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2024 DIGILAW 796 (TS)

Shaik Shadullah v. State of Telangana

2024-09-23

K.SUJANA

body2024
ORDER : (K. Sujana, J.) : This Criminal Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita (for short ‘BNSS’) to quash the proceedings against the petitioners/accused Nos.1 to 4 in C.C.No.78 of 2020 on the file of the learned I Additional Judicial Magistrate of First Class, Nizamabad, registered for the offences punishable under Sections 341, 186 and 506 of the Indian Penal Code, 1860 (for short ‘IPC’). 2. The brief facts of the case are that respondent No.2- Head Constable of II Town Police Station, Nizamabad, registered the case against the petitioners stating that on receipt of information from SB Control that PFI (Popular Front of India) party meeting will take place in the II-Town area, he proceeded to Quilla Road in Nizamabad to gather relevant information. It is further asserted that the petitioners approached respondent No.2, obstructed his legitimate duties and threatened with dire consequences and questioned, why you are enquiring about us, therefore, a complaint was lodged against the petitioners and the same was numbered as Crime No.91 of 2019 for the offences punishable under Sections 341, 186 and 506 of IPC. After completion of investigation, the Police filed charge sheet, vide C.C.No.78 of 2020, before the learned I Additional Judicial Magistrate of First Class, Nizamabad. 3. Heard Sri Shaik Muhammed Abed, learned counsel appearing on behalf of the petitioners as well as Sri D. Arun Kumar, learned Additional Public Prosecutor appearing on behalf of the respondents. 4. Learned counsel for the petitioners submitted that the allegations leveled against the petitioners are vague and baseless and that the ingredients in the charge sheet do not constitute any offence. He further submitted that since there is a bar under Section 195 (1) (a) of Cr.P.C, that when the complaint is not made by the public servant/authorized officer in written, the same cannot be treated as the offence punishable under Section 186 of the I.P.C. Learned counsel further submitted that the prime offence was under Section 186 of IPC and Section 195 of Cr.P.C bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C., therefore, the whole proceedings are without jurisdiction. Hence, he prayed the Court to quash the proceedings against the petitioners. 5. On the other hand, learned Additional Public Prosecutor submitted that the petitioners have also been charged for the offences other than Section 186 of IPC. Hence, he prayed the Court to quash the proceedings against the petitioners. 5. On the other hand, learned Additional Public Prosecutor submitted that the petitioners have also been charged for the offences other than Section 186 of IPC. Hence, the learned Magistrate has rightly taken cognizance of the aforesaid offences, on the basis of the final report submitted by the Police. As such, the proceedings cannot be vitiated. Under such circumstances, the cognizance taken by the learned Magistrate, cannot be said to be one without authority of law. Therefore, he prayed the Court to dismiss the criminal petition. 6. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, it appears that the petitioners were charged for the offences punishable under Section 186, 341 and 506 of IPC. It is specifically contended by the learned counsel for the petitioners that as there is a bar under Section 195 (1) (a) of Cr.P.C., whereunder, a written complaint has to be filed by the public servant/authorized officer, the Police has to follow the same, but the same is not followed in the present case. Further, at this stage, it is imperative to note the relevant Sections, which are as follows: 7. Section 188 of the I.P.C reads as follows: Section 188: Disobedience to order duly promulgated by public servant. 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 persons 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 tends 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. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section”. 8. Section 195(i) (a) of Cr.P.C., reads as under:- “(i) (a) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), 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;” 9. Reverting to the facts of the case on hand, a perusal of Section 186 of IPC makes clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. Further, Section 2 (d) of Cr.P.C., defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint, the Magistrate can take cognizance under Section 190 (1)(a) of Cr.P.C.. Thereafter, the procedure prescribed under Section 200 of Cr.P.C has to be followed. Therefore, the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction. 10. Further, it is significant to note the judgment of the Honourable Supreme Court in State of Karnataka v. Hermareddy, AIR 1981 SC 1417 , wherein in paragraph No.8, it is held as under: “8. Therefore, the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction. 10. Further, it is significant to note the judgment of the Honourable Supreme Court in State of Karnataka v. Hermareddy, AIR 1981 SC 1417 , wherein in paragraph No.8, it is held as under: “8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 196 (1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 196 (1)(b) of the Code of Criminal Procedure should be upheld” (Emphasis supplied) 11. In the instant case, a perusal of the charge sheet discloses that the petitioners are sought to be prosecuted for the offence punishable under Section 186 of IPC including other penal provisions i.e., 341 and 506 of IPC. As per the judgment of the Hon’ble Supreme Court in Hermareddy (supra) it is clear that if the offences formed part of the same transaction of the offences contemplated under Section 191 of Cr.P.C., it is not possible to split up and hold the prosecution of accused for the other offences. In view of the above, the FIR culminating in taking cognizance of the aforesaid offences stands vitiated. Hence, continuation of criminal proceedings against the petitioners is nothing but abuse of process of law. 12. Accordingly, the criminal petition is allowed and the proceedings against the petitioners in C.C.No.78 of 2020 on the file of the learned I Additional Judicial Magistrate of First Class, Nizamabad, are hereby quashed. Miscellaneous applications, if any pending, shall also stand closed.