JUDGMENT : 1. By this writ application under Article 226 of the Constitution of India, the writ applicant – original accused No. 5, serving as a 'Superintendent' in the Court of the Additional Chief Judicial Magistrate, Kadi, District: Mehsana, has prayed for the following relief’s : “16(A) to allow this application. (B) To quash and set aside the proceeding of Criminal Case no. 860/12 pending before Hon'ble Judicial Magistrate First Class, Kadi qua the petitioner original accused no.5. (C) Pending admission, hearing and final disposal of this petition to stay further proceedings of Criminal Case no. 860/12 pending before Hon'ble Judicial Magistrate First Class, Kadi qua the petitioner original accused no.5. (D) To pass any other and further orders as the authority may deem fit and proper.' 2. It appears from the materials on record that the respondent No.1 herein filed a private complaint in the Court of the Judicial Magistrate First Class, Kadi, without specifying any particular offence alleged to have been committed by the accused persons. However, the sum and substance of the allegations levelled by the respondent No.1 is that of connivance and collusion of the accused persons with each other for the purpose of illegally demolishing the residential house of the complainant. 3. It appears that the Court concerned recorded the verification of the complainant on oath and ordered police inquiry under Section 202 of the Code of Criminal Procedure, 1973. The proceedings came to be registered as the Criminal Inquiry Application No.4 of 2008. The Judicial Magistrate First Class, Kadi, on completion of the inquiry under Section 202 of the Cr.PC., by a reasoned order running in 15 pages, issued process to the accused persons for the offence punishable under Sections 166, 167, 177, 182, 196, 197, 218 and 219 read with 114 of the Indian Penal Code. 4. The order of issue of process culminated in registration of the proceedings as the Criminal Case No. 860 of 2012. 5. It also appears that the writ applicant herein preferred an application Exhibit: 36 in the Criminal Case No. 860 of 2012 with a prayer to discharge him from the prosecution. The Additional Civil Judge and Judicial Magistrate First Class, Kadi, by order dated 10th February 2016, rejected the application Exhibit: 36 holding as under: “1. The accused no.5 in the instance case, has moved this application, seeking his discharge from the case. The Additional Civil Judge and Judicial Magistrate First Class, Kadi, by order dated 10th February 2016, rejected the application Exhibit: 36 holding as under: “1. The accused no.5 in the instance case, has moved this application, seeking his discharge from the case. I have heard Mr. B.D. Pandya, learned advocate for the accused no.5, and Shir Shankarlal Chhaganlal Makwana, the complainant party-in-person, on this application. 2. Shri B.D. Pandya, learned advocate for the accused no.5, submitted that the accused no.5 was appointed as Court Commissioner in Regular Civil Suit No. 283 of 2006 on 16.9.2006, and on 17.9.2006, the Court issued the Commission Patra, and accordingly, the Court Commissioner i.e. the accused no.5 issued the notice to both the parties, the notices were sent through bailiff. He submitted that Ahmedmiya, the defendant therein, was not available when the bailiff went for service of the notice and, therefore, the bailiff made an endorsement that the Sarpanch or Talati could not be found out and, therefore, he returned the said notice unserved. He further submitted that when the Court Commissioner went to the place, th4 property was not in existence. He further submitted that the plaintiff i.e. the complainant herein misled the Court and suppressed from the Court the backside portion of the notice and only produced the front side portion of the said notice. He further submitted that the accused no.5, who was appointed as the Court Commissioner, had no role in the instant case and, therefore, he may be discharged from the case. 3. On the other hand, Shri Shankarlal Chhaganlal Makwana, the complainant party-in-person, submitted that the submission made by Shri Pandya is inconsistent with the record, the Honourable Court has issued the process against the six accused including the present accused on 27.7.2012 after due application of mind. He further submitted that there is no evidence that the complainant had made any encroachment, the complainant is the resident of Nandasan and since last 65 years, he is the legal owner of the property number 386 runs in the record of Nandasan Gram Panchayat. He also submitted that the Gram Panchayat has also collected the assessment tax from time to time from the complainant. He further submitted that the present accused has played very important role in collusion with other accused. Therefore, with these averments, the complainant party-in-person prayed for the rejection of the application. 4. He also submitted that the Gram Panchayat has also collected the assessment tax from time to time from the complainant. He further submitted that the present accused has played very important role in collusion with other accused. Therefore, with these averments, the complainant party-in-person prayed for the rejection of the application. 4. At the outset, it is pertinent to note that this is a private complaint and after the police inquiry under Section 202, my learned predecessor Magistrate issued the process against the six accused including the present on eon 27.7.2012 under Section 204 of the Criminal Procedure Code for the offence punishable under Sections 166, 167, 177, 182, 196, 197, 218, 219 read with Section 114 of the Indian Penal Code. It is further pertinent to note that thereafter the matter has been posted from time to time at the stage of recording pre-charge evidence, however, the complainant has not produced any pre-charge evidence so far. In the meanwhile, the accused no.5 appeared through his advocate and submitted that the present application seeking his discharge from the case. Under these circumstances, a beneficial reference to Sections 244 & 245 of the Cr.P.C. is required to be made hereunder: “244. Evidence for prosecution (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.” “245. When accused shall be discharged (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.” 5. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.” 5. As stated earlier, the case on hand is a private complaint, and therefore, the present application is governed by the provisions of Section 245 of the Code of Criminal Procedure, and after the issuance of process, no pre-charge evidence has been led in the instant case and, therefore, from this point of view, the present application has been filed at a premature stage. Even otherwise, my learned predecessor Magistrate has passed a detailed order, which runs into 15 pages, issuing process against the accused including the present accused and considering the material placed on record, it cannot be said that the charges against the present accused are groundless. Therefore, from that point of view also, the present application is not maintainable. Thus, in view of the above legal position and in view of the facts and circumstances of the present case, this application deserves to the dismissed. Hence, I pass the following order: ORDER : The present application Exh. 36 is hereby dismissed. Pronounced in the open Court on this 10th day of February, 2016.” 6. I take notice of the fact that the order passed by the Court below Exhibit: 36 referred to above has not been made a subject-matter of challenge in this writ application. Mr. Goswamy, the learned counsel appearing for the writ applicant submitted that his client is a Court employee and his duty was only to act as a 'Court Commissioner' in the Regular Civil Suit No.283 of 2006. The learned counsel submitted that the allegations of connivance of the writ applicant herein with the other co-accused is without any substance. It is argued that the writ applicant herein had no good reason to collude with the other co-accused for the purpose of demolition of the residential house of the complainant. 7. In such circumstances referred to above, Mr. Goswamy, the learned counsel appearing for the writ applicant prays that there being merit in this application, the same be allowed and the proceedings be quashed so far as the writ applicant is concerned. 8. 7. In such circumstances referred to above, Mr. Goswamy, the learned counsel appearing for the writ applicant prays that there being merit in this application, the same be allowed and the proceedings be quashed so far as the writ applicant is concerned. 8. On the other hand, the respondent No.1 – original complainant, appearing in person, has vehemently opposed this writ application and submitted that, the writ applicant colluded with the other co-accused and deliberately did not serve the notice for carrying out the commission, as ordered by the Civil Court, and taking advantage of the same, the other co-accused, who are also public servants, very highhandedly, demolished his residential house. The complainant appearing in person further pointed out that the discharge application filed by the writ applicant also came to be rejected and such order has not been challenged. 9. In such circumstances referred to above, the complainant submitted that there being no merit in this writ application, the same be rejected. 10. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the complaint and the order of process should be quashed so far as the writ applicant herein is concerned. 11. The Court below issued process for the offence punishable under Sections 166, 167, 177, 182, 196, 197, 218 and 219 read with 1114 of the Indian Penal Code. Section 195 of the Cr.P.C. reads as under: “195. Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence. The Court below issued process for the offence punishable under Sections 166, 167, 177, 182, 196, 197, 218 and 219 read with 1114 of the Indian Penal Code. Section 195 of the Cr.P.C. reads as under: “195. Prosecution for contempt of lawful authority of public servant, 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) of any abetment of, or attempt to commit, such offence, or (iii) 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; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.]” 12. The plain reading of Section 195(1)(a) of the Cr.P.C. makes it clear that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the I.P.C., except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. 13. So far as the case on hand is concerned, the process has been issued for the offence punishable under Sections 177 and 182 of the I.P.C. Both these offences are to be found in Section 195(1)(a)(i) of the I.P.C. Indisputably, the complaint has not been lodged by a public servant. 13. So far as the case on hand is concerned, the process has been issued for the offence punishable under Sections 177 and 182 of the I.P.C. Both these offences are to be found in Section 195(1)(a)(i) of the I.P.C. Indisputably, the complaint has not been lodged by a public servant. Besides the same, the process has also been issued for the offence punishable under Section 196 of the I.P.C. Section 196 of the I.P.C. is to be found in Section 195(1)(b)(i) of the Cr.P.C. Section 195(1)(b)(i) makes it clear that no Court shall take cognizance of any offence punishable under Sections 193 to 196 of the I.P.C., when such offence alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in that behalf or of some other Court to which that Court is subordinate. 14. The Court below needs to look into Section 195 of the Cr.P.C. and take an appropriate decision whether the complaint would be maintainable, at the instance of the complainant, who is a private individual, and not a public servant. This aspect needs to be kept in mind. Keeping this aspect in mind, the Court should proceed further with the hearing of the complaint. Let this issue be decided first and an appropriate order be passed in accordance with law. 15. With the above, this writ application is disposed of. Direct service is permitted. Rule is discharged. Ad-interim order earlier granted stands vacated.