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Madhya Pradesh High Court · body

2014 DIGILAW 273 (MP)

Prashant Chauhan v. State of M. P.

2014-03-06

B.D.RATHI

body2014
ORDER 1. By invoking the extra-ordinary jurisdiction of this Court, petitioner has preferred this petition under section 482 of Code of Criminal Procedure, 1973 (in short ‘the Code’) seeking quashment of order dated 5.11.2012 passed by learned Judicial Magistrate First Class, Gwalior whereby the cognizance for the offence under section 188 of Indian Penal Code, 1860 (in short ‘IPC’) has been taken against the petitioner. The basis of challenge to the order of cognizance dated 5.11.2012 is that trial Court could not take cognizance on the basis of charge-sheet submitted by police. 2. The brief facts in narrow compass are that one written complaint was made by Block Development Education Officer (Mr.S.K. Dwivedi) to the Police Station Padav District Gwalior stating that District Magistrate has issued an order bearing No.Q/reader-ADM/School Education/9-18.1.2012 dated 17.1.2012 to the effect that all the schools which are either affiliated with the Central Board of Secondary Education or with M.P. Board of Secondary Education shall follow the instructions enumerated in that order itself. In this order, there were clear and specific directions in regard to maintaining the record of sale/availability/display of books, copies, stationaries and uniform etc. for all classes related to the schools. In the complaint, the Block Development Education Officer alleged that when the inspection of petitioner’s school was made by Smt. Vidisha Mukherji SDM Gwalior she found that Sant Chinmay Public Pvt. School is violating the directions contained in para 2 of the order of District Magistrate which prescribes with regard to availability books at eight shops and providing of list of books and seller to the Additional District Magistrate/District Education Officer prior to starting of academic session. Further irregularity in relation to uniform has also been found in the aforesaid inspection. On these violations to the order of District Magistrate, Gwalior request has been made to register the FIR against the petitioner. 3. Prior to making complaint to the Police Station Padav Gwalior on the basis of inspection report dated 28.3.2012, a show cause notice dated 31.3.2012 was issued upon the petitioner by the District Magistrate to show cause why the recognition of the school be not cancelled and why the proceedings under section 188 of IPC be not initiated against him for violating the order of District Magistrate, Gwalior. In reply to the said show cause notice, petitioner has refuted all the irregularities alleged to have been committed in the inspection report and tendered his unconditional apology with regard to following the instruction in future without any fail with full rigor. 4. After receiving the written complaint submitted by Block Development Education Officer (Mr. S.K. Dwivedi), Police Station Padav District Gwalior has registered Crime No.199/12 for the offence punishable under section 188 of IPC and after completion of investigation, charge -sheet was filed before learned trial Court and thereafter by impugned order dated 5.11.2012 cognizance for the offence under section 188 of IPC has been taken against the petitioner. 5. Learned counsel for the petitioner submitted that as per the provisions of section 195(1)(a)(i) of the Code, no Court shall take cognizance of any offence punishable under sections 172 to 188 of IPC except on the complaint in writing of public servant concerned. In this case neither the complaint was made by the District Magistrate nor it has been made by any authorized officer, therefore, cognizance could not have been taken. In this way, the procedure prescribed under section 195 of the Code has been subsided, therefore, by allowing this petition, the order of cognizance may be quashed. 6. Combating the submissions of petitioner’s learned counsel, learned Public Prosecutor submitted that written complaint was made by an authorized officer -Block Development Education Officer on behalf of District Magistrate and on that basis FIR was registered, therefore, rightly the cognizance has been taken by learned trial Court and no flaw persist in that order, hence the instant petition filed by the petitioner deserves dismissal. 7. Having regard to the arguments advanced by learned counsel for respective parties, entire material available on record has been perused. 8. The admitted and uncontroverted position is that Crime No.199/12 was registered at Police Station Padav, District Gwalior only on the basis of written complaint made by Block Development Education Officer and after completion of investigation, chargesheet was filed by the police for the offence punishable under section 188 of IPC. Before parting with the provisions of section 195(1)(a)(i) of the Code, it would be apt to quote this provision: “195. Before parting with the provisions of section 195(1)(a)(i) of the Code, it would be apt to quote this provision: “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 or. (ii) xx xx xx (iii) xx xx xx except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.” 9. Now for the purpose of establishing the meaning of “complaint”, it would be appropriate to quote the definition of complaint which is given in section 2(d) of the Code: “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report”. 10. From bare perusal of this provision, it is clear that the complaint should be made orally or in writing directly to the Magistrate and not to the police. In the case in hand, though the complaint was made but it was not made directly to the Magistrate, it was addressed to the Station House Officer, Police Station, Padav District Gwalior and on that basis crime was registered, therefore, it is crystal clear that cognizance was taken by learned trial Court, overlooking the provisions of section 195(1) (a)(i) of the Code. 11. There is no dispute that petitioner has been subjected to prosecution for the alleged commission of offence punishable under section 188 of IPC. It is also not in dispute that the allegation against the petitioner is that he has disobeyed the order/instructions issued by District Magistrate, Gwalior in relation to availability of books, uniform and stationaries at eight shops and providing the list of books as per syllabus and sellers to the Additional District Magistrate/District Education Officer prior to starting of academic session. section 195 of the Code 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 of the Code 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) and (b), except in the manner provided therein. The provisions contained in sub-section (1) are mandatory in nature and are not directory. The statutory mandate prohibits taking of cognizance except in the manner provided therein. 12. So far as commission of offence under section 188 of IPC is concerned, the provisions contained in clause (a) are applicable which mandate that no Court shall take cognizance of the offence punishable under section 188 of IPC, except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. Thus, the Court is prohibited from taking cognizance of the offence punishable under section 188 of IPC except when the complaint in writing is made by the concerned public servant. The statutory scheme with regard to cognizance of commission of offence under section 188 of IPC is that complaint has to be filed before the Magistrate concerned having territorial jurisdiction either by the concerned public servant, whose order is alleged to have been disobeyed or by any other public servant to whom, the concerned public servant is administratively subordinate. 13. This being so, the aforesaid discussion makes it clear that for the offence under section 188 of IPC without complaint filed directly to the Magistrate, Court cannot take cognizance, therefore, on police report the trial Court was not obliged to take cognizance of the offence. 14. In view of the above cumulative reasons and the propositions of law discussed above, the petition filed by the petitioner is allowed. FIR registered at Crime No.199/2012 at Police Station Padav, District Gwalior is hereby quashed and the impugned order dated 5.11.2012 passed by learned trial Court in Criminal Case No.10818/2012 whereby the cognizance for the offence punishable under section 188 of IPC was taken, is also quashed. 15. Copy of the order be sent to the trial Court for information and necessary compliance.