Prashad Singh 1968 Cr. L.J. 86, the Apex Court reiterated that the expression "no court shall take cognizance" shows that there is an absolute bar against the court taking cognizance of the case except in the manner provided by Section 195 of the Code. Thus, if the court entertains the case, covered by Section 195 of the Code, without a complaint of a person obstructed then such cognizance would be without jurisdiction. 18. In the present case, even if it is assumed though it is not the case of the prosecution, that Mr. Ram Sarup Dutt, Presiding Officer of the polling booth was obstructed; the prosecution of the petitioner on the report of the Police Officer was incompetent. 18. In the present case, even if it is assumed though it is not the case of the prosecution, that Mr. Ram Sarup Dutt, Presiding Officer of the polling booth was obstructed; the prosecution of the petitioner on the report of the Police Officer was incompetent. The Magistrate had no jurisdiction to take the cognizance of the offence under Section 186 of the Indian Penal Code inasmuch as there is a statutory bar against the court taking cognizance of an offence punishable under Section 186 of the Indian Penal Code except as contemplated under Section 195 of the Code. In other words the cognizance could have been taken by the Magistrate if Ram Sarup had filed a complaint before the Court. It is sub Inspector Brij Mohan who filed this complaint on which the learned Magistrate issued process against the petitioner. 19. Mr. Sandeep Kaushik, learned Assistant Advocate General, submits that it is not only the Presiding Officer of the booth but also ASI Rattan Kumar who was obstructed and therefore, the report filed by the Sub Inspector Brij Mohan, Station House officer, Police Station, Parwanoo, to whom ASI Rattan Kumar is subordinate was valid and in accordance with the Section 195 of the Code of Criminal Procedure. The contention is mis-placed and cannot be accepts. According to the allegation in the police report. ASI Rattan Kumar was standing outside the polling booth to maintain law and order It is only when he was called by Ram Sarup Dutt, Presiding Officer, he entered the polling booth. ASI Rattan Kumar was told that the petitioner, a candidate from Ward No.9, has brought a camera and mobile phone inside the booth and that he has threatened him and had also taken photographs, on which ASI Rattan Kumar made inquiries from the petitioner and informed that under the instructions in the election pamphlet the camera and mobile phone could not be brought inside the booth on which the petitioner is supposed to have told ASI Rattan Kumar that he is a lawyer and would see him and he further told him that he would get strike caused in the High Court and in the Solan courts. Thus, by no stretch it can be said that ASI Rattan Kumar was obsructed in the discharge of his public duties. It was not his function to conduct the polling in the polling booth. Thus, by no stretch it can be said that ASI Rattan Kumar was obsructed in the discharge of his public duties. It was not his function to conduct the polling in the polling booth. It is the own case of the prosecution that ASI Rattan Kumar was standing outside the polling booth to maintain law and order. The petitioner, admittedly, did not resist the process of law. 20. In the facts and circumstances, the learned trial Magistrate could not have taken cognizance of the offence punishable under Section 186 of the Indian Penal Code on a complaint filed by the Station House Officer, Police Station Parwanoo. Such a cognizance could only be taken on a written complaint filed by Shri Ram Sarup Dutt, Presiding Officer of the polling booth. 21. Mr. Kaushik, faced with the situation, submitted that this court will not interfere, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure and under Article 227 of the Constitution of India, to quash the proceedings particularly when the learned trial Magistrate has summoned the petitioner. 22. It is now well settled that the High Court in exercise of its inherent powers and powers under Article 227 of the Constitution of India for quashing the criminal proceedings has to see whether continuation of criminal proceedings will be a total abuse of the process of the Court The Court, indeed, must act with the circumspection and be cautious and careful in quashing the criminal proceedings. 23. Nevertheless, as pointed out in Medchi Chemicals & Pharma (P) Ltd., v. Biological E.Lld & Ors. 2000 3 SCC 269, the Court will not hesitate to quash the proceedings if the allegations do not constitute any offence as alleged- The question of jurisdiction of the High Court for quashing the criminal proceedings under Section 482 of the Code of Criminal Proceedings and Article 227 of the constitution of India is no longer res integra. It is true that jurisdiction under Section 482 of the Code has to be exercised by he High Court with great care, caution and circumspection. It is true that jurisdiction under Section 482 of the Code has to be exercised by he High Court with great care, caution and circumspection. At the same time, as observed in State of Karnataka v. L. Muniswamy 1977 2 SCC-699, the High Court would be justified in quashing the proceedings if it comes to the conclusion that allowing the proceedings to be continued would be an abuse of the process of the court and the ends of justice require the quashing of proceedings. 24. In State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp. (1) SCC 335, the Apex Court after digesting the case law up to date observed that inherent powers under Section 482 of the Code could be exercised to prevent abuse of the process of court or otherwise to secure the ends of justice. The Apex Court observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give list of myriad kinds of cases wherein such power should be exercised. However in cases : "(a) 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. (b) 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 offfence and make out a case against the accused, powers of quashing the criminal proceedings may be exercised. 25. The Apex Court in Pepsi Foods Ltd & Anr. v. Special Judicial Magistrate & Ors. 1998 (5) SCC 749, reiterating the dicta in Bhajan Lals case observed: "Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is 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." 26. One of such guidelines is 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." 26. In the present case as already pointed out the un-controverted allegation made in the complaint lodged by the Station House Officer and the evidence collected in support of such allegations do not disclose the commission of an offence under Section 186 of the Indian Penal Code. In these circumstances, it would be abuse of the process of the Court to continue with the proceedings against the petitioner. There are no grounds for proceedings with the trial. 27. No other point is urged before me. 28. In result, the petition is allowed. The impugned order of the learned trial Magistrate is set aside. The accused shall stand discharged.