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Gauhati High Court · body

2008 DIGILAW 214 (GAU)

Bajranglal Parikh v. State of Assam

2008-03-12

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. Whether a Magistrate has the power to take cognizance of an offence, under Section 100, IPC, on the basis of a 'police report', submitted in terms of Section 173(2), Code of Criminal Procedure, is the subject of controversy in the present cases. 2. By order, dated 21.9.2007, passed, under Section 144(2) of the Code of Criminal Procedure (in short, 'the Code'), by the District Magistrate, Jorhat, the use, import, storage, transportation and sale of crude molasses (treacle or rotten gur) was, in the district of Jorhat, prohibited, the order having been passed on the ground that molasses (treacle or rotten gur) is the main raw material for production of illicit liquor in Jorhat district. The order also made it clear that any violation of the order would be punishable under Section 188, IPC. Following the publication of the said prohibitory order, Inspector of Excise, Jorhat, seized, on 27.9.2007, a large number of tins of lali gur, lying in the godowns of the employers of the present Petitioners, on the ground that storage of the said lali gur amounted to disobedience of the said prohibitory order and, therefore, punishable under Section 188, IPC. An information, in writing, having beeli lodged, in this regard, by the Inspector of Excise alleging to the effect that the Petitioners had, by storing lali gur, violated and disobeyed the said prohibitory order, Jorhat P.S. Case No. 598/2007 (Corresponding to GR. Case No. 1188/2007) under Section188, IPC was registered against the Petitioners. Following the seizures so made and the case so registered, the Petitioners were arrested and, in course of time, released on bail. In course of time, the police, on completion of investigation, laid a charge-sheet, under Section 188, IPC, for prosecution of the Petitioners. 3. By making a writ application, which gave rise to WP(C) No. 5208/2007, the Petitioners challenged the legality of the said prohibitory order, dated 30.9.2007. By order, dated 5.10.2007, the High Court suspended the said prohibitory order. In terms of the directions, so given, the prohibitory order stands till date suspended. The alleged violation of the said prohibitory order, however, took place, in the present case, on 27.9.2007, i.e., before the interim directions, suspending the said prohibitory order, was passed. 4. By order, dated 5.10.2007, the High Court suspended the said prohibitory order. In terms of the directions, so given, the prohibitory order stands till date suspended. The alleged violation of the said prohibitory order, however, took place, in the present case, on 27.9.2007, i.e., before the interim directions, suspending the said prohibitory order, was passed. 4. Following the order, dated 5.10.2007, passed, in WP(C) No. 5208/2007, whereby the said prohibitory order, dated 30.9.2007, was suspended, the Petitioners applied to the learned Chief Judicial Magistrate, Jorhat, seeking release of the said seized molasses. By order, dated 24.10.2007, the Petitioners' prayer for release of the seized molasses was rejected on the ground that the seized molasses were rotten and usable for production of illicit liquor. The Petitioners, then, impugned the order, dated 24.10.2007, aforementioned, by way of a Criminal Revision, which gave rise to Criminal Revision No. 350/2007. This apart, by making an application under Section 482, Code of Criminal Procedure, the Petitioners challenged the very maintainability of the case registered against them and sought for quashing of the entire criminal proceeding. This application gave rise to Criminal Petition No. 23/2008. As the learned Chief Judicial Magistrate has, in the meanwhile, taken cognizance of offence under Section 188, IPC by order, dated 30.10.2007, the Petitioners have, now, challenged the very taking of cognizance of the offence, under Section 188, IPC, on the ground that their prosecution is barred by virtue of the provisions of Section 195, Code of Criminal Procedure inasmuch as a Court cannot take cognizance of an offence under Section 188, IPC, for, a Court is barred from taking cognizance of an offence under Section 188 unless a complaint is made, in writing, by the public servant, whose order has been disobeyed, or unless a complaint, in writing, is made by a public servant, to whom the public servant, whose order is alleged to have been disobeyed, was administratively subordinate. 5. In substance, thus, the challenge posed, in the present Criminal Petition, is this: whether a Magistrate can, in the light of the provisions of Section 195(1)(a)(i) of the Code of Criminal Procedure, take cognizance of an offence, punishable under Section 188, IPC, on the basis of a 'police report' submitted in terms of Section 173(2) of the Code of Criminal Procedure (in short, 'the Code')? 6. I have heard Mr. 6. I have heard Mr. S.S. Sharma, learned Senior Counsel, appearing on behalf of the accused-Petitioners, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. Looking into the seriousness of the controversy, which this Criminal Petition has raised, this Court has also heard Mr. P. Bora, learned Counsel, as amicus curiae. 7. While considering the question, posed above, it needs to be pointed out that under the Second Schedule of the Code, an offence, under Section 188, IPC, is a cognizable offence. 8. Because of the fact that an offence, under Section 188, IPC, is cognizable under the Second Schedule of the Code, the implication is that anyone can inform, in terms of Section 154(1) of the Code, an Officer-in-Charge of a Police Station, within local limits of whose jurisdiction disobeyance of an order, passed under Section 144, IPC, has taken place, that the order stands disobeyed. Because of the fact that such information would amount to laying of an information of commission of an offence under Section 188 IPC which is a cognizable offence, such an information would be treated as a First Information Report. In such a case, Section 156(1) empowers the police to investigate the case without order of a Magistrate. During the course of such investigation, the Police Officer can arrest the offender and also seize any property, which may have to be produced during the course of the trial, as evidence to prove the factum of disobeyance of the order as contemplated in Section188, IPC. Section 173 contains provisions as to what a Police Officer shall do on completion of investigation. Sub-section (2) of Section 173 envisages submission of a 'police report' of the investigation to the Magistrate, who is empowered to take cognizance. Section 190(1)(b) empowers a Magistrate, within whose local jurisdiction the police station is situated, to take cognizance of an offence on the basis of a 'police report' submitted under Section 173(2). 9. However, when the offence, which a 'police report' discloses, is an offence under Section 188, IPC, can a Magistrate take cognizance of such an offence on the basis of the 'police report'? This question brings me to Section 195 of the Code. The relevant provisions of Sub-section (1) of Section 195 are reproduced hereinbelow: 195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence. This question brings me to Section 195 of the Code. The relevant provisions of Sub-section (1) of Section 195 are reproduced hereinbelow: 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 Sections 172 to 188(both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, 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) * * * (ii) * * * (iii) * * * 10. A careful reading of Section 195(1) clearly shows that no Court can take cognizance of an offence, amongst others, under Section 188, IPC, except on a complaint, in writing, of the public servant concerned or of some other public servant to whom the public servant, whose order was disobeyed, is administratively subordinate. Thus, a Court is debarred from taking cognizance of an offence under Section 188, IPC unless a complaint, in writing, is submitted by the public servant concerned, i.e. the public servant, who had promulgated the order, or some other public servant to whom the public servant, who had promulgated the order, is administratively subordinate. The expression 'public servant concerned', occurring in Section 195(1), has been a subject of interpretation in many decisions of the various High Courts. The law, however, stands settled on the meaning to be attributed to the expression 'public servant concerned' by pronouncement of the decision in State of U.P. v. Mata Bhikh and Ors. reported in (1994) 4 SCC 95 , wherein, having considered a number of judicial pronouncements, the Court concluded that the expression 'public servant concerned' would include a successor-in-office of the public servant, who had promulgated the order or passed certain direction(s), which is/are alleged to have been disobeyed. The relevant observations, made in this regard, in Mata Bhikh (supra), read thus: 15. On a scrutiny of Section 195(1)(a), we are of the view that a successor-in-office of a "public servant concerned" will also fall within the ambit of the expression "public servant concerned". Any other view contrary to it will only create difficulties in certain situations. The relevant observations, made in this regard, in Mata Bhikh (supra), read thus: 15. On a scrutiny of Section 195(1)(a), we are of the view that a successor-in-office of a "public servant concerned" will also fall within the ambit of the expression "public servant concerned". Any other view contrary to it will only create difficulties in certain situations. For example, in a case where a "public servant concerned" promulgates a preliminary order under Sections133,145 or 146 of the Code of Criminal Procedure and is transferred or retires or ceases to be in office on any account before a final order is passed, would it mean that the successor who is under the law to continue the same proceeding has not right to file a complaint if the preliminary order is disobeyed. The answer would be that the successor-in-office can file a complaint. In every such situation, one cannot aspect the superior officer to whom the public servant is administratively subordinate to file a complaint against the wrongdoers disobeying either the preliminary or the final order promulgated by the "public servant concerned". 16. Therefore, in the light of the dictum laid down in Ajaib Singh we are of the view that the successor-in-office of the public servant gets into the same position of the "public servant concerned" and he is in law eligible to file a complaint against wrongdoers. To say in other words, the successor-in-office falls within the ambit of the expression "public servant concerned". The view taken by the High Court in the impugned judgment cannot be sustained and accordingly the judgment of the High Court is set aside and the appeal is allowed. 11. What follows from the above discussion is that unless a complaint, in writing, is made by the public servant, whose order giving certain direction to a person(s) has been disobeyed, or by his successor-in-office or by some other public servant to whom the public servant, who had promulgated the order, was administratively subordinate, cognizance of offence, under Section 188, IPC, is not possible. 12. 12. Logically, therefore, the question, which, now, arises is this: Is it possible for a Court to take cognizance of an offence under Section 188, IPC if the 'public servant concerned' has, instead of lodging a complaint, in writing, with a Magistrate, informed the police as regards disobeyance of the directions given in terms of the order promulgated by him and the police, having acted upon such information, registered a case and, upon completion of investigation, a 'police report' (i.e., charge-sheet), in terms of Section 173(2) of the Code, seeking prosecution of the person, who has disobeyed the directions under Section 188, IPC, is submitted? The answer to this question is not very far to seek and the answer has to be an emphatic 'no', for, an information given to the police, as indicated hereinbefore, is not a complaint within the meaning of Section 2(d) of the Code inasmuch as a 'complaint', in the light of the definition of 'complaint', as contained in Section 2(d), means any allegation made, orally or in writing, to a Magistrate with a view to his taking action, under the Code, that some person, whether known or unknown, has committed an offence, but does not include a 'police report'. 13. In the light of what Section 2(d) defines as 'complaint' it is clear that the allegations, whether oral or in writing, have to be made to the Magistrate and not to the police and such allegation must be aimed at making the Magistrate take action under the Code. 14. I may pause here to point out that there may be a case, wherein information is given to a Magistrate of the facts, which may constitute an offence, but without intending to make the Magistrate take action in law. The Magistrate may, nevertheless, in such a case, take cognizance of the offence disclosed by such information, whether oral or in writing. Such taking of cognizance is not on the basis of the 'complaint', but on the basis of the 'information'. Section 190 contemplates three distinct modes of taking cognizance of offence by a Magistrate, namely, on the basis of 'complaint' as defined in Section 2(d) or upon a 'police report' submitted under Section 173(2) or upon 'information' received from any person other than a police officer, or upon his own 'knowledge', that such offence has been committed. 15. Section 190 contemplates three distinct modes of taking cognizance of offence by a Magistrate, namely, on the basis of 'complaint' as defined in Section 2(d) or upon a 'police report' submitted under Section 173(2) or upon 'information' received from any person other than a police officer, or upon his own 'knowledge', that such offence has been committed. 15. What surfaces from the above discussion is that an 'information', which does not satisfy ingredients of 'complaint' in Section 2(d), may, nevertheless, be made foundation for taking of cognizance of an offence, in a given case, by virtue of Section 190(1)(c) provided it is, otherwise, permissible. In the present case, however, the Magistrate cannot take cognizance of an offence, under Section 188, IPC, on the basis of a 'police report' or upon 'information' received from a police officer or upon his own 'knowledge' of such an offence having been committed, except upon receiving a 'complaint', in writing, by the public servant concerned. This aspect of law stands crystallized by the decision in Daulat Ram v. State of Punjab AIR 1962 SC 1206 . 16. In Daulat Ram (supra), Daulat Ram wrote, on 19.8.1958, a letter to the Tehsildar of Pathankot to the effect that on the previous day, two persons, namely, Hans Raj and Kans Raj beat him up severely and robbed him of certain official papers and some money, which were with him, partly belonging to him and partly belonging to the Government. The Tehsildar forwarded the letter to the Sub-Divisional Officer, who, in turn, sent the same to the police. The police enquired into the facts and reported that the allegations, contained in the letter, were false. In the meanwhile, Daulat Ram wrote another letter to the Tehsildar stating to the effect that a compromise had been entered into between him, on the one hand, and Hans Raj and Kans Raj, on the other, who were his relatives and as he had found the papers and the money, the proceedings, if any be dropped and the papers be consigned to the record room. The matter was, however, pursued further and when the report of the police came that the allegations in the original letter were false, the Tehsildar asked the police that the charge-sheet be drawn up. The matter was, however, pursued further and when the report of the police came that the allegations in the original letter were false, the Tehsildar asked the police that the charge-sheet be drawn up. The police, however, launched prosecution against Daulat Ram under Section 182, IPC and at the end of the trial, Daulat Ram, having been found guilty of the offence, was sentenced to three months' rigorous imprisonment. His appeal and revision having failed, he carried the matter to the Supreme Court. The question, which arose in Daulat Ram (supra), and the Court's answer thereto pre clearly discernible from the observations made by the Court, which read thus, The only question in this case is whether a complaint in writing as required by Section 195 has been presented by the "public servant concerned". The public servant who was moved by the Appellant was undoubtedly the Tehsildar. Whether the Appellant wanted the Tehsildar to take action or not, the fact remains that he moved the Tehsildar on what is stated to be a false averment of facts. He had charged Hans Raj and Kans Raj with offences under the Penal Code and he had moved his superior officer for action even though he might have stated in the letter that it was only for his information. We are prepared to assume that he expected that some action would be taken. In fact his second letter that he had compromised the matter and the proceeding might be dropped clearly shows that it anticipated some action on the part of his superior officer. The question is therefore whether under the provisions of Section 195, it was not incumbent on the Tehsildar to present a complaint in writing against the Appellant and not leave the Court to be moved by the police by potting in a charge-sheet. 17. The question is therefore whether under the provisions of Section 195, it was not incumbent on the Tehsildar to present a complaint in writing against the Appellant and not leave the Court to be moved by the police by potting in a charge-sheet. 17. Having considered the provisions of Section 195, which bars the taking of cognizance of offences under Sections 172 to 188 (i.e., inclusive of Section 182, IPC) except on a complaint, in writing, of the public servant concerned, or of some other public servant to whom he is subordinate, the Court, in Daulat Ram (supra), observed: ...The words of the section, namely, that the complaint has to be in writing by the "public servant concerned" and that no Court shall take cognizance except on such a complaint clearly show that in every instance the Court must be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the "public servant concerned" and if he had not filed the complaint in writing, whether the police officers in filing the charge-sheet had satisfied the requirements of Section 195. The words "no Court shall take cognizance" have been interpreted on more than one occasion and they show that there is an absolute bar against the Court taking seisin of the case except in the manner provided by the section. 18. From what have been observed and held in Daulat Ram (supra) and Mata Bhikh and Ors. (supra), there remains no room for doubt that no Court can take cognizance of any offence, under Sections172 to 188, unless and until a 'complaint', in writing, has been made by the public servant concerned, i.e., who had promulgated the order and whose order has been disobeyed or his successor-in-office or of some other public servant to whom he is administratively subordinate. 19. What logically follows from the above discussion is that if a 'complaint', as envisaged in Section195(1)(a), is not received by a Magistrate in respect of an offence under Section 188 IPC. the Magistrate cannot, on the basis of a 'police report' submitted under Section 173(2), take cognizance, for, the 'police report' in the light of what has been discussed above, cannot be treated as the 'complaint', in writing, of the 'public servant concerned'. 20. the Magistrate cannot, on the basis of a 'police report' submitted under Section 173(2), take cognizance, for, the 'police report' in the light of what has been discussed above, cannot be treated as the 'complaint', in writing, of the 'public servant concerned'. 20. We have, now, in our hands, a situation, where the police has been given the power to arrest a person without warrant if he is alleged to have committed an offence under Section 188, IPC, investigate the case, make seizure, if necessary, and submit 'police report'. We have, on the other hand, Section 195(1) of the Code, which debars every Court from taking cognizance of such an of fence unless a complaint, in writing, is received by the Magistrate from the 'public servant concerned' or his successor-in-office or of some other public servant to whom he is administratively subordinate. Though, granted by law, the power to arrest and submit report, the fact remains that when such arrest or investigation cannot lead to prosecution of a person, who is found to be an offender, it would be an abuse of the powers given to the police if they arrest a person for commission of an offence under Section 188 IPC. The abuse of the process of law is not necessarily confined to situations where an action is taken without law, but also when an action is taken under the law, though while taking such action, it is known to the law enforcement machinery that no fruitful purpose would be served. 21. The scheme of the Code clearly shows that when a Magistrate cannot take cognizance of an offence except on a 'complaint', he cannot send such a complaint for investigation to the police under Section 156(3), though he has the power to postpone issuance of process on the basis of such a complaint or hold an enquiry in terms of Section 202. In such an enquiry, if he directs an investigation to be conducted, it would not be an investigation under Section 154 read with Section 156(3), but such investigation would be only for the purpose of enabling the Magistrate to make up his mind whether or not he shall proceed with the case and issue process. In such an enquiry, if he directs an investigation to be conducted, it would not be an investigation under Section 154 read with Section 156(3), but such investigation would be only for the purpose of enabling the Magistrate to make up his mind whether or not he shall proceed with the case and issue process. By no means, therefore, in a case of present nature, the 'police report' can become foundation for taking of cognizance and when a 'police report' cannot become the foundation for taking cognizance, it would be unrealistic to allow such a proceeding to continue. 22. In the backdrop of the law as discussed above, when I revert to the facts of the present case, what clearly transpires is that on the basis of an information given, in writing, to the police, the FIR was registered, police investigated the case and, on completion of investigation, laid the 'police report' (charge-sheet) for prosecution of the accused-Petitioners under Section 188, IPC. The learned Court below has taken cognizance on the basis of this report and directed issuance of process. As the issuance of process suffers from inherent lack of jurisdiction, the order taking cognizance cannot but be set aside. 23. I may, at this stage, pause here to point out that the offences from Sections 172 to 188, IPC, fall under Chapter - X of the IPC. The heading of this Chapter reads : "of Contempts of the Lawful Authority of Public Servants". This chapter penalizes various acts or omission, which are in contempt of lawful authority of the public servant. The Second Schedule to the Code of Criminal Procedure, 1898, and also of 1973 made offences under Sections 172 to 188, IPC 'non-cognizable'. The relevant report of the Law Commission shows that the Law Commission had not recommended making of Section 188, IPC cognizable. The Legislature has, thus, made Section 188 cognizable without, however, making any corresponding change in the provisions of Sub-section (1) of Section195. The end result is that though Section 188 has been made cognizable empowering the police not only to arrest without warrant, but also to investigate the allegation of disobeyance of an order lawfully promulgated by a public servant, the Magistrate has been kept debarred from taking cognizance on the basis of the 'police report', which the police may submit, under Section 173(2) of the Code, on completion of such investigation. 24. 24. During the course of hearing, Mr. P. Bora, learned Counsel, appearing as Amicus curiae, has referred to a Division Bench decision of the Punjab and Haryana High Court, rendered in Karnail Singh and Anr. v. The State of Punjab, reported in 1983 Cri LJ 73. This decision is not relevant, in the present case, for the simple reason that the question, involved in Karnail Singh (supra) was interpretation of the provisions of Section 195(1)(b)(ii) and not of Section 195(1)(a). Be that as it may, in Karnail Singh (supra), the Court took the view that it is possible for the police to investigate an offence under Sections 471, 475 or 476, IPC. The facts of this decision are relevant and are, therefore, reproduced hereinbelow: 2. Karnail Singh Petitioner and another had instituted a civil suit on 25th of September, 1980, against his brother Jarnail Singh and others seeking a declaration to the effect that they were owners in possession of the said land and for a permanent injunction against the Defendants from interfering with their possession. This claim was rested primarily on a will allegedly executed on the 27th April, 1977, by the Petitioner's father Hari Singh. During the pendency of the said suit Jarnail Singh aforesaid who was a Defendant therein made an application before the Senior Superintendent of Police, Amritsar, alleging that the will purporting to be dated 27th April, 1977, relied upon by the Petitioner had been designedly forged and thereby the Petitioner had committed the offence of cheating and forgery. On the basis of the said application, a case under Sections 420,467 and 471 of the Penal Code was registered at Police Station Majitha and the investigation thereof was commenced. 25. It was in the factual scenario, as indicated above, that the Court had taken the view that the police was not debarred from investigating the case. 26. In Karnail Singh (supra), as the will was alleged to have been forged before it was introduced into proceedings of the Court, the bar, imposed under Section 195(1)(b)(ii), did not apply at all. Certain observations made in Karnail Singh (supra), which have some relevance in the present case, need to be properly analyzed. These observations read: 5. 26. In Karnail Singh (supra), as the will was alleged to have been forged before it was introduced into proceedings of the Court, the bar, imposed under Section 195(1)(b)(ii), did not apply at all. Certain observations made in Karnail Singh (supra), which have some relevance in the present case, need to be properly analyzed. These observations read: 5. Repelled on his main stance, learned Counsel for the Petitioner fell back for reliance on Sheela Devi's case Chand LR (Cri) 195 (P&H)(supra), to contend that the police would have no jurisdiction to investigate the offence unless a complaint in writing in the Civil Court, wherein the alleged forged will had been produced, was allegedly made. Particular reference was made to the following observations therein: ...if the Court cannot take cognizance of offences on a 'police report' then the police investigation of the alleged offences as such would be meaningless and futile exercise and would cause avoidable harassment to the person complained against. In a situation like this, the police authorities have no jurisdiction to entertain the complaint and investigate the same. It seems manifest from the above drat the basic premise in Sheela Devi's case (supra) is that if there is a procedural impediment for taking cognizance of an offence by a Criminal Court, then the jurisdiction of the police to investigate the same would be barred. With great respect, this assumption is not universally true. It is elementary that investigation by the police would precede the issue of the question of taking cognizance of an offence, if any, disclosed therefrom, by a Criminal Court. As was pointed out in Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18 : 1945 Cri LJ 413, the functions of die police to investigate and that of the judiciary to take cognizance are distinct and separate though complimentary to each other. The police has a statutory right to investigate into cognizable offences and the same would not be par se barred because the Code prescribes a procedure or a condition before cognizance of an offence disclosed by such investigation can be taken by a Court. An apt example is that of offence under the Prevention of Corruption Act. Under Section 6 thereof, no Court can take cognizance of such an offence except with the previous sanction of the State, Central Government or the authority competent to remove the public servant from his office. An apt example is that of offence under the Prevention of Corruption Act. Under Section 6 thereof, no Court can take cognizance of such an offence except with the previous sanction of the State, Central Government or the authority competent to remove the public servant from his office. Would such a provision necessarily bar investigation by the police into such an offence till the requisite sanction is granted? I do not think so. Indeed, it seems to be well settled that it is only after the investigation to such an offence is complete that the question of granting sanction by the authority arises on the materials so placed before it and thereafter the issue of cognizance by a Court of law would come into play. Therefore, it cannot be laid down as an inflexible rule that merely because the cognizance of an offence can only be taken at the instance of a Court the investigation thereof by the police would be automatically prohibited. It has perhaps to be highlighted that Courts do not investigate cognizable offences which is the primary function of the police. It would perhaps be after an investigation that the materials collected therein could be placed before a Court for moving it to prefer a complaint for the prosecution of the offender as visualised in Section 195(1)(b) of the Code. Even when this provision is clearly attracted, I am unable to see an inflexible bar against police investigation, or the Court taking notice of and acting on the material collected by the investigating agency for taking action under the aforesaid section. 27. No doubt, it is true, as observed in Karnail Singh (supra), that an investigation is different from the act of taking of cognizance. The fact, however, remains that when an investigation cannot, because of the bar imposed by the law result in taking of cognizance of offence, which the investigation may reveal, such investigation would be nothing, but abuse of the process of law. In Karnail Singh (supra), the Court has observed that an apt example is that of offence under the Prevention of Corruption Act. With greatest of respect and utmost reluctance, I may point out that the reference made to the provisions of the Prevention of Corruption Act is an example, which is, perhaps, inappropriate. In Karnail Singh (supra), the Court has observed that an apt example is that of offence under the Prevention of Corruption Act. With greatest of respect and utmost reluctance, I may point out that the reference made to the provisions of the Prevention of Corruption Act is an example, which is, perhaps, inappropriate. Neither Section 6 of the Prevention of Corruption Act nor the provisions contained in Section 197 debar the police from investigating a case nor does it debar the Court from taking cognizance on the basis of a 'police report', which maybe submitted, in terms of Section173(2), on completion of investigation provided that requisite sanction has been obtained. This business of obtaining of sanction in a case, which is investigated by the police, is of the police if it has to effectively prosecute the offender. The law does not prohibit the police from obtaining sanction before submitting its report under Section 173(2). It is because of infraction of law committed by investigating agency that the prosecution of an offender may fail if sanction, as required, is not obtained by the police; but in a case, where the police has done everything, which is necessary to do, and yet a person cannot he prosecuted on the basis of the report, which the police, eventually, submits under Section 173(2), there is no meaning in allowing such an investigation to be carried on. 28. The case of Mt. Lachmi Devi v. Emperor Rankin. C.J. reported in (1931) AIR 122, is of some relevance in the present case. By virtue of an Ordinance, an offence under Section 188, IPC, had been made cognizable without, however, making any corresponding amendment in the provisions of Section 195. In such a factual scenario, Rankin, CJ, speaking for the Court, in Mt. Lachmi Devi (supra), observed as follows: ...I fail to see that the ordinance to which we have been referred, ordinance No. 5 of 1930 and the notification thereunder making the offence under Section188, IPC, cognizable and non-bailable, get rid of the requirements imposed by Section 195, Criminal PC. Lachmi Devi (supra), observed as follows: ...I fail to see that the ordinance to which we have been referred, ordinance No. 5 of 1930 and the notification thereunder making the offence under Section188, IPC, cognizable and non-bailable, get rid of the requirements imposed by Section 195, Criminal PC. It has to be remembered that Section 190 of the Code does not now stand exactly as it stood before 1923, and, if we follow out the consequences of making an offence under Section 188 cognizable and non bailable, we find that a police officer can arrest without warrant and we find that a police investigation may be commenced in respect of the offence. That brings us up to the point which is represented by Section 173, Criminal PC. When the investigation is completed, the Officer-in-Charge of the police station by virtue of Section 173 is to forward to a Magistrate empowered to take cognizance of the offence on a 'police report', a report in a certain form. An offence which is within the terms of Section 195 is not an offence which any Magistrate is empowered to take cognizance of upon a 'police report'. By Section 195, Sub-section (1) Clause (a), no Court shall take cognizance of any offence punishable under Sections 172 to 188, IPC, except on the complaint in writing of the "public servant concerned" or some other public servant to whom he is subordinate. Now, as Section 190 stood before 1923, there was a doctrine to the effect that a report by the police in a non-cognizabe case was not a 'police report' within the meaning of Clause (b), Section 190, Sub-section (1) and the definition of complaint in the Penal Code which excluded from the category of complaint a report by a police officer was held not to prevent a report in a non-cognizable case from being regarded as a complaint. That state of the law has been materially altered and it seems to me that it is not now possible to say that merely by making this class of offence cognizable and non-bailable, the necessity has been dispensed with of having a complaint in such a case as this by the superior of the public servant whose order has been disobeyed. 29. The situation at hand is almost identical with Mt. Lachmi Devi (supra), for, while in the case of Mt. 29. The situation at hand is almost identical with Mt. Lachmi Devi (supra), for, while in the case of Mt. Lachmi Devi (supra), it was by virtue of an Ordinance that an offence under Section 188, IPC was made cognizable without making any corresponding change or amendment in Section 195(a), the present case is one, where Section 188, IPC has been made cognizable by the legislature. In the present case too, however, no corresponding change has been made by the legislature in the provisions of Section 195(1)(a)(i). Hence, I completely fail to comprehend as to how it would be possible for a person to be prosecuted on the basis of a 'police report' for an offence committed, under Section 188, IPC, unless a complaint, in writing, is made to the Magistrate by the public servant concerned or a public servant to whom he is administratively subordinate. Looked at from any angle, the prosecution of the Petitioners is wholly illegal, cannot be sustained and must be treated as an abuse of the process of law. 30. Because of what have been discussed and pointed out above, this Criminal Petition and Criminal Revision succeed. The order, dated 30.9.2007, taking cognizance of offence under Section 188, IPC, against the present Petitioners is hereby set aside and the whole proceeding is hereby quashed. So far as the seized articles are concerned, the disposal thereof shall be covered by the provisions of the law relevant thereto. 31. With the above observations and directions, this Criminal Petition and the Criminal Revision shall stand disposed of. 32. No order as to cost. 33. Send back the LCR.