The High Court · 2025

Order

This Criminal Petition is hled under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (for short tsNSS) by petitioner/ accused No.l to quash the proceedings against him in C.C.No.2B1 of 2022 on the file of The Special Judicial

First Class Magistrate for trial of Excise Cases, Manoranjan Complex, NampallY, HYderabad. 2 JAK, J oRLP 8475 2025

2. Heard Mr. B.BaIaji, learned , ounsel for a petitioner/adcused No. 1 and Mr. E.Ganesh, As;istant Public Prosecutor for respondent No. l-State.

3. On the basis of complaint of res : rndent No.2 (Machineella Ram Babu, Flying Squad In-cha_r1 e Team No.1, Vikarabad), an FIR bearing No.69 of 20 1!, came to be registered on 12.03.2023 for the offences und: ' Section 188 of Indian Penal Code, 1860 (for short 'lPC'). It rs stated in the complaint that respondent No.2, while perforn: i rg his duties, at 11:OO hours, carne across a hunger strike being undertaken in an open place opposite tc RDO ofhce, Vikarabad, by the followers of a nationa party. That petitioner/ accused No.1 (MP Chevalla) alor 1 with other accused (accused No.2 - Ex-MLA Pargi, accus,) t No.3 - MLA Tandur, accused No.4 - Ex-Minister, Vikarabarr. and accused No.S - Vikarabad Congress Party To\ r President) participated in the hunger strike. It is further s tated that as per the Model Code of Conduct, they cor_r d not have conducted such meeting, without proper permi ,sion Hence, the complaint. a.J, 5 JAI', J CRLP 8475 2025

4. Complaint is said to be received on 12.03.2019 at 14:00 hours, FIR came to be registered on the very same day. Charge sheet came to be fiIed against accused on

24.07.2019, on the file of Judicial First Class Magistrate, at Vikarabad.

5. On a'perusal of the charge sheet, it is observed that contents of the charge sheet are a verbatim replica of complaint, except for the statement that the acts and commisSion of accused persons constitutes an offence under Section 188 of IPC arld a reference to LWs.2 to 4.

6. l,earned counsel for petitioner/ accused No. 1 submitted that for an offence under Section 188 of IPC, a procedure has been prescribed under Section 195 of Code of Criminal Frocedure, 1973, (for short 'Cr.P.C.J and the procedure mandated under Section 195 of Cr.P.C. is not followed, as such, the offence under Section 188 ol IPC cannot be said to be made out.

7. Reliance is placed on the judgment of the Hon'ble Apex Court in Devendra Kumar a.-ptate (NCT of Delhi) and I I i I I I t l I I i I I i j 4 JAK, J CRLP 847 5 2025 amother. Referring to paragraph s 4L, 42 ar.< 43, as well as the conclusions summarised therein, it is sul mitted that the Apex Court consideied Section 195 Cr.p.C and laid down the law. The same has not been adhered to, hence, the proceedings be quashed.

8. On a perusal of tlee material on recorri it is observed that procedure laid out under Section 195 of )r.P.C. has not been adhered to, charge sheet is taken r n record and cognizance of the offence is taken by Juciic .a-l First Class Magistrate, at Vikarabad, for an offence un,l :r Section 188 and numbered as C.C.No.281 of 2022 on th : filing of final i report/charge sheet.

9. Section 195 of Cr.P.C. is as follows '195. Prosecutloa for contempt of lawful a r public senraats, for olfeaces against publ and for oltreuces relatlug to documents evideace.-(1) No Court shall take cognizancc (a) (i) of any olfence punishable under sect to 188 (both inclusive) of the Indian penal ( of 1860), or (ii) of any abetment of, or attempt to com:l offence, or (iii) of any criminaf conspiracy to coml olfence, hority of c justlce given in tns 172 ode, (45 it, such it such 5 JAK, J CRLP 8475 2025 I ; except on the complaint in writing of the public servant conceroed or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of tJ.e following sections of the Indian Penal Code (45 of 186O), namely, sections 193 to 196 (both inclusive), lgg, 2OO, 2OS to 2ll (bot1l inclusivel atd 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 crirninal conspiracy to commit, or attempt to comrnit, or the abetment of, a-ny offence specified in sub-clause (i) or sub-clause (ii), r[except on the complaint in writing of that Court or by such olficer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. ] (2) Where a complaint has been made by a public servant under clause (al of sub-section (l) any authority to which he is administratively subordinate may order the withdrawat of the complarnt and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrau'at sha-ll be ordered if tl-e trial in the Court of first instance has been concluded' (3) In clause (b) of sub-section (1), the term "Court" means a.Civil, Revenue or Crimrnal Court, ald includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section l l i I I i I i I r t t s ! t II i I i; i 6 JAK, J CRLP 8475 2025 (4) For the purposes of clause (b) of sub-s: Court shall be deemed to be subordinate to I which appeals ordinarily lie from the appeal r or sentences of such former Court, or in tlr, Civil Court from whose decrees no appeal orJ to the Principal Court having ordinar5r cr jurisdiction witJ:in whose local jurisdiction Court is situate: ,tion (1), a e Court to rle decrees case of a narily lies, ginal civil such Civil Provided that- (a) where appeals lie to more than one ( Appellate Court of inferior jurisdiction stLr Court to which such Court shall be deer subordinate; (b) where appeals lie to a Civil and also to € Court, such Court shall be deemed to be srr to the Civil or Revenue Court according to [. o[ the case or proceeding in conlection r,r the offence is alleged to have been comrnitt l )urt, the 11 be tfre ed to be Revenuc rordinate e nature .h which 1[195A. Procedure for wltaesses ir case of threatening, etc.-A witness or any other l) rson may file a complaint in relation to an oflence un( 3r section I95A of the Indian Penal Code (45 of fS6O)1"

10. On a perusal of Section 195 Cr.P.C., it { apparent that a complaint ln writing has to be made _o the Court. Complaint is defined under Section 2(d) Cr p.C., and the same is as follows: 'complaint" means any allegation made or LIiy or in writing to a Magistrate, with a view to -r s taking action under this Code, tJ:at some persotL whether known or unknown, has committed an olf nce, but does not include a police report." I 7 JAK, J CRLP E475 2025 I L

11. Section 188 of IPC is as follows: "188. Disobedience to order duly promulgated by publlc servaat.-Whoever, knowing that, by an order promulgated by a public servant lawfullv empowered to proinulgate 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, alnoyance or iniury, 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 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 hne which may extend to one thousand rupees, or with both."

12. For constituting an offence under Section 188 of IPC, the disobedience has to lead to the consequences spoken of in the Section. Mere disobedience would not suffice. Promulgation of an order would be normally by way of publication in Gazette and making known to public by publishing it in the newspaper(s). Section 195(1)(a) Cr.P.C. is primary, a plain reading of Section enumerates the procedure that a complaint as defmed under Section 2(d) Cr.P.C. must be made in writing by a public servant, which f 8 t JAK, J oRLP 84'.15 2025 is essential for a Magistrate to take cognizan(x under Section 188 of IPC. When such a procedure is prescr bed, the Police cannot register an FIR, investigate the case rnd file a final report, when on offence is alleged under Sectrr n 188 of IPC.

13. On a perusal of the definition under iection 2(dl of Cr.P.C., it is evident that any allegation har; to be made to the Magistrate orally or in writing and that a :omplaint does not include a police report in its fold. A poli<r report is filed under Section 173 Cr.P.C. Once it is defined 1I at a complaint does not include a police report/final report /charge sheet, the same cannot be said to be a complaint. It s a report filed after investigation, which does not fit into tl e definition of Section 2(d) Cr. P.C

14. The Apex Court while dealing with Sectr n 195 Cr.P.C., in Devendra Kumdr (1 supra) held as follows: "4 1- Whrle deciding whether the distinct oIfer.r split up, courts must remain circumspect. It that, the law is not that once the facts of a 1 disclose al offence falling within tl"e scope 195 Cr. P.C. and also other offences, prosecu I launched regardrng the latter only upon the ct the court or tl-e law{ully authority concern€ c otherwise would be to extend the scope of Se Cr. P-C. to regions and horizons not contempl r legislature. The facts in a chamay give rise :s can be is agreed iven case ,f Section rn can be nplaint of To hold :tion 195 ed by the r distinct 9 JAIq J CRLP 8475 2025 offences including offences against t}re authority of oublic servants or aeainst public justice, as also offences lgainst pri rate indi;duals; the bar under Section 195 of tfr" Ct. p.C. cannot, in such circumstances, affect the offences other than those against public authority or public justice. Prosecution for such other offences does .rot ..ql..it" the instmmentality of the public-authority or court. However, the position may be different when during the course of the sarr'e transaction offences fJfinf *rtftin tl.e two categories are comiFitted' In such .r"."I it may not be possible to split up the transachon' and io holi tl.at there can be valid prosecution for off".r"." not mentioned in Section 195 of the Cr' P C ' wittrout the written complaint of the public authority or the court, as the case may be. Courts must be- able- to see through a-ny attempt to render Section I95 of t]le Cr' .V by hiding the rgal nature. of the p.C. ""6t jugglery' If in principle and i.rrr.^"tiit by "rrl"t"t "" the olfence alleged falls within the categories mentioned in Section 195, the operation of the bar cannot be avoided; if in essence the alleged oflence falls oulsiae tne categories, the bar would not operate' At the same time, if thJ facts give rise to distinct offences' some attracting the operation of Section 195 and otlters not so, the b"ar can operate only regarding tJ:e former and not regarding the latter. "Lrbal

42. Therefore, the courts must ascertain whether during oi a single transaction, the offences .falling ,tr" "or.". wrthin both the categories are committed, in which case it would be diffrcult to split up the offences or' whether there are two different transactions which occur .r.."".iu.fy, nevertheless sePErrately and distincrively' in which case the offences may be split up One ano,ther asoect that mav be looked into is whether' apart lrom ,nJ Lff.""." .o--itt"d in contempt of lawful authority of public servants, or against public justice or' relating to iocuments given in evidence which fall under the scope .i s.."." r"ss ct. p.C., the other distinct offences are of , .tr.*." tlaat private individuals are aggrieved ln it would not be reasonable to bar a "...f, , "rct o.iur,. o.o"""rtion by the aggriwed individual for -the i.rson tl'rat the public oflicial or the court concerned has a-lso not instituted a comPlaint' "c..ratio,

43. Section 195(f)(a)(i) of the Cr' P'C' bars the court from .i tf," offence punishable. under ,J.rg ort "i i..ri"" f S"6 I.P.C., unless there is a written complarnt by obstructing him from tn. p"uri. ".*.tti fot ""ty" "ogt ( l I i l0 i,{ JAK, J cN-P 8475 202s discharge of his public functions. The olr provision is to provide for a particular pr<,i case of voluntarily obstructing a pubtc s.( discharging his public functions. The c competence to automatically take cogrrizanr:r types of offences enumerated therein. The intent behind such a provision has bee individual should not face criminal instituted upon insufficient grounds by pers,r: by malice, iil-wilt or frivolity of disposition r save the time of the criminal courts bein{i endless prosecutions. This provision has beer as an exception to the general rule contrt Section 19O Cr- P.C. that any person can s(t motion by making a complaint, as it prohib:t from taking cognizance of certain olfence; unless a complaint has been made by som€ authority or person. Other provisions in the C sections 196 and 198 respectively do not lay rule of procedure, rather, they only create unless some requirements are complied \yitr shall not take cognizance of an offence c.t those Sections. [See: Gorznd Mehta v. Tle St:- (1971) 3 SCC 329; AIR 1971 SC 1708; pot Somabhai v. The State of Gujarat, (1971) 2 SC( I971 SC i935; Surjir Singhv. Balbir Singfu ()l 533; State of Punjab v. Raj Singh (1998) 1l K. Vengadachalam v. K.C. Palanisamg, (2(,( 352; Iqbal Singh Marutah v . Meenakshi Mant t SCC 370: AIR 2OO5 SC 21 tgl )ct of this sdure in a :vant from )urt lacks in certain legislative r that an ,rOSecution s actuated nd also to wasted by carved out red under the law in i the court until and particular :. P.C. tike down any L bar tl:at the court scribed in e of Bihar, 'l lalibhni 376 : AIR 96) 3 SCC SCC 391; s) 7 scc r (20os) 4 CONCLUSION 59- We may summarize our final conclusion as under: (i) Section 195( l)(a)(i) of the Cr. p.C. bars the taking cognizance of any offence punish,r Sections 172 to 188 respectively of the I.F. there is a wrirren complaint by the publ. concerned or his administrative superior, for. obstructing the public servant from dischiu public functions. Without a complaint frorn persons, the court would lack competen(x cognizance in certain types of offences tt therein. ourt from rle under )., unless : servant oluntarily ge of his the said to take umerated (ii) If in truth and substance, an offence ja Is in the category o[ Section 195(l](a)(i), it is not open tc the court to undertake the exercise_ of splitting the:r up and JAK, J CFJP 8475 2025 proceedinB further against the accused for the other distinct oflences disclosed in tlee same set of facts. However, it also cannot be laid down as a straifiacket formula that the Court, under all circumstances' cannot undertake the exercise of spttting 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 allorded by Section 195(lXaXi) of the Cr. P.C., which requrres a complaint by a public servant for certain offences against public justice. This mears that if the core of the offence falls under the purview of Section 195(lXaXi), 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 complarnt. (iv) In the aforesaid context, the courts must apply twm tests- First, t'l"e 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 t9s(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 cornmitted some olfences which are separate and distinct from those contained in Section 195, Section f95 will a:ffect only the offences mentioned therein. However, the courts should asccrtain 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 oflences also would fall within the ambir of Section 195 of the Cr. P.C. This rrould all depend on the facts of each case. {vi) Sections 195(1[b)(ixii) & (iii) and 34O of the Cr. P.u' respectively do not control or circumscribe tJre power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then frle a complaint for tl.e offence on the basis of the FIR and thelnaterial collected during 12 JAK, J CRLP 8475 202s investigation, provided the procedure tai(t down in Section 340 of the Cr. P.C. is followed."

15. A learned Single Judge of High Court of Madras in Jeetanandham and others u. State rep. ), t Inspecto" ol Pollce and anotherl, after referring tc a catena of judgments, issued the following guidelines br an offence under Section 188 of IPC "29. In view of the discussions, the followin;; are issued insofar as an offence under Sectior-. is concerned: guidelines 88 of IPC, a) A Police Officer cannot register an FIR lc the offences falling under Sectron 172 to 18[ b) A Police OfEcer by virtue of the powers : under Section 41 of Cr.P-C. will have the a to take action under Section 41 of Cr.P.C, cognizable offence under Section f88 committed in his presence or where such i required, to prevent such person from ccr an o{Ience under Section 188 of IPC. c) The role of the Police Officer will be conf u to the preventive action as stipulated under 41 of Cr.P.C. and immediately thereafter, Jr inform about the same to the public concerned/ authorised, to enable suct servant to give a complaint in writing b: jurisdictional Magistrate, who shall take cr1 of such complaint on being prima facre with the requirements o[ Section 188 of IPC. d) In order to attract the provisions of Sectio. IPC, the written complarnt of the publi( concerned should reflect the following in3 namely; ' arry of of IPC. ,nferred rthority when a IPC is ction is mitting ed only Section has to servant public :re tire tizance atisfied . 188 of servant edients '20t8 scc onl-in" Mad I3698 13 JAK, J CRLP E475 2025 i) that there must be an order promulgated by the public servant; ii) that such public servalt is lawfully empowered to promulgate it; iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeYed; and iv) that such disobedience causes or tends to CAUSE; (a) obstruction, annoyance or risk of it to any person lawfully employed; or (b) danger to human life, health or safety; or (c) a riot or alfray. e) The promulgation issued under Section 3O(2) of the Police Act, 1861, must satisff the test of reasonableness and ca;r only be in the nature of a regulatory power and not a blanket power to trille any democratic dissent of the citizens by the Police. f) The promulgatron through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be noti-fied or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation. g) No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to '188 of IPC. An FIR or a Final Report -will not become void ab initro insofar as offences other than Section I72 to 188 of IPC and a Final Report can be taken cognrz-ance by the Magistrate insofar as olfences not covered under Section 195(l){a)(i) of Cr.P.C. h) The Director General of Police, Chennai and Inspector Gencral of the various Zones are directed to immediately formulate a process by specifrcally empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in hling a written complaint by tl.e public 14 JAK, J CRLP 847s 202s serv€rnts concemed under Section 1!tl (lXaXi) of Cr.P.C."

16. On one hand, in the complaint, it is st rted that there was a hunger strike and on the other hand, . - is stated that there was a meeting conducted. No details of he meeting are forthcoming, neither the place, nor timing, no: the number of persons gathered is forthcoming. Be that i s it may, law I requires that procedure under Section 195 (l -. P.C. needs to be followed. The bar contemplated under Sect cn 195 Cr.P.C. kicks in at the stage of cognizance, the sa r procedure as mandated under Section i95 Cr.P.C and z s per the law declared by the Honble Apex Court has nct t r en followed. In the absence of adherence to the requireme r ts of law, the proceedings are liable to be quashed.

17. Having considered the entire factual me I -ix of the case, this Court is of the opinion that interests of jr stice would be met, if proceedings in C.C.No.28 | of 2022 or the Iile of the Special Judicial First Class Magistrate for ria-l of Excise Cases, Manoranjan Complex, Nampally, Hydi -abad, against petitioner/accused No.l are quashed, as the rroceedings, if continued would amount to abuse of process I law. l5 JAK, J CRLP 8475 2025 t

18. This Court deems it appropriate that a coPy of this judgment be marked to Director General of Police for the State of Telangana for taking necessary steps and to formulate a process for empowering public servants dealing with offence under Section 188 of IPC, as per the law laid down by the Apex Court.

19. With above observations, the Criminal Petition is allowed and the proceedings in C.C.No.28L of 2022 on the Iile of The Special Judicial First Class Magistrate for trial of Excise Cases, Manoranjan Complex, Nampally, Hyderabad, against petitioner/ accused No.1, are hereby quashed. Miscellaneous applications pending, if any, shall stand closed. S MALLIKARJUNA RAO ISTANT REGISTRAR //TRUE GOPY// SECTION OFFICER T o',| ,n. Soecial Judrcial First Class ltlagistrate for Trial of Excise Cases' ' Manoianian Complex, Namoallv Hvderaoao' 2. The Director General "iF'ii"?'i;;(tii"-ot ' il'ioi k" p"ol, Saifabad, Hvderabad'50000^4. l. $:358 5. Two CD CoPies GE/PSL 'f|3'J#b??L',88X:l*"e roPUCl 'Xi"E r"r'ngana' Police Head quarters' Y.r- f' -r- =: FI 1 TI, ( i F1n)B ) r{ ?r HIGH COURT DATED:2711112O25 ORDER CRLP.No.8475 of 2025 i I I I ALLOWING THE CRLP WITHOUT COSTS + ,rf'l> Y+- fl--\uc