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2011 DIGILAW 371 (CHH)

Bhaiyalal Patel v. State of C. G.

2011-11-29

MANINDRA MOHAN SHRIVASTAVA

body2011
ORDER Hon'ble Shri Manindra Mohan Shrivastava, J. 1. With the consent of learned counsel for the parties, the matter is heard finally. This petition has been filed by the petitioners under Section 482 of the Cr.P.C. for quashing criminal proceedings instituted against the petitioners in the Court of Judicial Magistrate First Class, Manendragarh, taking cognizance of commission of offence under Section 188 of the IPC on the basis of the charge sheet filed by the Police of Police Station Manendragarh. The petitioners moved an application under Section 195(1) of the Cr.P.C. before the Magistrate for closing the criminal case, which was rejected by the learned Magistrate vide its order dated 13-01-2010, which was challenged by filing revision, which too has been dismissed vide order dated 29-06-2011 giving rise to this petition. 2 The facts stated in the petition show that their existed a dispute between the petitioners and Bhaiyalal on one hand and Paras Nath Tiwari on the other. Proceedings under Section 250 of the Land Revenue Code were drawn and orders were passed by the Revenue Court, which was taken in appeal before the Additional Commissioner (Revenue), who passed an interim order on 04-03-1999 directing status quo to be maintained. On 29-06-2002, the Tahsildar submitted an application to the Town Inspector, alleging that the petitioners had committed offence under Section 188 of the IPC, as they disobeyed the directions issued by the Additional Commissioner on 04-03-1999. The police of Police Station Manendragarh registered offence under Crime No. 276/2002 and after completing investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Manendragarh. On 19-07-2003, the Court after taking into consideration the material, framed charges for commission of offence under Section 188 of the IPC. During the pendency of the criminal proceedings, the petitioners moved an application on 19-02-2008, purporting to be under Section 195(1)(a) of the Cr.P.C. raising objections with regard to very maintainability of the criminal proceedings, particularly on the ground that no cognizance of particular offence could be taken, except in accordance with the provisions contained in Section 195(1)(a) of the Cr.P.C. The application was rejected vide order dated 13-01-2010 and thereafter, revision was filed, which was also dismissed on 29-06-2011. 3. 3. Though, number of grounds are raised in the petition, the main plank submission of learned counsel for the petitioners is that the petitioners could not be subjected to criminal proceedings and prosecution on the basis of a report lodged by Tahsildar alleging commission of offence under Section 188 of the IPC, because in the matter of prosecution for commission of offence under Section 188 of the IPC, specific provisions have been made under Section 195 of the Cr.P.C. which mandatorily provided that no Court shall take cognizance of any offence punishable under Section 188 of the IPC, except on the complaint in writing of the concerned public servant or of some other public servant, to whom, he is administratively subordinate. Learned counsel for the petitioners contended that the only manner, in which, the prosecution could be launched against the petitioners was, by way of a complaint in writing, which could be submitted by the concerned Officer, who had passed the order, disobedience of which, was alleged. It is further contended that neither the Additional Commissioner, who passed the status quo order submitted any complaint before the Court nor any other public servant, to whom, the Additional Commissioner is administratively subordinate, submitted the complaint. Therefore, it is submitted that the entire criminal proceedings are without jurisdiction, being in teeth of provisions under Section 195 of the Cr.P.C. 4 On the other hand, learned State counsel submitted that the Tahsildar had lodged a report, on which, crime was registered way back in the year 2002 and then charge sheet was submitted in the Court of Judicial Magistrate First Class, Manendragarh, who took cognizance of the offence by framing charges as back as on 19-07-2003. The petitioners did not challenge the validity or maintainability of those criminal proceedings as also order of framing of charge passed at that point of time and submitted to the jurisdiction of the Magistrate and after long delay, they moved an application purporting to be one under Section 195(1)(a) of the Cr.P.C. on 19-02-2008 i.e. more than five years, which was rightly rejected by the Courts below on tenable grounds including that the application was filed after great delay. He further submits that all these issues could be raised by the petitioners by way of their defence during the course of trial and once the Court has taken cognizance and the matter has remained pending all these years, the petitioners are not entitled to any relief in the midst of the proceedings pending in the Court below. 5. There is no dispute with regard to the fact that the petitioners have been subjected to prosecution for alleged commission of offence under Section 188 of the IPC. It is also not in dispute that the allegations against the petitioners are that they have disobeyed the orders passed on 04-03-1999 by the Additional Commissioner, Bilaspur Division. Chapter-XV of the Cr.P.C. contains provisions prescribing conditions requisite for initiation of criminal proceedings. Section 195 of the Cr.P.C. contains general provisions with regard to taking cognizance of offence by the Magistrate, however in respect of certain offences, special provisions have been made prescribing the manner, in which, and the circumstances, in which, the cognizance could be taken by the Court. Section 195(1) provides that no Court shall take cognizance of certain offences enumerated in clauses (a) & (b), except in the manner provided therein. The provisions contained in sub section (1) are mandatory in nature and are not directory. This would be clear from the use of negative words. The statutory mandate prohibits taking of cognizance except in the manner provided therein. In so far as commission of offence under Section 188 of the IPC is concerned, the provisions contained in clause (a) are applicable, which mandate that no Court shall take cognizance of offence punishable under Section 188 of the IPC, except on the complaint in writing of the public servant concerned or some other public servant, to whom, he is administratively subordinate. Therefore, in all cases, allegations of commission of offence under Section 188 of the IPC i.e. allegation of disobedience of order passed by the public servant, the Courts are prohibited from taking cognizance, except when the complaint in writing is made by the concerned public servant. Use of words "public servant concerned" on rational and logical interpretation would mean that the complaint has to be filed that too in writing and to be filed by that public servant, whose order is alleged to be disobeyed. Use of words "public servant concerned" on rational and logical interpretation would mean that the complaint has to be filed that too in writing and to be filed by that public servant, whose order is alleged to be disobeyed. The other officer/public servant, who could file complaint is one to whom the concerned public servant is administratively subordinate. Therefore, the cognizance can be taken only when there is a complaint in writing by the concerned public servant or by some other public servant, to whom, the concerned public servant, whose order is alleged to be disobeyed, is administratively subordinate. There is yet another aspect of the matter, which is relevant. The provision clearly prohibits taking cognizance, except on the complaint in writing. The words complaint used in the provision clearly refers to a complaint to be made before the Magistrate and it would not mean that report could be lodged in the police station. I do not find any thing in the provision, which requires the Court to come to the conclusion that the context of the provision intended extended meaning to be assigned to the word "complaint" used in the provision. The word "complaint" therefore has to be understood as defined in Section 2(d) of the Cr.P.C. The statutory scheme with regard to cognizance of commission of offence under Section 188 of the IPC is that the complaint has to be filed before the Magistrate concerned having territorial jurisdiction either by the concerned public servant, whose order is alleged to be disobeyed or by any other public servant, to whom, the concerned public servant is administratively subordinate. In the present case, it is the Tahsildar, who submitted a report to the Town Inspector, Manendragarh, who appears to have forwarded the report to the Police Station Manendragarh leading to registration of criminal case under Section 188 of the IPC. The police proceeded to investigate the matter and submitted charge sheet. It is not the case that the Court or Magistrate has taken cognizance on the complaint in writing either by the Additional Commissioner or by any other officer or public servant, to whom, the Additional Commissioner is administratively subordinate. Apparently, the institution of criminal case and prosecution of the petitioners, are against the provisions of law and abuse of the process of law. Apparently, the institution of criminal case and prosecution of the petitioners, are against the provisions of law and abuse of the process of law. The petitioner could not be subjected to prosecution except in accordance with the provisions established by the law. The submission of learned State counsel that the petitioners did not raise this dispute for a long time, does not clothe the proceedings with legality. True it is that the petitioners immediately did not challenge the same, however having found that the Court could not have taken cognizance except in the manner provided under Section 195(1)(a) of the Cr.P.C., the illegal proceedings cannot be allowed to be continued only on the ground that such a objection was not taken immediately after framing of charges. The illegality cannot be allowed to be perpetrated, particularly, in the matter of prosecution of a person. 6 In the result, the entire criminal proceedings against the petitioners in Criminal Case No. 264 of 2009 are declared illegal and hereby set aside. It is made clear that this order would not come in the way of launching criminal prosecution against the petitioners in accordance with law. The petition is accordingly allowed.