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Madhya Pradesh High Court · body

2016 DIGILAW 1083 (MP)

Shyam Karan Singh Tomar v. State of M. P.

2016-11-29

ANAND PATHAK

body2016
ORDER 1. Heard with consent finally. 2. The petitioner has preferred this revision under sections 397 and 401 of the Code of Criminal Procedure, 1973 for quashment of the charges framed under sections 188 of IPC and 16(3) and 15 of M.P. Kolahal Niyantran Adhiniyam, 1985 (in short 'the Adhiniyam'). 3. The principal ground raised by learned counsel for the petitioner is that there was no complaint in writing by any authorized officer as mandated by section 195(1) of CrPC for enabling learned Magistrate to take cognizance of offence punishable under section 188 of IPC while in this case directly FIR got registered against the petitioner. Learned counsel for the petitioner has placed reliance on the decisions of the apex Court in the cases of C. Muniappan and others v. State of Tamil Nadu [ (2010)9 SCC 567 ], State of M.P. and another v. Jyotiraditya Scindia [ 2014(I) JLJ 326 ] and in the case of Ashok Agrawal v. State of M.P. [ 2015(I) MPWN 28 = 2015(1) MPHT 270 ]. 4. On the other hand learned counsel for the respondent/State does not dispute the fact that there was no written complaint filed by any of the authorized officers before learned Magistrate and in the present case, FIR directly got registered against the petitioner at Police Station Kotwali, Morena. 5. Heard learned counsel for the parties and perused the record. 6. So far as the charge under section 188 of IPC is concerned, since according to provisions of section 195(1) of CrPC no complaint in writing was filed by any authorized officer and directly the FIR has been got registered at Police Station Kotwali, Morena against the petitioner, therefore, the charge under section 188 of IPC being hit under the mandatory provisions, is hereby quashed. The trial Court erred in framing charges against the petitioner/revisionist in view of the law laid down by the Hon'ble Supreme Court in the matters discussed above. The Hon'ble Supreme Court in the case of C. Muniappan (supra), has laid down the following : 21. The test of whether there is evasion or noncompliance of section 195 CrPC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of a public servant is required. The Hon'ble Supreme Court in the case of C. Muniappan (supra), has laid down the following : 21. The test of whether there is evasion or noncompliance of section 195 CrPC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of a public servant is required. In Basir-ul-Haq and others v. The State of West Bengal [ AIR 1953 SC 293 ], and Durgacharan Naik and others v. State of Orissa [ AIR 1966 SC 1775 ], this Court held that the provisions of this section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in section 195CrPC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it. 22. In M.S. Ahlawat v. State of Haryana and another [ AIR 2000 SC 168 ], this Court considered the matter at length and held as under : "....Provisions of section 195CrPC are mandatory and no Court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section." (Emphasis added) 23. In Sachida Nand Singh and another v. State of Bihar and another [ (1998)2 SCC 493 ], this Court while dealing with this issue observed as under : "7. ..Section 190of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195restricts such general powers of the magistrate, and the general right of a person to move the Court with a complaint to that extent curtailed. It is a well recognised canon of interpretation that provision curbing the general jurisdiction of the Court must normally receive strict interpretation unless the statute or the context requires otherwise." (Emphasis supplied) 24. In Daulat Ram v. State of Punjab [ AIR 1962 SC 1206 ], this Court considered the nature of the provisions of section 195CrPC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. In Daulat Ram v. State of Punjab [ AIR 1962 SC 1206 ], this Court considered the nature of the provisions of section 195CrPC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under : "The cognizance of the case was therefore wrongly assumed by the Court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside." (Emphasis added) 25. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of section 195 CrPC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction. The relevant para of the case of Jyotiraditya Scindia (supra), reads as under:- “It is admitted case of respondent No.3 that FIR No.128 (P3) was registered against the petitioner on 16.6.2005 under section 188 IPC. The petitioner was thereafter arrested and interrogated. After the completion of the investigation, the challan (final report under section 173 of the Code) was presented against the petitioner before learned Chief Judicial Magistrate, Manasa on 20.12.2005 and the charge was framed on 20.1.2006. The petitioner was thereafter arrested and interrogated. After the completion of the investigation, the challan (final report under section 173 of the Code) was presented against the petitioner before learned Chief Judicial Magistrate, Manasa on 20.12.2005 and the charge was framed on 20.1.2006. Further that the case is now fixed for recording of prosecution evidence.” The relevant para of the case of Ashok Agrawal (supra), is reproduced herein below : - “I have gone through the judgment of Hon'ble Division Bench delivered in the case of Jyotiraditya Scindiya (supra), wherein it was held that the offence cannot be registered by police in view of the provisions of section 195 of CrPC under section 188 of IPC The Division Bench also relied upon the principles laid down by the appellate Court delivered in the case of C. Muniappan and others v. State of Tamil Nadu, reported in : [ (2010)9 SCC 567 ], and held that without complaint as defined by section 2 (d) of CrPC, cognizance cannot be taken under section 188 of IPC. Applying ratio of the case of Jyotiraditya Scindiya (supra), I find that cognizance could not be taken by the Magistrate on the basis of FIR registered by police in Crime No.124/2011. The defects cannot be cured merely by a letter by the District Magistrate addressed to the Chief Judicial Magistrate. In such situation, I find that this application filed under section 482 of CrPC deserves to be allowed and the impugned order passed by the learned revisional Court and the Judicial Magistrate are liable to be set aside. Accordingly, this application is allowed. The impugned order passed by the learned revisional Court in Criminal Revision No.76/2014, dated 19.6.2014 and the order passed by the learned Judicial Magistrate in Criminal Case No.2274/2011, dated 11.4.2014 are set aside. The FIR arising out of Crime No.124/2011 registered by Police Station, Station Road, Ratlam under section 188 of IPC is quashed and also the proceedings before the learned Judicial Magistrate in Criminal Case No.2274/2011 are quashed. The present applicant is discharged from the charge under section 188 of IPC.” 7. Perusal of provisions of Adhiniyam make it clear that a holder of a permission or any person in the employment of such holder has authority to use the loud-speaker in their canvassing. The present applicant is discharged from the charge under section 188 of IPC.” 7. Perusal of provisions of Adhiniyam make it clear that a holder of a permission or any person in the employment of such holder has authority to use the loud-speaker in their canvassing. Here, the order dated 13.11.2013 and its corrigendum dated 22.11.2013 (Annexure P-2) colly reveals that the petitioner/revisionist had necessary permission for using the loud-speaker in the area as the said permission was given by the SDM, Sub-Division, Morena. Therefore, no contravention of section 16(3) of the Adhiniyam is made out by the petitioner. His employee/person was using the said loud-speaker as per the permission given by the concerned SDM. Thus, the charge as framed under section 16(3) of the Adhiniyam is not made out. The relevant provisions of Adhiniyam are worth reproduction : “15. Penalty:- (1) Whoever contravenes or attempts to contravene or abets the contravention of any of the provisions of this Act or the rules made thereunder shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. (2) Whoever after having been previously convicted of an offence punishable under subsection (1) subsequently commits and is convicted of an offence shall be liable to twice the punishment which might be imposed on a first conviction under this Act. 16. Power to seize the loud-speaker: (1) Any Police Officer not below the rank of Head Constable may seize the loud speaker used in contravention of the provisions of this Act. (2) Such police officer or any Court before which the loud-speaker is produced may release it in favour or any person, claiming to be entitled to possession thereof on his executing a bond with or without sureties to the satisfaction of the police officer or the Court, as the case may be, undertaking to produce the loud-speaker whenever called upon to do so. (3) A holder of a permit or any person in the employ of such holder and acting on his behalf who fails to produce such permit on the demand of such police officer shall be punished with imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees or with both.” 8. The revision at the behest of petitioner is maintainable in view of the law laid down by the Division Bench of this Court in the matter of State of Madhya Pradesh v. Khizar Mohammad and others [ 1997(1) JLJ 99 = 1996 MPLJ 1007 ]. 9. Conclusively, the petitioner stands discharged for the alleged offences under section 16(3) of the Adhiniyam and section 188 of IPC. 10. The revision stands allowed.