High Court

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Anand Pati Tiwari, learned counsel appearing on behalf of applicants and learned AGA for State.

2. Present application has been preferred with the prayer to quash the charge sheet dated 12.05.2023 as charge sheet no. 193 of 2023, in Case no. 3 of 2024 (State vs. Deepu @ Dipesh and another) arising out of Case Crime no. 251 of 2023, under Section 188 IPC and Section 126 of Representation of People Act, Police Station- Dibiyapurr, District Auraiya, and cognizance/summoning order dated 02.01.2024 pending in the court of learned Additional Chief Judicial Magistrate/ F.T.C., Auraiya.

3. Learned counsel for the applicants submitted that the applicants has been charge sheeted on dated 12.05.2023 whereupon cognizance of offence has been taken up by learned court of Additional Chief Judicial Magistrate/ F.T.C., Auraiya by way of summoning applicants in pursuance to Case Crime no. 251 of 2023 specifically in pursuance to Section 188 IPC and 126 of Representation of People Act, 1941.

4. At the very outset, in the opening arguments, it is submitted by learned counsel for the applicants that both the sections are non-cognizable and as such the case of the applicants are squarely covered under Section 2(d) Cr.P.C and the learned Magistrate has not adopted the procedure of the Complaint Case and in the most illegal manner, the matter has been taken up as a State case by way of taking cognizance of offence in pursuance to non-cognizable sections wherein the applicants have been implicated. Section 188 of IPC is described as a non- cognizable offence in IPC and Section 195(1) Cr.P.C. specifically provides that no court shall take cognizance of any offence under Sections 172 to 188 except upon a complaint in writing of the public servant concerned or of some other public servant to whom he is administrative subordinate thus taking cognizance under Section 188 IPC is without jurisdiction. As per Scheduled I Part 2 of the Cr.P.C. which described for classification of the offence against other law and in this schedule provides for offence punishable with imprisonment for less than three year or with fine only. i.e. non-cognizable, bailable and triable by magistrate and offence under Section 126 of Representation of People Act fall into this schedule. Moreover, it is also submitted that in the present case, mandatory compliance of Section 155(2) of Cr.P.C. has not been made since as per said section, no police officer shall investigate a non-cognizable case without order of a magistrate having power to try such case or commit the case for trial. Hence, the entire proceeding is liable to be quashed and set aside.

5. For substantiating his arguments, learned counsel for the applicants relied upon judgment rendered by Hon'ble Apex Court in case of State of Haryana and others vs. Bhajan Lal and others 1992 SCC (Supp) 1 335 and by way of highlighting and relying upon para no. 102 which is reproduced herein below: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

6. For substantiating his arguments, learned counsel for applicants also relied upon judgment rendered by co-ordinate Bench of this Court judgment dated 14.06.2024 passed in case of Ashish Kumar Tiwari @ Rahul and 27 others vs. State of U.P. and another: Application u/s 482 no. 2784 of 2024.

7. Per contra, learned AGA vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel appearing on behalf of applicants by way of supporting the order dated 02.01.2024 through which cognizance of offence has been taken up by learned court concerned by way of summoning the applicants.

8. After hearing the submissions extended by learned counsel for parties, it is crystal clear that the opening arguments raised by learned counsel for the applicants seems to be justified since both the sections wherein the applicants have been implicated through charge sheet submitted on dated 12.05.2023, must be testified in strict consonance of the provision available under Section 2(d) Cr.P.C. Moreover, having regard to aforesaid judgments relied upon by learned counsel for applicants in case of Ashish Kumar Tiwari @ Rahul and Bhajan Lal (supra) this Court is of the opinion that order dated 02.01.2024 passed by learned Additional Chief Judicial Magistrate/ F.T.C., Auraiya under Section 190 of Cr.P.C. prima facie is illegal in absence of strict provisions of the content under Section 2(d) of Cr.P.C. and as such the same is hereby set aside. Matter is remitted back to learned court concerned for reconsideration over the charge sheet at the stage of summoning and the same must be after due consideration of Section 2(d) of Cr.P.C.

9. The instant application stands allowed accordingly. Order Date :- 7.4.2025 Shaswat

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Anand Pati Tiwari, learned counsel appearing on behalf of applicants and learned AGA for State.

2. Present application has been preferred with the prayer to quash the charge sheet dated 12.05.2023 as charge sheet no. 193 of 2023, in Case no. 3 of 2024 (State vs. Deepu @ Dipesh and another) arising out of Case Crime no. 251 of 2023, under Section 188 IPC and Section 126 of Representation of People Act, Police Station- Dibiyapurr, District Auraiya, and cognizance/summoning order dated 02.01.2024 pending in the court of learned Additional Chief Judicial Magistrate/ F.T.C., Auraiya.

3. Learned counsel for the applicants submitted that the applicants has been charge sheeted on dated 12.05.2023 whereupon cognizance of offence has been taken up by learned court of Additional Chief Judicial Magistrate/ F.T.C., Auraiya by way of summoning applicants in pursuance to Case Crime no. 251 of 2023 specifically in pursuance to Section 188 IPC and 126 of Representation of People Act, 1941.

4. At the very outset, in the opening arguments, it is submitted by learned counsel for the applicants that both the sections are non-cognizable and as such the case of the applicants are squarely covered under Section 2(d) Cr.P.C and the learned Magistrate has not adopted the procedure of the Complaint Case and in the most illegal manner, the matter has been taken up as a State case by way of taking cognizance of offence in pursuance to non-cognizable sections wherein the applicants have been implicated. Section 188 of IPC is described as a non- cognizable offence in IPC and Section 195(1) Cr.P.C. specifically provides that no court shall take cognizance of any offence under Sections 172 to 188 except upon a complaint in writing of the public servant concerned or of some other public servant to whom he is administrative subordinate thus taking cognizance under Section 188 IPC is without jurisdiction. As per Scheduled I Part 2 of the Cr.P.C. which described for classification of the offence against other law and in this schedule provides for offence punishable with imprisonment for less than three year or with fine only. i.e. non-cognizable, bailable and triable by magistrate and offence under Section 126 of Representation of People Act fall into this schedule. Moreover, it is also submitted that in the present case, mandatory compliance of Section 155(2) of Cr.P.C. has not been made since as per said section, no police officer shall investigate a non-cognizable case without order of a magistrate having power to try such case or commit the case for trial. Hence, the entire proceeding is liable to be quashed and set aside.

5. For substantiating his arguments, learned counsel for the applicants relied upon judgment rendered by Hon'ble Apex Court in case of State of Haryana and others vs. Bhajan Lal and others 1992 SCC (Supp) 1 335 and by way of highlighting and relying upon para no. 102 which is reproduced herein below: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

6. For substantiating his arguments, learned counsel for applicants also relied upon judgment rendered by co-ordinate Bench of this Court judgment dated 14.06.2024 passed in case of Ashish Kumar Tiwari @ Rahul and 27 others vs. State of U.P. and another: Application u/s 482 no. 2784 of 2024.

7. Per contra, learned AGA vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel appearing on behalf of applicants by way of supporting the order dated 02.01.2024 through which cognizance of offence has been taken up by learned court concerned by way of summoning the applicants.

8. After hearing the submissions extended by learned counsel for parties, it is crystal clear that the opening arguments raised by learned counsel for the applicants seems to be justified since both the sections wherein the applicants have been implicated through charge sheet submitted on dated 12.05.2023, must be testified in strict consonance of the provision available under Section 2(d) Cr.P.C. Moreover, having regard to aforesaid judgments relied upon by learned counsel for applicants in case of Ashish Kumar Tiwari @ Rahul and Bhajan Lal (supra) this Court is of the opinion that order dated 02.01.2024 passed by learned Additional Chief Judicial Magistrate/ F.T.C., Auraiya under Section 190 of Cr.P.C. prima facie is illegal in absence of strict provisions of the content under Section 2(d) of Cr.P.C. and as such the same is hereby set aside. Matter is remitted back to learned court concerned for reconsideration over the charge sheet at the stage of summoning and the same must be after due consideration of Section 2(d) of Cr.P.C.

9. The instant application stands allowed accordingly. Order Date :- 7.4.2025 Shaswat