In the judgement of Hon'ble Apex Court in the case of Vasudev v. State

3. The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Case No.298 of 2011 (State v. Ramesh Chand and others), under Section 188 IPC arising out of Case Crime No.412 of 2010, P.S. Kasganj, District Kanshiram Nagar, pending in the Court of C.J.M. Kanshiram Nagar in aforesaid case.

3. It has been averred in the pleadings of the applicants that no prima facie case is made out against the applicants. The first information report was lodged against applicants, alleging that on 23.10.2011 the police has arrested the applicant no.2, near one School with the rifle (valid license), belong to applicant no.1. As on the eve of judgement on Ayodhya issue the District Administration had promulgated prohibition order in exercise of power under Section 144 Cr.P.C. putting bars on numerous subjects.

4. It has further been pleaded that for prosecution of a person under Section 188 I.P.C., a complaint has to be filed in terms of Section 195 Cr.P.C. but in the present case, no such complaint has been filed and thus the summoning of applicants / accused under Section 188 I. P. C. is against the provisions of law.

5. It is also pleaded that the summoning of the applicant under Section 188 I. P.C. is barred by the provisions of Section 195 Cr.P.C. The trial Court failed to consider the material and position of law while passing impugned cognizance/summoning order. The impugned order has been passed in a mechanical manner without considering the material on record and thus, the impugned charge-sheet and proceedings are liable to be quashed.

6. Learned A. G. A. has opposed the application and submitted that the material collected during investigation has to be considered by the trial Court during trial and that at this stage it cannot be said that no prima facie case is made out. The submission of charge-sheet and taking cognizance by the Court cannot be said an abuse of process of law. The applicants have committed the crime in question and after through investigation, the investigating officer has submitted charge-sheet. The first information report was lodged on true and correct facts and the allegations made in the first information report have been substantiated during investigation. In view of the material collected during investigation, it cannot be said that no prima facie case is made out against the applicants.

7. I have considered the rival submissions and perused the record.

8. Before proceeding further, it would be apt to quote Section 195 Cr.P.C., which reads as under:- "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance - (a) (i) 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; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 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), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate."

9. A reading of the above would show that a Court can take cognizance of any offence punishable under Section 188 of the IPC only on the complaint in writing of the Public Servant concerned or some other Public Servant to whom he is administratively subordinate.

10. In the judgement of Hon'ble Apex Court in the case of Vasudev v. State, 1984 SCC OnLine Del 233, has held as under:- "(6) Proceedings for an offence under Section 186 Indian Penal Code could have been set into motion if there had been a formal complaint lodged with the court concerned by the public servant who had been obstructed in the discharge of his public duties, or against whom an offence had been committed. Without such complaint, the court could not have taken seisin of the case. In fact, there was an absolute bar in terms of the language used in Section 195 Cr. P.C (See in this reward Daulat Ram v. State of Punjab, A.1.R. 1962 Supreme Court 1206). Much has been sought to be made out from the side of the State to a writing attached with the challan signed by one Sh. S.K. Mehra, Joint Director (P.F.A.) It is mentioned as a complaint unde Section 195 Cr. P.C. The name of the court of Ms. Aruna Suresh is also mentioned. After narration of the facts of the case, it has been stated in this writing that a written complaint was made to the S.H.O. Lahori Gate police station on which F.I.R. No. 789 was registered. It was next stated that the investigation had been completed, and the two accused out under arrest, and the case had been registered under Section 186 IPC. There was no specific prayer made in this writing except that the writer should be exempt from personal appearance being busy in his official duties. This writing though captioned as a complaint under Section 195 Cr. P.C., hardly fits in with the requirements of a complaint. From a public servant of the position of S.D.M., it could have been least expected that he would have looked into the provisions of the Code of Criminal Procedure and ensured that the requirements of a formal complaint were fulfillled and complied with. Moreover, such complaint should have been addressed to the court concerned. It could not have been handed over to the S.H.O., nor the S.H.O. just could have made it a part of the challan which he was submitting in the court. In fact, it was the challan on which he sought trial, and the trial court too has commenced trial on the basis of that challan. At no stage the trial court is shown to have taken cognizance of this complaint."

11. As observed in preceding discussion, there was no illegality or infirmity in getting the present FIR registered and the subsequent investigation by the police. However, the concerned public servant in the present case should have prepared a complaint as envisaged under Section 195 Cr.P.C. containing the allegations against the applicant and the material that was brought on record during the course of investigation by the police, and the same should have been filed before the Magistrate or the same could have forwarded along with the charge-sheet to the Court concerned.

12. It is an admitted case that the applicant no.2 was carrying the weapon of applicant no.1, during the prohibition order in exercise of power under Section 144 Cr.P.C. putting bars on numerous subjects. Hence, the offence has to be treated as non-cognizable offence as it is punishable with imprisonment, which may extend to three months and with fine only. In view of Explanation of Clause (d) of Section 2 Cr.P.C. report made by a police officer in a case which discloses after investigation, the commission of non-cognizable offence, shall be deemed to be a complaint.

13. In view thereof, taking cognizance for the offence under Section 188 IPC by the learned Trial Court is hit by Section 195 Cr.P.C. and, therefore, the order taking cognizance for offence under Section 188 IPC against the applicants on the police report is not sustainable and the same is liable to be set aside.

14. In the present case, the aforesaid course was not followed by the concerned public servants. Thus, the cognizance as taken by the Magistrate on the basis of charge-sheet was bad in law.

15. Accordingly, the instant application is allowed and the charge-sheet dated 18.12.2010 and summoning order dated 12.08.2013 passed by the Magistrate, District Kanshiramnagar in Case No.298 of 2011 (State v. Ramesh Chand and others), under Section 188 IPC arising out of Case Crime No.412 of 2010, P.S. Kasganj, District Kanshiram Nagar, pending in the Court of C.J.M. Kanshiram Nagar are hereby set-aside. Order Date :- 10.7.2025 S.P. SANJAY PURI High Court of Judicature at Allahabad

3. The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Case No.298 of 2011 (State v. Ramesh Chand and others), under Section 188 IPC arising out of Case Crime No.412 of 2010, P.S. Kasganj, District Kanshiram Nagar, pending in the Court of C.J.M. Kanshiram Nagar in aforesaid case.

3. It has been averred in the pleadings of the applicants that no prima facie case is made out against the applicants. The first information report was lodged against applicants, alleging that on 23.10.2011 the police has arrested the applicant no.2, near one School with the rifle (valid license), belong to applicant no.1. As on the eve of judgement on Ayodhya issue the District Administration had promulgated prohibition order in exercise of power under Section 144 Cr.P.C. putting bars on numerous subjects.

4. It has further been pleaded that for prosecution of a person under Section 188 I.P.C., a complaint has to be filed in terms of Section 195 Cr.P.C. but in the present case, no such complaint has been filed and thus the summoning of applicants / accused under Section 188 I. P. C. is against the provisions of law.

5. It is also pleaded that the summoning of the applicant under Section 188 I. P.C. is barred by the provisions of Section 195 Cr.P.C. The trial Court failed to consider the material and position of law while passing impugned cognizance/summoning order. The impugned order has been passed in a mechanical manner without considering the material on record and thus, the impugned charge-sheet and proceedings are liable to be quashed.

6. Learned A. G. A. has opposed the application and submitted that the material collected during investigation has to be considered by the trial Court during trial and that at this stage it cannot be said that no prima facie case is made out. The submission of charge-sheet and taking cognizance by the Court cannot be said an abuse of process of law. The applicants have committed the crime in question and after through investigation, the investigating officer has submitted charge-sheet. The first information report was lodged on true and correct facts and the allegations made in the first information report have been substantiated during investigation. In view of the material collected during investigation, it cannot be said that no prima facie case is made out against the applicants.

7. I have considered the rival submissions and perused the record.

8. Before proceeding further, it would be apt to quote Section 195 Cr.P.C., which reads as under:- "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance - (a) (i) 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; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 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), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate."

9. A reading of the above would show that a Court can take cognizance of any offence punishable under Section 188 of the IPC only on the complaint in writing of the Public Servant concerned or some other Public Servant to whom he is administratively subordinate.

10. In the judgement of Hon'ble Apex Court in the case of Vasudev v. State, 1984 SCC OnLine Del 233, has held as under:- "(6) Proceedings for an offence under Section 186 Indian Penal Code could have been set into motion if there had been a formal complaint lodged with the court concerned by the public servant who had been obstructed in the discharge of his public duties, or against whom an offence had been committed. Without such complaint, the court could not have taken seisin of the case. In fact, there was an absolute bar in terms of the language used in Section 195 Cr. P.C (See in this reward Daulat Ram v. State of Punjab, A.1.R. 1962 Supreme Court 1206). Much has been sought to be made out from the side of the State to a writing attached with the challan signed by one Sh. S.K. Mehra, Joint Director (P.F.A.) It is mentioned as a complaint unde Section 195 Cr. P.C. The name of the court of Ms. Aruna Suresh is also mentioned. After narration of the facts of the case, it has been stated in this writing that a written complaint was made to the S.H.O. Lahori Gate police station on which F.I.R. No. 789 was registered. It was next stated that the investigation had been completed, and the two accused out under arrest, and the case had been registered under Section 186 IPC. There was no specific prayer made in this writing except that the writer should be exempt from personal appearance being busy in his official duties. This writing though captioned as a complaint under Section 195 Cr. P.C., hardly fits in with the requirements of a complaint. From a public servant of the position of S.D.M., it could have been least expected that he would have looked into the provisions of the Code of Criminal Procedure and ensured that the requirements of a formal complaint were fulfillled and complied with. Moreover, such complaint should have been addressed to the court concerned. It could not have been handed over to the S.H.O., nor the S.H.O. just could have made it a part of the challan which he was submitting in the court. In fact, it was the challan on which he sought trial, and the trial court too has commenced trial on the basis of that challan. At no stage the trial court is shown to have taken cognizance of this complaint."

11. As observed in preceding discussion, there was no illegality or infirmity in getting the present FIR registered and the subsequent investigation by the police. However, the concerned public servant in the present case should have prepared a complaint as envisaged under Section 195 Cr.P.C. containing the allegations against the applicant and the material that was brought on record during the course of investigation by the police, and the same should have been filed before the Magistrate or the same could have forwarded along with the charge-sheet to the Court concerned.

12. It is an admitted case that the applicant no.2 was carrying the weapon of applicant no.1, during the prohibition order in exercise of power under Section 144 Cr.P.C. putting bars on numerous subjects. Hence, the offence has to be treated as non-cognizable offence as it is punishable with imprisonment, which may extend to three months and with fine only. In view of Explanation of Clause (d) of Section 2 Cr.P.C. report made by a police officer in a case which discloses after investigation, the commission of non-cognizable offence, shall be deemed to be a complaint.

13. In view thereof, taking cognizance for the offence under Section 188 IPC by the learned Trial Court is hit by Section 195 Cr.P.C. and, therefore, the order taking cognizance for offence under Section 188 IPC against the applicants on the police report is not sustainable and the same is liable to be set aside.

14. In the present case, the aforesaid course was not followed by the concerned public servants. Thus, the cognizance as taken by the Magistrate on the basis of charge-sheet was bad in law.

15. Accordingly, the instant application is allowed and the charge-sheet dated 18.12.2010 and summoning order dated 12.08.2013 passed by the Magistrate, District Kanshiramnagar in Case No.298 of 2011 (State v. Ramesh Chand and others), under Section 188 IPC arising out of Case Crime No.412 of 2010, P.S. Kasganj, District Kanshiram Nagar, pending in the Court of C.J.M. Kanshiram Nagar are hereby set-aside. Order Date :- 10.7.2025 S.P. SANJAY PURI High Court of Judicature at Allahabad