Rajasthan High Court - Jodhpur
Shobha Chauhan vs State Of Rajasthan (2025:Rj-Jd:29341) on 8 July, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:29341]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2344/2022
Shobha Chauhan W/o Shri Rajesh Chauhan, Aged About 48
Years, R/o Raipur Police Station, Raipur, At Present Mla Sojat
City, District Pali.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Lakshya Singh Udawat
Mr. C.S. Jodha
Mr. C.P. Rajora
For Respondent(s) : Mr. Narendra Singh, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 08/07/2025
1. By way of filing the present criminal misc. petition under Section 528 BNSS, the petitioner has prayed for the following reliefs:-
"It is, therefore most respectfully and humbly prayed that the present Misc. Petition may kindly be allowed and the entire proceedings pending before the Civil Judge and Judicial Magistrate, Bar pertaining to FIR No. 303/2018 lodged at Police Station, Raipur may kindly be ordered to be quashed and set aside and in addition to it the cognizance order dated 18.03.2020 in case no. 303/2018 as well as the order dated 03.03.2021 passed in Revision Petition No.2/2021 by Additional Session Judge, Jaitaran, District Pali may also be quashed and set aside."
2. Learned counsel for the petitioner submitted that brief facts giving rise to the present criminal misc. petition are that on 30.11.2018, the complainant- Narendra Singh Tehsildar- Raipur (Pali) lodged an FIR against the petitioner alleging inter alia that the petitioner who was a contesting member in the Vidhan Sabha Election of 2018, while attending a program organized by Raika (Downloaded on 11/07/2025 at 10:22:30 PM) [2025:RJ-JD:29341] (2 of 6) [CRLMP-2344/2022] community on 30.11.2018 delivered a speech in gross violation of Election's Code of Conduct. The police after registering FIR against the petitioner for the offences under Section 188 of IPC and Section 127 of Representation of People Act, 1951 and commenced the investigation in the matter.
3. Learned counsel submitted that the police after making thorough investigation in the matter on 15.02.2020 submitted chargesheet No.3 against the petitioner before the competent criminal Court only for the offence under Section 188 of IPC. He submitted that learned trial Court vide the impugned order dated 18.03.2020 has taken cognizance against the petitioner for the offence punishable under Section 188 of IPC. He submitted that cognizance for an offence under Section 188 of IPC can only be taken pursuant to a complaint filed by the competent authority, whereas in the present case, cognizance has been taken by the learned trial Court pursuant to filing of FIR without submitting a written complaint by a public servant.
4. Learned counsel further submitted that being aggrieved by the order of cognizance dated 18.03.2020, the petitioner preferred a Revision Petition No.02/2021 before the Court of Additional Sessions Judge, Jaitaran, District Pali. Drawing attention of the Court towards the order of learned revisional Court, learned counsel submitted that the argument raised on behalf of the petitioner that the Judicial Magistrate ought not have taken cognizance on the FIR for offence under Section 188 of IPC has not been considered by learned revisional Court and the same has been rejected in a mechanical manner. Learned counsel submitted that since the order of cognizance passed against the petitioner is (Downloaded on 11/07/2025 at 10:22:30 PM) [2025:RJ-JD:29341] (3 of 6) [CRLMP-2344/2022] an utter disregard to the provisions of Section 195 of Cr.P.C., therefore, the same deserves to be quashed and set aside by this Court.
5. Per Contra, learned Public Prosecutor opposes the submissions made on behalf of the petitioner. Learned Public Prosecutor submitted that the impugned order does not suffer from any infirmity or irregularity which attracts the interference of this Court.
6. Heard learned counsel for the parties at Bar. Perused the material available on record.
7. The relevant portion of Section 195 of the Cr.P.C., 1973 is reproduced hereinbelow for ready reference:-
"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 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),[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 behalf, or of some other Court to which that Court is subordinate.] [Substituted by Act 2 of 2006, Section 3 for "except on the complaint in writing of that Court, of of some other Court to which that Court is subordinate" (w.e.f.
16-4-2006).] "
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[2025:RJ-JD:29341] (4 of 6) [CRLMP-2344/2022]
8. The definition of complaint as enumerated under Section 2(d) of the Cr.P.C., 1973 is reproduced hereinbelow for ready reference:-
"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether know or unknown, has omitted an offence, but does not include a police report.
9. This Court is conscious of the judgments passed by the Hon'ble Supreme Court of India in the cases of Sachida Nand Singh and Anr. v. State of Bihar and Anr. reported in (1998)2 SCC 493 and Daulat Ram v. State of Punjab reported in AIR 1962 SC 1206.
10. In Sachida Nand Singh (supra), the Hon'ble Supreme Court while dealing with this issue observed as under:-
"7. ... Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence"
upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well- recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise."
(Emphasis supplied)
11. In Daulat Ram (supra), the Hon'ble Supreme Court considered the nature of the provisions of Section 195 Cr.P.C. and held as under:-
"The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside."
(Emphasis added) (Downloaded on 11/07/2025 at 10:22:30 PM) [2025:RJ-JD:29341] (5 of 6) [CRLMP-2344/2022]
12. Admittedly, the cognizance has been taken against the petitioner under Section 188 of IPC by the learned trial Court in relation to FIR No.303/2018 registered at Police Station Raipur, District Pali filed by Tehsildar Raipur, District Pali vide order dated 18.03.2020. Section 195(a)(i) Cr.P.C., bars the trial Court from taking cognizance of any offence punishable under Section 188 of IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant for contempt of his lawful order. Since, Section 195 of Cr.P.C. provides a particular procedure, no Court can take cognizance in contravention of the same. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.P.C. that any person can set the law in motion by making a complaint, 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.
13. As noticed above, in the present case, the cognizance against the petitioner for the offence under Section 188 of IPC has been taken solely on the basis of the FIR lodged by the police without there being any written complaint by the officer authorized for the purpose.
14. This Court, in this view of the matter, has no hesitation in reaching to a conclusion that the cognizance against the petitioner has been taken by the Court of learned Judicial Magistrate, Bar, District Pali without having any jurisdiction and the same therefore, cannot be maintained.
15. Consequently, the instant criminal misc. petition is allowed. The order of cognizance dated 18.03.2020 passed by the Court of (Downloaded on 11/07/2025 at 10:22:30 PM) [2025:RJ-JD:29341] (6 of 6) [CRLMP-2344/2022] learned Judicial Magistrate, Bar, Pali in Case No.303/2018 titled as "State v. Shaitanram & Ors." is hereby quashed and set aside. The order dated 03.03.2021 passed by learned revisional Court in Criminal Revision Petition No.02/2021 also stands quashed and set aside.
16. All pending applications, if any, stand disposed of accordingly.
(KULDEEP MATHUR),J 1-himanshu/-
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