Hyderabad High Court · 2025

1. '[ire State of Telangana, through S.H.O. Koc,imial p.S., rep. by its public plosecutor, High Court of Judicature at Hyderabad, and one other. ...respondents @: o.,.r"fnts criminal Petition is filed with the foflowing "to quash &. .p1-o""_"dings in C.C.No. Z93 of 2o2o on the fire of Horr,6i"-iiiair. Judicial Firsr Class Magistrate 1lJagtial, oii;;;." U/Sec. i88, :11,39: r/w 34 -rec,Is a[ii"?'rn" petitioner nerern and pass...n " 2 Heard Mr. R.Giri Kumar, learned counsel petitioner/accused and Mr. E.Ganesh, learned Assistant Public Prosecutor for respondents. 3. There is no written complaint on record. F.I.R. be:aring No.g9 of 2o2),-4gt.d 04.06.2020, came to be registered for offences under Sections 1gg, 2gS and 341 2 JAK,J crlp_1200-021 read with section 34 of the Indian Penal Code, 1860 (for short 'IPCJ. Complainant/informant is Sub-Inspector of Police (one Mr. S.Shiva Krishna) of Kodimial Police Station as per the FIR. It is alleged that on 04.O6.2O2O, between 1O-OO hours

4. to 10:30 hours, at Pudur X Roads, accused Nos- 1 to 5, members of a National Part5r, gathered on the Pudur National Highway, wrongfully restrained public by sitting/squatting on the road. They burnt a bogle (Disti Bomma) of Government protesting the house arrest of a Member of Legislative Council, (Mr. Jeevan Reddy), by disobeying the promulgation orders of covid-19, without maintaining physical distance and wrongfully restrained the public. A charge sheet calne to be filed on the frle of II Additional Judicial First Class Magistrate at Jagtial'

5. The suo motu complaint lodged by the complainant/informant and the officer vrho filed the charge sheet are one and the same i.e., iitlr. S.Shiva I(rishna, Sub- Inspector of Police, Kodimial. n 7'" , j-.r 3 JAK,J crlp_1200J021

6. Learned counsel appearing on behalf of petitioner invitr:d. the attention of this Court to Page Nos.10, 12 and 13 of material papers and submitted that the complainant/informant and the officer who filed the charge sheeL before the II Additional Judicial First Class Magistrate at Jagtial after investigation are one and same and the same is impermissible in law.

7. L,earned counsel invited the attention of this Court to Paragraph No.25 of tJ.e Judgment of the Hon'ble Apex Court in Mohanlo,l a, Sto:te of Punidb (Criminal Appeal No.1880 of 2011) and contended that the proceedings are to b,: quashed as the complainant and the investigating officr:r cannot be the sarne and it would be in violation of the law laid down by the Honble Apex Court.

8. Placing reliance on the contents of Paragraph No.25, it is submitted that a fair investigation necessarily requires that comptainant/informant and investigating officer must not be the sarne person. That, this being the law, the comclaint/FlR/charge sheet cannot sustain. It is further contended that on a perusal of the contents of the FIR, the "'."',1 --"-: :i-'-+:.!??T? R 4 JAK,J crlp-1200 2021 offences und,er Sections 188, 285 and 341 read with' 34 of Ipc are not made out. It is also submitted that the ingred.ients of the Sections charged are not made out from the FIR g. On a query by this Court that no complaint copy ts made available. Learned. Assistant Public Prosecutor appearing for respondent-State requested time to produce a photo copy of general diary of the Police Station' Kodimiat. A photo copy of the General Diary is placed on record. At S1.No.7 (at 11:30 hours), a General Diary entry is made in the Police Station, signed by Sub-Inspector of Police on 05.O6 -2O2O, entry is dated 04'06'202O by the officerwhocomplainedi.e.,S.ShivaKrishnaarrdalsothe Sameofficerhasconductedtheinvestigation.Entryisin Telugu. l0.Theothergroundurgedisthatforanoffenceunder Section 188 of IPC to get attracted' the procedure prescribed and mandated und'er Section 195 of Code of Criminal Procedure, !973, (for short "Cr'P'C") needs to be followed. 't .- ,-X.,-?Ff. j 7 ; : i : : l . ! i : ! a ! i , I , : i I I t: i! i I I I I I I I 5 JAK,J crlp_1200 2021

11. It is pertinent to extract the contents of Section 195 of CI.P.C. The Section speaks of offences punishable under Sections I72 to 188 of IPC. Section 195 of Cr.P.C. is as follo'vs: "195. Prosecution for contempt of lawful authority of public senrants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizernce- (a) (i) of any offence punishable under sections 772 to 188 (both inclusive) of the Indian Penal Code, (45 of 186O), 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 (45 of 1860), narnely, sections 193 to 196 (both inclusive), L99,2OO,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 behall or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (U any authorigr to which he is administratively subordinate may order the withdrawal of the complaint and send a -:t: 6 JAK,J crlp-1200 2021 copy of such order to the Court; and upon its receipt ii'it"-c."t,, no further proceedings shall be taken on the comPlaint: Provided that no such withdrawal shall be ordered if tit" tti"f in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1)' the term "Courf means a Civil, n*""" or iti*it'"t Court' and includes a tribunal constituted by or under a central' provincial or state-Act if declarea uy ttrat Act to be a Court for the purposes of this section' (4) For the purposes of clause (b) of.sub-section (1)' a b;;ti shalt be aee*ea to be subordinate to the Court lJnarily lie from tl:e appealable to which "pp"a" former Court' or in the decrees or sentenc"" of "l'ct' whose decrees no appeal case of a civil c;;-it;; ordinarily lies, to the Principal Court having or$jryV orisinal civil jurisdiJo" witfrin whose local jurisdiction "rJtt Provided that- 6iwh; appeals lie to more than one court' the jurisdiction shall be the Appeltate Court of Co"ti shall be deemed to be Court to which """n subordinate; 1U1-*t "t" appeals lie to a Civil and also to a Revenue Court, such Couri"n'ff be deemed to be subordinate i" Ur" Civil or Revenue Court according to th9 l3t".t" of the case or p'o"*Jitg in connection with which the altegld to havJbeen committed'" ;if;;i" 12. On a perusal of Section 195 Cr'P'C'' it is apparent that a complaint in writing has to be made to the Court' Complaint is d'efined' und'er Section 2(d) Cr'P'C'' and the Ci.rit Court is situate: -ittf"tiot same is as follows: 'complaint" means any allegation made orally or in writing to . fvta.gistratel with a view to his under this Code' that some person' l-*r* whether known ot uttttt'own' has committed an offence, but does not include a police report'" "&on 1 I I ! I i i I I 7 JAK,J crlp_tZO|J02t

13. Sr:ction 195(1)(a)(i) of Cr.P.C. prescribes a procedure to be followed for cognizance of offences under Sections 172 to 188 of IPC. This procedure needs to be followed. L4. The Hon'ble Apex Court while dealing with Section 195 Cr.P.C., in Deoendra Kumo;r a. The Stotrn (NCT oJ Delhi) and anotlter, at Paragraph Nos.4l, 42 & 43, held as follows: "41. While deciding whether the distinct offences can ']e split up, courts must remain circumspect. It is rrgreed that, the law is not that once the facts of a ;3iven case disclose an offence falling within the scope ,rf Section 195 Cr. P.C. and a.lso other offences, crosecution can be launched regarding the latter only apon the complaint of the court or the lawfully .authority concerned. To hold otherwise would be tL :xtend the scope of Section 195 Cr. p-C. to regions and horizons not contemplated by the legislature. The facts in a case may give rise to distinct offences including oflences against the auttrority of public servants oi against public justice, as also offentes against private individuals; the bar under Section 195 oi the C-r. p.C. cannot, in such circumstances, affect the offences other than those against public authority or public iustice. Prosecution for such other offences dois not require the instrumentality of the public authority or court. However, the position may be different when during the course of the same transaction offences falling within the two categories are committed. In such cases, it may not be possible to split up the transaction, and to hold that there can be valid prosecution for offences not mentioned in Section 195 of the Cr. P.C., without the written complaint of the public authority or the court, as the case may be. Courts must be able to see through any attemit to I 2025 SC3 ont.,ine sc 1?53 8 JAK,J crlp_1200_JO2l render Section 195 of the Cf. P.C. nugatory by hiding the real nature of the transaction by verbal jugglery. ti in principle and substance the offenc. atte[ea iaUs within the categories mentioned in Section i9S, th. operation of the bar cannot be avoided; if in essence the alleged offence falls outside the categories, the bar would not operate. At the same time, if the facts give rise to distinct offences, some attracting the op.r"ton of Section 195 and others not so, the bar can operate only regarding the former and not regarding the lltter.

42. Therefore, the courts must ascertain whether during the course of a single transaction, the offences falling within both the categories are committed, in which case it would be diflicult to split up the offences or, whether there are two different transactions which occur successively, nevertheless separately and distinctively, in which case the offencej may be split up. One another aspect that may be looked into is whether, apart from the offences committed in contempt of lawful authority of public semants, or against public justice or, relating to documents given in evidence which fall under the scope of Section 195 Cr. P.C., the other distinct offences are of such a nature that private individuals are aggrieved. In such a scenario, it would not be reasonable to bar a private prosecution by the aggrieved individual for the reason that the public official or the court concerned has also not instituted a complaint.

43. Section 195(1)(a)(i) of the Cr. p.C. bars the court from taking cognizance of the offence punishable under Section 186 I.P.C., unless there is a written complaint by the public servant for voluntarily obstructing him from discharge of his public functionj. The object of this provision is to provide for a particular procedure in a case of voluntarily obstructing a public servant from discharging his public functions. The court lacks competence to automatically take cognizance in certain t)?es of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, i1l- will or frivolity of disposition and also to save the time of the criminal courts being wasted by endless prosecutions. This provision has been canred out as an exception to the general rule contained under Section 9 JAK,J crlp_1200 2021 190 Cr. P.C. that any person can set the law in motion by making a comptaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr. p.C. like sections 196 and 198 respectively do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in.those -Sections. [See: Govind. Mehta v, The Stnte of Bihar, lr971l 3 SCC 329 : AIR 1971 SC LTOS; patet Lalibhai tumnbhai v. The State of Gujarat, ltg7 tl 2 SCC 376 : AIR t97l SC 1935; Surit Singh i. p"l\i, Singb 119961 3 SCC 533; State of punjab i. Aai Sing4 (1ee8l 2scc'-sir; K. Vengadachalam v. K.C. palanbang, (2OOS) 7 SCi lS-2, leAa Singh Maruahv. Meenakshi Man ah. 1ZOoS1 4 SCC 370 : AIR 2OO5 SC 2l f9l

15. The Hon'ble Apex Court further at paragraph No.Sg, held. as follows: "58. The procedure contemplated under sub- section (l) of Section 340 of the Cr.p.C. is limited to such cases, as are provided in clause (b) of sub_section (1) of Section 195 of the Cr.p.C. only. Section 340 of the Cr.P.C. does not envisage a procedure with reference to an offence described in Section 19S(l)(a) of the Cr.P.C. However, the observations made ia.;. Stngh (supra) ard M. Narayandas (supra), mori specifically that Section 195 Cr.p.C does not ha.re arry application at the stage of investigation holds good is regards both Section I95(1)(a) and 195(r)(b) of the Cr.P.C.- respectively. "The overall bar coniernplated under Section 195 could be said to kick in only at the stage of cognizance.' 'in'

16. The Honble Apex Court held that the overall bar con':emplated under Section 195 of Cr.p.C. kicks in only at

10. JAK,J crlp_1200]021 the stage of taking cognizance. The Honble Apex Court summarizedthe conclusions, which are as follows: "CONCLUSION

59. We may summaizn our final conclusion as under: (i) Section 195(t}(aXi) of the Cr.P.C. bars ttre court from taking cognizance of any offence punishable under Sections L72 to 188 respectively of the I.P.C., unless there is a written complaint by the public senrant concerned or his administrative superior, for voluntarily obstmcting the public servant from discharge of his public functions. Without a complaint from the said persons, the court would lack competence to take cognizance in certain types of offences enumerated therein. (ii) If in truth and substance, an offence falls in the category of Section 195(1}(aXi), it is not open to the court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences disclosed in the same set of facts. However, it also cannot be laid down as a straitjacket formula that the Court, under all circumstances, cannot undertake the exercise of splitting up. It would depend upon the facts of each case, the nature of allegations and the materials on record. (iii) Severance of distinct offences is not permissible when it would effectively circumvent the protection afforded by Section 195(1)(a)(i) of the Cr.P.C., which requires a complaint by a public servant for certain offences against public justice. This means that if the core of the offence falls under the purview of Section 195(1XaXi), it cannot be prosecuted by simply filing a general complaint for a different, but related, offence. The focus should be on whether the facts, in substance, constitute an offence requiring a public servant's complaint. (iv) In the aforesaid context, the courts must apply twin tests. First, the courts must ascertain having regard to the nature of the allegations made in the complaint/FlR and other materials on record whether the other distinct offences not covered by Section -5) ? : ', i t , ! ,; l, . i I i i I I 1 i t t t : t I I I I I t I t 2 I I t I t I v 'll JAK,J crlp_1200]021 195(l)(a)(i) have been invoked only with a view to evade the mandatory bar of Section 195 of the I.P.C. and secondly, whether the facts primarily and essentially disclose an offence for which a complaint of the court or a public servant is required. (v) Where an accused is alleged to have committed some offences which €rre separate and distinct from those contained in Section 195, Section 195 will ajfect only the offences mentioned therein. However, the courts should ascertain whether such offences form an integral part and are so intrinsically connected so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Cr.P.C. This would all depend on the facts of each case. (vi) Sections 195(l)(b)(i[ii) & (iii) and 34O of the Cr.P.C. respectively do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then ttre embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a'complaint for the offence on the basis of the FIR and the material collected during investigation, provided the procedure laid down in Section 340 of the Cr.P.C. is followed."

17. On a perusal of conclusions summarized by the Hon'ble Apex Court, it is apparent that for taking cognizance for an offence punishable under Section 188 of IPC, there has to be a written complaint by the public sen'ant concerned or by the administrative superior to the Court and without there being a complaint from the said person(s), the Court would lack competence to take cognrzance. '-__- .--rc t2 JAKJ crlp_1200-021

18. It is pertinent to extract paragraph No.15 of the Honble Apex Court judgment in B..l\[.John u, State ot'U.P. and. anotheP and the relevant portion is as follows: "15. A bare perusal of Section 195 (U of the Cr.P.C., clearly indicates that there is a bar on the court to take cognizance of any offence punishable under Section 172 to 188 (both inclusive) of the IPC except on a complaint in writing made by the concerned public servant to the court. Therefore, if it is found as contended by the appellant that in respect of the offence under Section 186 of the IPC against him, no such complaint was filed by the concerned public servant as contemplated under Section 195 (1X4 Cr.P.C., the CJM could not have taken cognizance of the offence under Section 186 of the IPC. In this regard, the appellant has specifrcally pleaded to which there is no rebuttal from the State that no such complaint was made in writing by a public servant as required under Section 195(1) of the Cr.P.C., relating to the commission of offence by the appellant under Section 186 of the IPC."

19. As per the judgment of the I{onble Apex Court, it is clear that a complaint in writing is to be made by concemed public servant to Court, r,vhich is not forthcoming in the present case, no complaint is made before the competent Court, procedure enumerated under Section 195(a)(i) of Cr.P.C. is given a go-bye, which is not permissible under larv. As the procedure prescribed is not 'zozs scc online SC 7 I l3 JAKJ crlp_1200]021 followed, the charge under section 1gg of Ipc cannot be sustained. 20' rt is during the course of a protest against the house arrest of MLC, there was a violation of promulgation of Iockdown guiderines. The other offences charged are under Sections 341 and 2g5 of IpC read with 34 IpC.

21. Section 2gS of IpC is as follows: "29S. Iyegtigeat coaduct with res;rcct to lire or combustible ma.tter._Wh;;;;es, with lire or anv combustible matter,-*y."i """.ii1, or negligently to.endanger human rir", *iJ[" ii",, to cause hurt or "" rnJyry 1e any other person, negligentiv omits ty take such order ff,f"#*.." or €u-ly combustible matter il'il" possession as i::q"oi:-' g;;.*."*i11# ;t Tfl' "nt%tl combustible matter, shall be punished *iq .imprisonment of either description for a lerm *fri"tr-_.y extend to six months, or with Ii": *h;;h' _., extend to one thousand rupees, or with both., 22. Section 341 of IpC is as follows: "341. punlshr w;;srur restrain t.- Y. .1"" yJ i. ;#ffi fr,"X: ",:l: " punished with ;im;r. flf:[#*ir,l; may extend to one month, o. *-an fine which mav extend to five hundred *p.J", -i,"i;##X, r . *iit both., ".

23. On a perusal of Section 2g5 of IpC, it is apparent that whoever does, with fire e1 4r1y combustible matter, any act I :i k I l t t t4 JAK,J crlp_1200 2O2l .-t';r so rashly or negligently as to endanger human life or which causes hurt or injury is said to have committed an act under Section 285 of IPC. It is not forthcoming from the entry in General Diary nor FIR that the act of burning of bogle endangered or caused hurt or injury to any person. In the absence of any such hurt or irjury to any person for the act of burning the bogle as enumerated in the Section the ingredients of the Section are not made out. It is neither mentioned in the General Diary entry that there was a crowd gathered for such an incident to have taken place nor is there any statement refl.ecting that some person is hurt. In the absence of the ingredients being made out from the suo mctu complaint and the General Diary Entry, Section 285 of IPC does not get attracted in the facts of the case.

24. On a perusal of General Diary entry, it is observed that a bogle was burnt, but norvhere in the General Diary entry, it is mentioned that the accused/petitioner herein has obstructed any person by preventing person or persons from proceeding in any direction. If the said fact is not ! .,-5....,^ Ti.*rci::!: l5 JAK,J crlp_1200_2021 fortt,coming in the entr5r in General Diary, the a.llegation agai rst the accused/petitioner for offence under Section 341 of IPC cannot be said to be made out.

25. On a perusal of the material on record, from the conl€nts of the FIR, it is observed that the incident occrrrred on 04.06.2O20 between 10.O0 hours to 10.30 hours at Pudur X roads and reported as suo motu case on the same day at 11.30 hours by the complainant S.Shiva Kris;hna, SI of PS Kodimial. In the General Diary entr5r, the sigrrature is of the same oflicer, i.e., Sub-Inspector of Police.

26. It is evident from the record that suo motu complaint is lodged by the same person, who filed ttre charge sheet i.e., S.Shiva Krishna. The judgment of Honble Apex Court in Mohanlo'l (supra), comes to t.Ile rescue of the petitioner/accused. A Full Bench of Honble Apex Court in the, case of Moho,nlal (supra) at Paragraph No.25 held as follows: "25. In view of the conllicting opinions expressed by dillerent two Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional t6 JAK,J crlp-1200]O2l ' .;r right under Article 21 of the Constitution of India' it is considered necessary that the law in this regard ; ilJ down with certainty' To leave the matter for ["it g a"i"t-ined on the individual facts 'of a case' ;;ftrionly lead to a possible ab1-se of powers' but ;;;" td;;tly will ieave the police, the accused' tfr. i"*vlt and ihe courts in a state of uncertainty lo"i""ion which has to be avoided' It is "na it.r.fore held that a fair investigation' which is but foundation of fair trial' necessarily il;-;;ry p""t"iriJ. that the informant and the investigator must not be the same person' Justice must not only U. ao.,", but must apptat to be done also' Any oossibiliW of bias or a piedetermined conclusion has This requirement is all the more I" U" i*p.t"iiu" in laws carrying a reverse burden of proof.' "*:"f"ded.

27. In view of the law laid down by the Hon'lcle Apex Court in lRohantct (supra), the FIR and the charge sheet lrledafterinvestigationbytheSameoflrcercannotbe Sustained.onaperusalofthematerialonrecord,itis apparentthattheauthoritieshaveneitherfollowedt}relaw laiddownbytheHonbleApexCourtinrespectofSection lg5ofCr.P.C.northeprocedurecontemplatedunderthe act.Inviervofthelawlaidd'ownbytheHon,loleApexCourt in Mohanlal (supra), a fair investigation requires that the complainant/informantandtheinvestigatingoflrcershould not be one and the same'

28. Having considered the entire factual matrix of the case, this Court is of the considered' opinion that the I L -,lj;.:r. r,.. .,"ry".a?fftr"# Y*qtrSflY l7 JAK.J crlp_tZOO_2Oit p()ceedings in C.C.No.433 of 2024 on the IiIe of Special Judicial Magistrate (rf First Class for Excise Cases, Hytierabad, (OId No.C.C.No.793 of 2O2O on the file of Honble II Addl. Judicial First Class Magistrate at Jagtial) for the offences under Sections 1gg, 341, and 2g5 read witt. Section 34 of IpC, are liable to be quashed in the facts and circumstances of the case and are accordingly quasrhed.

29. For allorved. reasons aforesaid, this Criminal Petition is Miscellaneous applications stand closed. Pending if .ry, "h"[ SD/. N.SRIHARI REGISTRAR //TRUE COPY// SECTION OFFICER To, District State of Telangana HIGH COURT DATED:01 11212025 ORDER CRLP.No.120tt of 2021 ( THE S c :.) x * 2 7 FF8 2026 * ALLOWING THE CRLP WITHOUT COSTS a1 a