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2023 DIGILAW 537 (JHR)

Ravi Shankar Vidyarthi v. State of Jharkhand

2023-04-19

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : 1. Heard Mr. Onkar Nath Tiwary, learned counsel for the petitioner and Mr. V.S. Sahay, learned counsel for the State. 2. The present petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 15.06.2011 passed in connection with G.O.C.R. No. 154 of 2006, corresponding to T.R. 840 of 2013 whereby the learned court has been pleased to take cognizance under sections 182 and 211 of the Indian Penal Code against the petitioner, pending in the Court of learned Chief Judicial Magistrate, Deoghar. 3. Mr. Onkar Nath Tiwari, learned counsel for the petitioner submits that the petitioner has lodged the F.I.R. against two accused persons on the instruction of Additional Collector, Deoghar and the said case was investigated by the police in which final form was submitted showing the case untrue and recommendation was made for prosecution against the petitioner under section 182/211 of the I.P.C. He further submits that the final form was accepted by the learned court and without issuing any notice to the petitioner cognizance has been taken. He further submits that no opportunity was provided to the petitioner and cognizance has been taken which is against the mandate of law. 4. Mr. V.S. Sahay, learned counsel for the State submits that the police has recommended for prosecution under section 182/211 of I.P.C. against the petitioner that is why the learned court has taken cognizance. 5. In view of above submission of the learned counsel for the parties the Court has gone through the materials on record and finds that admittedly Degohar Town P.S. Case No. 295 of 2005 was lodged by the petitioner against two accused persons under various sections of I.P.C. The said case was investigated by the police and final form was submitted stating that the case was found to be false and recommendation was made for prosecution under section 182/211 of I.P.C. against the petitioner. It is an admitted fact that the petitioner has filed the case under official capacity while he was posted as Circle Officer, Deoghar. There is no whisper of any allegation that the petitioner in any manner disobeyed the order of any public servant and in that view of the matter Section 195 (1)(a) of the Cr.P.C. speaks that only on the complaint such case can be entertained. There is no whisper of any allegation that the petitioner in any manner disobeyed the order of any public servant and in that view of the matter Section 195 (1)(a) of the Cr.P.C. speaks that only on the complaint such case can be entertained. Complaint has been defined under section 2(d) of the Cr.P.C. Under section 190 for the offence punishable under sections 172 to 188 of I.P.C. provision was made herein under section 195 of the Cr.P.C. and without following that procedure the cognizance has been taken against the petitioner. This aspect of the matter has been considered by the Hon’ble Supreme Court in the case of “C. Muniappan & Others Vs. State of Tamil Nadu” reported in (2010) 9 SCC 567 wherein para 33, 34 and 35 the Hon’ble Supreme Court has held as under:- “33. Thus, in view of the above, the law can be summarised 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 with 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. 34. The learned counsel for the appellants have submitted that as no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, the entire prosecution case falls. 35. Undoubtedly, the law does not permit taking cognizance of any offence under section 188 I.P.C. unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed. Thus, the entire prosecution case falls. 35. Undoubtedly, the law does not permit taking cognizance of any offence under section 188 I.P.C. unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial court to frame a charge under Section 188 I.P.C. However, we do not agree with the further submission that absence of a complainant under Section 195 Cr.P.C. falsifies the genesis of the prosecution case and is fatal to the entire prosecution case”. 6. On conjoint reading of the provision of Section 188 of IPC and Section 195 of Cr.P.C., it is evident that if the alleged offence is punishable under Sections 172 to 188 of IPC, the court cannot take cognizance except on a complaint in writing of the public servant concerned, or some other public servant, to whom he is administratively subordinate. In such peculiar circumstances, no FIR could have been registered for an offence punishable under the said sections. 7. The legislative intention appears to be clear from the language of section 195(1) of Cr.P.C. itself, which categorically prescribes that where an offence is committed under sections 172 to 188 of the I.P.C, it would be obligatory for the public servant before whom such offence is committed, to file a complaint before the concerned Magistrate having jurisdiction to take cognizance of it. 8. Section 211 of I.P.C. is a more serious offence than one punishable under section 182 I.P.C. But to invoke section 211 of I.P.C. a false complaint is to be filed in Court. But under section 182 of I.P.C. there is no such requirement. A false complaint to a police or a public servant is sufficient. So the offence under section 182 and section 211 I.P.C are distinct offences and a persons under section of I.P.C. cannot be alternatively charged under section 211 of I.P.C. In this regard reference may be made to the case of “State of Punjab V. Brij Lal.” (AIR) 1969 SC 355. 9. In view of the aforesaid facts, reasons and analysis, the proceeding against the petitioner is bad in law. 9. In view of the aforesaid facts, reasons and analysis, the proceeding against the petitioner is bad in law. Accordingly, the entire criminal proceeding including order taking cognizance dated 15.06.2011 passed in connection with G.O.C.R. No. 154 of 2006, corresponding to T.R. 840 of 2013 whereby the learned court has been pleased to take cognizance under sections 182 and 211 of the Indian Penal Code against the petitioner, pending in the Court of learned Chief Judicial Magistrate, Deoghar, is hereby quashed. 10. This petition stands allowed and disposed of. Pending I.A., if any, stands disposed of. Interim order is vacated.