Allahabad High Court
Ramtej ( In Charge Sheet Ramtej Yadav) ... vs State Of U.P. Thru. Prin. Secy. Home U.P. ... on 18 February, 2025
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:10466
Court No. - 11
Case :- APPLICATION U/S 482 No. - 1057 of 2025
Applicant :- Ramtej ( In Charge Sheet Ramtej Yadav) And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. Lko. And Another
Counsel for Applicant :- Manoj Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rajesh Singh Chauhan,J.
1.Heard Sri Manoj Kumar Singh, learned counsel for the applicants and Sri Bhanu Pratap Singh, the learned Additional Government Advocate for the State.
2. By means of this petition filed under Section 482 Cr.P.C., the applicants have prayed for quashing/ setting aside the cognizance and summoning order dated 11.05.2022, passed by the learned Special Magistrate, MP/MLA/ Additional Chief Judicial Magistrate, Bahraich in Case No.7077 of 2022 (State vs. Ramtej Yadav and others) as well as the charge-sheet dated 21.03.2022 along with entire proceedings of Case Crime No.16 of 2022, under Sections 188, 269 I.P.C., Section 3 of the Epidemic Diseases Act and Section 127 of the Representation of the People Act, Police Station-Jarwal Road, District-Bahraich.
3. The precise contention of learned counsel for the applicants is that the impugned F.I.R. has been lodged under Sections 188, 269 I.P.C., Section 3 of the Epidemic Diseases Act and Section 127 of the Representation of the People Act, Police Station-Jarwal Road, District-Bahraich implicating the present applicants and others. Further, without recording any relevant material/ evidence and without recording the statement of the relevant witnesses the charge-sheet has been filed against the present applicants and five other co-accused persons on 21.03.2022. Thereafter, the learned trial court/ Magistrate took cognizance of the aforesaid charge-sheet under Sections 188, 269 I.P.C., Section 3 of the Epidemic Diseases Act and Section 127 of the Representation of the People Act and issued the impugned summoning order dated 11.05.2022.
4. Sri Manoj Kumar Singh, learned counsel for the applicants has submitted that in view of the specific power prescribed under Section 195 Cr.P.C., the prosecution for the said offence is permissible only on the complaint in writing made by the Competent Officer whose order is said to have been violated by a person, whereas in the present case the F.I.R. has been lodged by the Sub-Inspector. The law is trite that the prosecution for offence under Section 188 I.P. C. cannot be initiated by the police report.
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 applicants 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. 20.01.2022 there was proclamation of Section 144 Cr.P.C. and by flouting the conditions of proclamation of Section 144 Cr.P.C. the applicants have 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 charge-sheet 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 11.05.2022 issued by the learned Special Magistrate, MP/MLA/ Additional Chief Judicial Magistrate, Bahraich in Case No.7077 of 2022 (State vs. Ramtej Yadav and others) as well as the charge-sheet dated 21.03.2022 along with entire proceedings of Case Crime No.16 of 2022, under Sections 188, 269 I.P.C., Section 3 of the Epidemic Diseases Act and Section 127 of the Representation of the People Act, Police Station-Jarwal Road, District-Bahraich initiated against the present applicants are hereby quashed.
12. No order as to costs.
[Rajesh Singh Chauhan,J.]
Order Date :- 18.2.2025
Suresh/
