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2012 DIGILAW 792 (AP)

Velagapudi Babu Rao v. State of A. P.

2012-08-30

R.KANTHA RAO

body2012
ORDER This criminal petition is filed under Section 482 of the Criminal procedure Code to quash the entire proceedings in C.C. No. 236 of 2009 on the file of the III Metropolitan Magistrate, Vijayawada against the petitioner/A-A-6. 2. I have heard Sri P.S.P. Suresh Kumar, learned counsel appearing for the petitioner and the learned Additional Public Prosecutor representing the State/Respondent. 3. The Sub-Inspector of Police, Penamaluru Police Station, Vijayawada City filed the charge sheet alleging commission of offence by the petitioner/A-6 and others under Sections 188 and 341 IPC. The gist of the allegations in the charge sheet is that the petitioner and others, who are the members of the Telugu Desam Party organized rastha rokho at Bandar Road, Krishna Nagar Centre to protest against the hike of petro-gas charges on 7-11-2004 which caused obstruction and annoyance to the public in violation of then prohibition orders promulgated in Vijayawada City under Section 30 of the A.P. Police Act. It is contended on behalf of the petitioner that in substance, the offence alleged is under Section 188 IPC and the other Sections viz., 341 IPC and 147 IPC were included unnecessarily. It is contended that according to Section 195(1) Cr.P.C. no Court shall take cognizance of offence under Section 188 IPC abetment of or attempt to commit, such offence, or 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. The learned counsel would contend that in this case, the Sub-Inspector of Police, Penamaluru Police Station, Vijayawada city directly filed charge sheet basing on his receiving information about the alleged commission of offence and therefore, the Magistrate before whom the charge sheet is filed shall not take cognizance of the offence as there is no complaint in writing by the public servant concerned. 4. In Chinnamuthu Ambalam v. S. Jagannatha Chariar (l) AIR 1959 Madras 89 (Vo1. 46, C29) (1) it is held as follows: To attract Section 188 IPC, the following ingredients are required to be satisfied: 1. That, there must be an order promulgated by a public servant. 2. That, the public servant must have been lawfully empowered to promulgate such order. 3. 46, C29) (1) it is held as follows: To attract Section 188 IPC, the following ingredients are required to be satisfied: 1. That, there must be an order promulgated by a public servant. 2. That, the public servant must have been lawfully empowered to promulgate such order. 3. That, a person having knowledge of such order and directed by such order (a) to abstain, from certain act, or (b) to take certain order with certain property in his possession or under his management, has disobeyed such direction. 4. That, such disobedience causes or tends to cause (i) obstruction, annoyance, or injury, or risk of it, to any person lawfully employed, or (ii) danger to human life, health or safety, or (iii) a riot or affray. 5. In Dault Ram v. State of Punjab (2) AIR 1962 SC 1296 (1) the Supreme Court observed as follows: "It was incumbent on the Tahsildar the public servant, who promulgate the order to present a complaint in writing against the appellant and not leave the Court to be modified by police by putting a charge sheet. This is not a due compliance with the provisions of Section 195. What the section contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore, wrongly assumed by the Court without the complaint in writing of the public servant, viz., the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained." 6. Further, in this case, the offence alleged under Section 188 and 341 IPC were said to have occurred on 7-11-2004 and the charge sheet was filed on 10-4-2006 under Section 468 Cr.P.C. the Court shall not take cognizance of the offence after the expiry of period of one year since the offence, provide punishment not exceeding one year. In the instant case, the charge sheet was filed by the sub-Inspector of Police after the expiry of one year. In the instant case, the charge sheet was filed by the sub-Inspector of Police after the expiry of one year. In any event, the Sub-Inspector of Police cannot be said to be a public servant within the meaning of Section 195(1) of Cr.P.C. since, taking cognizance of the offence is barred under Section 195(1) Cr.P.C. in the absence of any complaint in writing by the public servant, allowing the case to continue on the file of the III Metropolitan Magistrate, Vijayawada is nothing but an abuse of process of Court. 7. For the foregoing reasons, the entire proceedings C.C. No. 236 of 2009 on the file of the III Metropolitan Magistrate, Vijayawada against the petitioner/A-6 are hereby quashed and the criminal petition is allowed.