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Madhya Pradesh High Court · body

2016 DIGILAW 338 (MP)

Sunita Sullere v. State of M. P.

2016-04-27

S.C.SHARMA

body2016
ORDER 1. The petitioner before this Court, a Doctor by profession is aggrieved by registration of first information report i.e., FIR No.30/2015 registered against the petitioner at Police Station, Sanyogitaganj, Indore. 2. The contention of the learned Counsel for the petitioner is that the petitioner is a Radiologist working at Unique Diagnostic Centre since 2007 and the propertor and the owner of the said centre is Dr. D.S. Chhabra. The owner and proprietor was having a license issued under section 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. 3. It has been further stated that on 29.12.2014 an inspection was carried out by the District Supervisory Committee and certain irregularities were noticed in respect of the Diagnostic Centre and an order was passed on 9.1.2015 by the Collector who is the appropriate authority under the Act of 1994. The petitioner has further stated that the order dated 9.1.2015 was challenged by Dr. D.S. Chhabra before this Court by filing a writ petition and the same was registered as Writ Petition No.380/2015. This Court by an order dated 22.1.2015 has set aside the order of the competent authority dated 9.1.2015. The aforesaid facts are undisputed facts. 4. The petitioner’s contention is that the FIR has been registered for an offence arising out of the same incident dated 29.12.2014 and the police is having no jurisdiction to register an FIR for offence under section 188 of the IPC. It has been further stated that the authority whose order has been violated has to take action in the matter. It has been further stated that the authority whose order has been violated has to lodge the FIR. 5. Learned Counsel for the applicant has placed reliance upon a judgment delivered by the Division Bench of this Court in the case of State of M.P. and another v. Jyotiraditya Scindia, reported in 2014(1) JLJ 326 . She has also placed reliance upon a judgment delivered by this Court in the case of Ashok Agrawal v. State of M.P. in Miscellaneous Criminal Case No.5306/2014 decided on 28.11.2014 [ 2015(I) MPWN 28 ], and in Miscellaneous Criminal Case No.1021/2016 Omprakash v. State of Madhya Pradesh decided on 11.3.2016 [ 2016 (II) MPWN 39 ], and her contention is that in similar circumstances FIR has been quashed in respect of an offence under section 188 of the IPC. 6. 6. She has also argued before this Court that in respect of offences under sections 23 and 25, again a complaint has to be made by an appropriate authority and in the present case complaint has not been lodged by the appropriate authority as offence has been committed under the Act of 1999 and therefore, the entire FIR deserves to be quashed. 7. Learned Government Advocate has vehemently opposed the prayer for quashment of FIR. He has argued before this Court that the ingredients of section 188 of the IPC read with sections 23 and 25 of the Act of 1994 are made out and the question of interference at this stage by this Court does not arise. He has stated that there is ample material available in the case diary and the question of interference by this Court does not arise. 8. Heard learned Counsel for the parties and perused the record. 9. Section 188 of the IPC reads as under :- Disobedience to order duly promulgated by public servant -- 188. Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation -- It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section. 10. Section 28 of the Act of 1994 reads as under : 28. Cognizance of offences - (1) No Court shall take cognizance of an offence under this Act except on a complaint made by -- (a) the appropriate authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the appropriate authority; or (b) a person who has given notice of not less than thirty days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the Court. Explanation -- (1) For the purpose of this clause, “person” includes a social organisation. (2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of sub-section (1), the Court may, on demand by such person, direct the appropriate authority to make available copies of the relevant records in its possession to such person. 11. The judgment delivered by this Court in the case of Ashok Agrawal by the learned Single Judge in paragraphs 2, 3 and 4 reads as under : 2. The facts necessary for disposal of this application are that on 29.8.2011, a charge-sheet was filed under section 188 of IPC on the ground that the present applicant promulgated the order passed by the District Magistrate under section 144 of CrPC and in violation of the order, he sold text-book and notebook. By the impugned order dated 11.4.2014, the learned Judicial Magistrate considered the charge-sheet and the objection raised by the present applicant that without any complaint filed by the District Magistrate, cognizance cannot be taken by the Magistrate under section 195 of CrPC. By the impugned order dated 11.4.2014, the learned Judicial Magistrate considered the charge-sheet and the objection raised by the present applicant that without any complaint filed by the District Magistrate, cognizance cannot be taken by the Magistrate under section 195 of CrPC. The learned Courts below observed that the District Magistrate Rajendra Sharma addressed a letter dated 23.8.2011 to the Chief Judicial Magistrate, Ratlam and it was expected in the letter that the Court would take cognizance of the offence. Placing reliance on the judgment of Hon’ble Division Bench of this Court delivered in the case of State of M.P. and another v. Jyotiraditya Scindia, reported in 2014(1) JLJ 326 , the case of the present applicant before the lower Court was that the cognizance under section 188 of IPC cannot be taken on charge-sheet filed by the police and can be taken only on the complaint filed by the District Magistrate whose order was disobeyed. However, the revisional Court observed that in none of the cases cited by the present applicant before him , the complaint as was present in the form of letter dated 23.8.2011 was present, and therefore, the revisional Court observed that due to the letter dated 23.8.2011, the impugned order passed by the learned Judicial Magistrate was legal and no interference is called for. Under that premise, the revision was dismissed. 3. I have gone through the judgment of Hon’ble Division Bench delivered in the case of Jyotiraditya Scindia (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 Scindia (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. Applying ratio of the case of Jyotiraditya Scindia (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. 4. 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. With the aforesaid observations and the directions, present application stands disposed of. C.c. as per rules.” 12. The controversy involved in the present case has already been considered in the aforesaid case and in similar circumstances the FIR has been quashed by this Court and therefore, in light of the judgment delivered by this Court in the aforesaid case and keeping in view the section 28 of the Act of 1994, this Court is of the considered opinion that the FIR lodged in the matter deserves to be quashed and is accordingly quashed.