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Madhya Pradesh High Court · body

2015 DIGILAW 102 (MP)

Preetam Lodhi v. State of M. P.

2015-01-28

SUSHIL KUMAR GUPTA

body2015
ORDER 1. This petition has been filed under section 482 of the Code of Criminal Procedure, 1973 for quashing the FIR registered at Crime No.689/14 for the offence punishable under section 188 of IPC at Police Station, Bahodapur, District Gwalior. 2. As per prosecution case, on 15.8.2014 the SHO Bahodapur on receiving the information about the jam when reached at Central Jail, Gwalior, along with force, he saw that applicant was making glorification of himself from his 50-60 supporters by garlanding and sloganeering. Applicant and his supporters made sloganeering for about half an hour and created a law and order problem by obstructing the traffic by their vehicles. Thereafter, they in the form of rally proceeded towards Shinde Ki Chhawani. As per the order of D.M. Gwalior dated 18.7.2014 on the aforesaid date the provisions of section 144 of CrPC were in force and without permission any kind of procession, rally etc. was absolutely prohibited. As such, the applicant and his supporters have committed breach of section 144 of CrPC which is punishable under section 188of IPC. 3. Learned counsel for the petitioner submitted that FIR has been registered against the petitioner against the settled principles of law. It is further submitted that petitioner did not disobey any prohibitory order and the cognizance under section 188 of IPC can be taken only on the basis of written complaint of a public servant concerned. As per the provisions of section 195(1)(a)(i) of CrPC even Court cannot take cognizance of offence under section 188 of IPC without a written complaint of the concerned public servant. On these grounds, learned counsel for the petitioner prays for quashment of the FIR. 4. Per contra, learned Panel Lawyer for the State opposes the submissions advanced by learned counsel for the petitioner and prays for dismissal of the petition. 5. Heard learned counsel for the parties and perused the record. 6. From perusal of the FIR, it appears that it has been registered by the SHO, Bahodapur, himself without any written complaint of the concerned public servant. 7. The relevant provision of section 195(1)(a)(i) of CrPC reads thus : “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) ...... (iii) ........ 7. The relevant provision of section 195(1)(a)(i) of CrPC reads thus : “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) ...... (iii) ........ except on the complaint in writing of ‘the public servant concerned’ or of some other public servant to whom he is administratively subordinate.” 8. The Hon’ble apex Court in State of U.P. v. Mata Bhikh and others [ (1994)4 SCC 95 ], in paras 6 and 7 observed as under : “6. The object of this section is to protect persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein. The provisions of this section, no doubt, are mandatory and the Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing of ‘the public servant concerned’ as required by the section without which the trial under section 188 of the Indian Penal Code becomes void ab initio. See Daulat Ram v. State of Punjab [1962 Supp (2) SCR 812]. To say in other words a written complaint by a public servant concerned is sine qua non to initiate a criminal proceeding under section 188 of the IPC against those who, with the knowledge that an order has been promulgated by a public servant directing either ‘to abstain from a certain act, or to take certain order, with certain property in his possession or under his management’ disobey that order. Nonetheless, when the Court in its discretion is disinclined to prosecute the wrongdoers, no private complainant can be allowed to initiate any criminal proceeding in his individual capacity as it would be clear from the reading of the section itself which is to the effect that no Court can take cognizance of any offence punishable under sections 172 to 188 of the IPC except on the written complaint of ‘the public servant concerned’ or of some other public servant to whom he (the public servant who promulgated that order) is administratively subordinate. 7. 7. A cursory reading of section 195(1)(a) makes out that in case a public servant concerned who has promulgated an order which has not been obeyed or which has been disobeyed, does not prefer to give a complaint or refuses to give a complaint then it is open to the superior public servant to whom the officer who initially passed the order is administratively subordinate to prefer a complaint in respect of the disobedience of the order promulgated by his subordinate. The word ‘subordinate’ means administratively subordinate i.e. some other public servant who is his official superior and under whose administrative control he works.” 9. In the present case also, if the petitioner has disobeyed or violated the prohibitory order of the District Magistrate, Gwalior, then only District Magistrate has a right to file a complaint in writing against the petitioner. 10. From the bare perusal of the aforesaid provision of law under section 195(1)(a)(i) of CrPC and in the light of dictum of Hon’ble apex Court in Mata Bhikh and others (supra), undoubtedly the law does not permit taking cognizance of any offence punishable under section 188 of IPC unless there is a complaint in writing by competent public servant. In the present case, no such complaint has been filed. 11. Consequently, the FIR registered at Crime No.689/14 for the offence punishable under section 188 of IPC at Police Station, Bahodapur, Distt. Gwalior, deserves to be and is hereby quashed. .............