High Court
Legal Reasoning
10Cri.Appln_2723_2024promulgate an order. We will have to understand the word “promulgate”used in Section 188 of the Indian Penal Code. In common parlance, the saidword means “an order which is made known to public by publishing orproclaiming”. Promulgation necessarily implies public declaration as againstany private information or order. There is no document on record to showthat the order which was passed by Collector, Jalgaon, which is stated to havebeen disobeyed, was made public or declared or published in public. Further,ingredient that will have to be proved is that such disobedience causes ortends to cause obstruction, annoyance or injury, or risk of obstruction,annoyance or injury, to any person lawfully employed or to cause danger tohuman life, health or safety or causes to tends to cause riot or affray. Anotheringredient that is required to be even prima facie shown by the prosecution isthat such order was passed against a person and thereby he was directed toabstain from a certain act or to take certain order with certain property in hispossession or under his management. Therefore, this section applies to theorder duly promulgated by public servant for public purposes and not to anorder made to serve private persons. Here, no such act was expected fromapplicant. Therefore, we at the cost of repetition would like to observe thatmere disobedience of an order will not constitute an offence under thisSection, but the other ingredients are also required to be proved or evenprima facie shown. 11Cri.Appln_2723_20249For the aforesaid reasons, we are of the opinion that the basicingredients of the offence were not made out even prima facie and in spite ofbar under Section 195 of the Code of Criminal Procedure when the learnedMagistrate has taken the cognizance of the offence, it would be sheer abuseof process of law if the applicant is directed to face the trial. Case is madeout for exercise of powers under Section 482 of the Code of CriminalProcedure. Hence, following order. ORDERi)Criminal Application stands allowed.ii)The proceedings in Summary Criminal Case No.639/2022pending before learned Judicial Magistrate First Class, Chopda, Dist. Jalgaon,arising out of First Information Report vide Crime No.321/2021 dated07.09.2021 registered with Police Station, Chopda, Dist. Jalgaon, for theoffence punishable under Section 188 of the Indian Penal Code, 1860, standsquashed and set aside as against applicant Vijay Vasant Harankar. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd
Arguments
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2723 OF 2024Vijay Vasant Harankar,Age 43 yrs., Occ. Service,R/o Tukaram Nagar,Behind Swami Narayan Temple, Bhusawal, Tq. Bhusawal, Dist. Jalgaon.… Applicant… Versus …1The State of MaharashtraThrough Police Station Officer,Police Station, Chopda,Dist. Jalgaon. 2Prashant Vitthal Desai,Age 49 yrs., Occ. Service,R/o Plot No.40, Vidya Vihar Colony,Amalner, Tq. Amalner,Dist. Jalgaon. … Respondents...Mr. M.D. Narwadkar, Advocate for applicantMrs. R.P. Gour, APP for respondent No.1...CORAM :SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON :26th FEBRUARY, 2025PRONOUNCED ON :08th APRIL, 2025 2Cri.Appln_2723_2024ORDER : ( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed for quashment of proceedingsin Summary Criminal Case No.639/2022 pending before learned JudicialMagistrate First Class, Chopda, Dist. Jalgaon arising out of First InformationReport vide Crime No.321/2021 dated 07.09.2021 registered with PoliceStation, Chopda, Dist. Jalgaon, for the offence punishable under Section 188of the Indian Penal Code, 1860. 2Heard learned Advocate Mr. M.D. Narwadkar for applicant andlearned APP Mrs. R.P. Gour for respondent No.1. 3Learned Advocate appearing for applicant has taken us throughthe entire charge sheet including First Information Report. He submits thatapplicant is the Manager of ICICI Bank, Chopda Branch. He was posted inthat branch from 2019 to 2020. One farmer by name Sarjerao Mula Patil hadtaken the benefit of Crop Insurance Scheme under the name ‘PradhanmantriFasal Vima Yojana’ (Abiya Bahar). The Agriculture Insurance Company hadgranted installment of the crop insurance, but it was not credited to SarjeraoPatil’s account and, therefore, he made inquiry, but no information was givento him. He had therefore made a complaint with District Collector. DistrictCollector had taken meeting for about 8 times to review the progress. At that 3Cri.Appln_2723_2024time, it was told that the name of said farmer was not matching to his Aadharcard, which he had given in the form. In fact, the said farmer had given theinstallments of the premium, which was deposited with ICICI Bank, ChopdaBranch. Agriculture Insurance Company had given E-mail to the banksconcerned to fill up the lacuna in the documents, but no steps were taken bythe branch and, therefore, the said farmer could not receive the amountunder the Crop Insurance Scheme. The Collector had given a dead line toBanks to comply with his order, but no steps were taken and, therefore, aCommittee at the district level was constituted, which had fixed theresponsibility of applicant and then for disobedience of the order passed byCollector the offence has been registered under Section 188 of the IndianPenal Code. 4Learned Advocate for applicant submits that First InformationReport has been lodged by one Prashant Vitthal Desai, who is TalukaAgriculture Officer and stated to be the Member Secretary of GrievanceRedressal Committee, Chopda. The law requires that First InformationReport should be filed by the officer concerned, whose orders have beenallegedly disobeyed. Further, now, when the charge sheet came to be filed on01.08.2022, it can be seen that the concerned Magistrate has takencognizance of the offence without adhering to the provisions of Section 195 4Cri.Appln_2723_2024of the Code of Criminal Procedure. The Crop Insurance Scheme wasvoluntary in nature. Even if it can be understood that Collector wasimplementing authority or some way the authority connected to the saidscheme; yet, he cannot be the authority who was empowered to pass anyorder or promulgate any order as per law, when the nature of the scheme wasvoluntary. The relationship between the Agriculture Insurance Company andthe farmer was that of customer and provider. The bank was involved inbetween as a medium through whom the amounts were to be paid. 5Learned Advocate for applicant relies on similar case decided bythe co-equal Bench of this Court in Chandrakant Nandkishor Sakhla vs. TheState of Maharashtra and another in Criminal Writ Petition No.1714 of 2022decided on 22.08.2022, to which one of us (SHRI. SANJAY A. DESHMUKH,J.) was party and the petitioner therein was also the Manager from ICICIBank and the order that was passed by the same authority i.e. DistrictCollector, Jalgaon. This Court in the said matter after taking intoconsideration the note of Section 195 of the Code of Criminal Procedure andThree Judge Bench decision of Hon’ble Supreme Court in Daulat Ram vs.State of Punjab [AIR 1962 SC 1206] has observed that the learned Magistrateought not to have taken cognizance of the offence punishable under Section188 of the Indian Penal Code when the charge sheet was filed under Section 5Cri.Appln_2723_2024173 of the Code of Criminal Procedure in view of Section 195 of the Code ofCriminal Procedure. Therefore, it would be an abuse of process of law ifapplicant is directed to face the trial. 6Per contra, learned APP strongly opposed the application andsubmitted that First Information Report has been lodged by an officer, whohas been specifically directed by superior i.e. Collector, Jalgaon. The CropInsurance Scheme was started in view of direction given by Hon’ble thePrime Minister of India with a specific purpose and to take care of damagesor loss suffered by farmers. The Banks were involved so that smoothfunctioning and implementation of the scheme takes place. When in thepresent case a complaint was made by the farmer Sarjerao Mula Patil, inquirywas made. There was another farmer also who had not received the amountof crop insurance. The insurance company had not received the Aadhar cardof farmers or there was some difference in their names. However, thosepersons had deposited the premium in the respective branches. Now, in spiteof payment of premium they were deprived of getting the insurance moneyonly because the Branch Manager has not responded to the queries or has notfulfilled the lacunas. The committee was formed when such incidences werereported from other parts of the district and general directions were given toall the banks to fill up lacuna and remove defects. But present applicant has 6Cri.Appln_2723_2024disobeyed said order given by District Collector. Hence, First InformationReport was lodged. Learned APP relies on the decision in Satya NarainMusadi and others vs. State of Bihar [AIR 1980 SC 506]. Though this is acase under the Essential Commodities Act; yet, it was held that when thereport is submitted by a public servant within the meaning of Section 21 ofPenal Code, such a report would be a police report for the purposes ofSection 191(1)(b) of the Code of Criminal Procedure and if the cognizance istaken by the Magistrate, then it should be taken as compliance under Section11 of the Essential Commodities Act. On the similar line this should beconsidered as the specific compliance. 7Here, we would like to say that the facts need not be gone into inrespect as to whether who was responsible for not carrying out the order, but,here the first and the foremost fact to be noted is that when the offence isregistered under Section 188 of the Indian Penal, then there has to be acompliance under Section 195 of the Code of Criminal Procedure. Section195 of the Criminal Procedure raises a bar to take cognizance of the offenceunless complaint in that regard is filed by the public servant or by a personwho is administratively subordinate to such public servant. The coordinateBench of this Court in Chandrakant Sakhla (supra) after taking note ofDaulat Ram’s case has observed that the Magistrate cannot take cognizance 7Cri.Appln_2723_2024of the offence punishable under Section 188 of the Indian Penal Code onpolice report filed under Section 173 of the Code of Criminal Procedure. InDaulat Ram’s case (supra) after taking note of Section 195 of the Code ofCriminal Procedure it was observed that - “The words of Section 195 of the Criminal Procedure Code areexplicit. The section reads as follows : (1)No Court shall take cognizance -(a)of any offence punishable under Sections 172 to 188 of theIndian Penal Code, except on the complaint in writing of the publicservant concerned, or of some other public servant to whom he issubordinate ; The words of the section, namely, that the complaint has to be inwriting by the public servant concerned and that no court shall takecognizance except on such a complaint clearly show that in everyinstance the court must be moved by the appropriate public servant.We have to decide therefore whether the Tahsildar can be said to bethe public servant concerned and if he had not filed the complaint inwriting, whether the police officers in filing the charge sheet hadsatisfied the requirements of Section 195. The words "no court shalltake cognizance" have been interpreted on more than one occasionand they show that there is an absolute bar against the court takingseisin of the case except in the manner provided by the section. …………………… What the section contemplates is that thecomplaint must be in writing by the public servant concerned andthere is no such compliance in the present case. The cognizance ofthe case was therefore wrongly assumed by the court without the 8Cri.Appln_2723_2024complaint in writing of the public servant namely the Tahsildar in thiscase. The trial was thus without jurisdiction ab inito and theconviction cannot be maintained.”7.1Here, the word in the Section 195 of the Code of CriminalProcedure is ‘complaint’ and the word ‘complaint’ has been defined underSection 2 (d) of the Code of Criminal Procedure. Now, in the present casewhat has been filed is First Information Report as defined in Section 154 ofthe Code of Criminal Procedure, which cannot be considered as ‘complaint’.In Ganesha vs. Sharnappa and another [AIR 2014 SC 1198] Hon’ble SupremeCourt has clarified the difference between Section 2(d) and 154 of the Codeof Criminal Procedure. It is observed that – “Complainant and informant are not words of literature and cannotbe used interchangeably. In a case registered under Section 154 ofthe Code, the State is the prosecutor and the person whoseinformation is the cause for lodging the report is the informant. Thisis obvious from sub-section (2) of Section 154 of the Code which,inter alia, provides for giving a copy of the information to the‘informant’ and not to the ‘complainant’. However, the complainant isthe person who lodges the complaint. The word ‘complaint’ isdefined under Section 2(d) of the Code to mean any allegation madeorally or in writing to a Magistrate and the person who makes theallegation is the complainant, which would be evident from 200 ofthe Code, which provides for examination of the complainant in acomplaint case. Therefore, these words carry different meanings andare not interchangeable. In short, the person giving information, 9Cri.Appln_2723_2024which leads to lodging of the report under Section 154 of the Code isthe informant and the person who files the complaint is thecomplainant.”Therefore, we agree to the observations in paragraph No.12 inChandrakant Sakhla (supra). 8Another point that is involved in this case is, whether thedecision taken in the committee of which the District Magistrate wasChairperson and the subsequent action of granting time to fill up the lacunaholding the present applicant responsible and the order dated 26.04.2021against 14 banks issued by District Collector, Jalgaon can be said to be “anorder promulgated by a public servant lawfully empowered to promulgatesuch order”. Mere disobedience of an order by public servant is not sufficientto constitute an offence under Section 188 of the Indian Penal Code. It has tobe proved by the prosecution that such order was passed by a public servantlawfully empowered to promulgate. In the First Information Report itself it isstated that joining the scheme i.e. Crop Insurance Scheme was voluntary forthe farmers. When the Government had introduced the scheme it might havegiven the responsibilities for the better implementation of the scheme to itsofficers, but when the participation in the scheme itself is voluntary, thenwhatever steps and the procedure is undertaken for the implementation ofthe scheme cannot make such public servant lawfully empowered to