Allahabad High Court
Girish Kumar Tiwari @ Girish Tiwari vs State Of U.P. Thru. Addl. Prin. Secy. ... on 2 February, 2024
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:10209
Court No. - 11
Case :- APPLICATION U/S 482 No. - 9830 of 2023
Applicant :- Girish Kumar Tiwari @ Girish Tiwari
Opposite Party :- State Of U.P. Thru. Addl. Prin. Secy. Chief Secy. Home, Civil Sectt. Lko. And Another
Counsel for Applicant :- Arpan Prakash Srivastava,Mohak Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Arpan Prakash Srivastava, learned counsel for the petitioner and the learned Additional Government Advocate for the State.
2. Learned counsel for the petitioner has filed supplementary affidavit, today in the Court, the same is taken on record. By means of the aforesaid supplementary affidavit, the complete order-sheet of the court below has been filed.
3. By means of this petition filed under Section 482 Cr.P.C., the petitioner has prayed for quashing of the operation and implementation of order dated 14.04.2011 passed in Criminal Case No.2781 of 2012 (State vs. Smt. Leelawati Kushwaha and others), under Section 188 I.P.C. passed by the learned Chief Judicial Magistrate, Faizabad as well as the charge-sheet and the subsequent proceedings of Case No.2781 of 2012 initiated against the petitioner, in the interest of justice.
4. The precise contention of learned counsel for the petitioner is that by means of the impugned summoning order dated 14.04.2011, the learned Judicial Magistrate-II, Ayodhya in Case No.2781 of 2012 (State vs. Smt. Leelawati Kushwaha) has taken cognizance under Section 188 I.P.C. relating to Case Crime No.373 of 2011, Police Station-Kotwali Ayodhya, District-Faizabad, whereas in view of Section 195 Cr.P.C. there is a specific bar to take cognizance for the offence under Section 188 I.P.C.
5. Learned Additional Government Advocate has also stated that the aforesaid aspect and legal position has already been considered by the Hon'ble Supreme Court in catena of cases that there is no dispute that before taking cognizance of Section 188 I.P.C. the mandatory compliance of Section 195 Cr.P.C. would be required and if the ingredients of Section 195 Cr.P.C. are not satisfied the cognizance of Section 188 I.P.C. may not be taken.
6. Learned Additional Government Advocate has further submitted that so far as the charge-sheet under Section 188 IPC is concerned, he has nothing to say against the contention of learned counsel for the petitioner in view of the specific bar to that effect under Section 195 of Cr.P.C. He has also stated that the complainant of the said FIR is not the authority who has issued the proclamation but the same has been lodged by one police officer.
7. The perusal of the impugned F.I.R. discloses that on the date of incident i.e. 17.03.2011 there was proclamation of Section 144 Cr.P.C. and by flouting the conditions of proclamation of Section 144 Cr.P.C. the petitioner has allegedly committed offence under Section 188 I.P.C. The complainant of the F.I.R. is one of the Sub-Inspector whereas the complainant in such case should be the Public Servant who has issued proclamation or some other Public Servant to whom he is administratively subordinate. Therefore, the complainant in the present case should be any Executive Magistrate/ District Magistrate.
8. I had got occasion to decide one similar case bearing Application (U/S 482 Cr.P.C.) No.12525 of 2023 (Israr Ahmad vs. State of U.P. & others), wherein considering the judgment of Apex Court rendered in the case in re:D.K. Rajendran and Ors. etc. Vs. State of T.N., reported in AIR 2010 SC 3718, allowed that petition. The Apex Court in Para-25 held as under:
"25. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."
(Emphasis supplied)
9. Having heard learned counsel for the parties, having perused the material available on record and having regard the decisions of Apex Court, I am also of the considered opinion that no Court can take cognizance of any offence indicated in the chargesheet under Section 188 of IPC in absence of written complaint by the officer authorized for that purpose in view of the specific bar of Section 195 Cr.P.C. The provisions of Section 195 Cr.P.C. are mandatory and non-compliance of it would vitiate the prosecution and other consequential orders.
10. In the present case, notably, the complaint has not been filed by the officer who has issued proclamation under Section 144 of Cr.P.C., therefore, the trial court could have not taken cognizance of the chargesheet indicating the offence under Section 188 IPC. To me, had it not been any proclamation under Section 144 Cr.P.C. there would have been no offence of the petitioner under Section 188 IPC.
11. In view of the above and having regard to the dictum of Apex Court in re: D.K. Rajendran (supra), the present petition under Section 482 Cr.P.C. is allowed. The summoning order dated 14.04.2011 issued in Criminal Case No.2781 of 2012 (State vs. Smt. Leelawati Kushwaha and others), under Section 188 I.P.C. passed by the learned Chief Judicial Magistrate, Faizabad as well as the charge-sheet and the subsequent proceedings of Case No.2781 of 2012 initiated against the petitioner are hereby quashed.
12. No order as to costs.
[Rajesh Singh Chauhan,J.]
Order Date :- 2.2.2024
Suresh/
