Shavez Ahmad vs State Of U.P. Thru. Prin. Secy. Home Lko. ...
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Allahabad High Court

Shavez Ahmad vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 8 September, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:53548
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
APPLICATION U/S 482 No. - 7460 of 2025   
 
   Shavez Ahmad    
 
  .....Applicant(s)   
 
 Versus  
 
   State Of U.P. Thru. Prin. Secy. Home Lko. And Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Harsh Vardhan Kediya, Sheeran Mohiuddin Alavi   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A.   
 
     
 
 Court No. - 14
 
   
 
 HON'BLE SHREE PRAKASH SINGH, J.     

1. Heard Shri Jaideep Narain Mathur, learned Senior Advocate, assisted by S/Shri Sheeran Mohiuddin and Harsh Vardhan Kedia, appearing on behalf of the applicant, as well as learned A.G.A. for the State and perused the record.

2. Instant application under section 482 Cr.P.C./528 of the B.N.S.S.,2023 has been filed with the prayer to quash the charge-sheet dated 15.03.2020 filed in Case Crime No.0600/2019, under Sections 147, 148, 149, 152, 307, 323, 504, 506, 332, 353, 188, 435, 436, 120-B and 427 IPC read with Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and Section 7 of the Criminal Law (Amendment) Act, 1932, registered at Police Station Hazratganj, District Lucknow, to quash the proceedings of the Warrant or Summons Criminal Case No.21686 of 2020, renumbered as Warrant or Summons Criminal Case No.55918 of 2025, pending in the Court of learned Chief Judicial Magistrate, Lucknow and to quash the order dated 18.03.2020 passed in the aforesaid case whereby cognizance of the offence has been taken and the applicant has been summoned to face trial under the aforesaid sections.

3. The contention put-forth by the learned Senior Advocate is that the FIR No.0600/2019 was registered against 34 named and several unnamed persons on 19th December, 2019, under Sections 147, 148, 149, 152, 307, 323, 504, 506, 332, 353, 188, 435, 436, 120-B and 427 IPC read with Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and Section 7 of the Criminal Law (Amendment) Act, 1932, at Police Station Hazratganj, District Lucknow in which the applicant was not named. He submits that the charges against the named and unnamed accused persons are that they, being part of an unlawful assembly, gathered at Parivartan Chowk, Hazratganj in disobedience of prohibitory orders and even after repeated warnings of the police personnel, they became violent and caused injuries to the police and other by-passers while pelting sticks, stones and petrol-bombs. The further contention is that the applicant was not involved in committing any offence, rather he went to the police station so as to know whereabouts of his brother-in-law but he has also been roped in the criminal prosecution. He argued that in fact the FIR has been lodged under Section 188 IPC along with other sections, which violates the mandate of Section 195(1)(a)(i) CrPC.

4. Section 195(1)(a)(i) CrPC reads as under:

(1) No Court shall take cognizance-

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Penal Code, 1860........"

5. Referring the aforesaid, he submits that it is mandated by the aforesaid provision that no court shall take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the IPC except on the complaint in writing by the public servant concerned or of some other public servant to whom he is administratively subordinate, whereas in the present case the FIR has been lodged and the matter is running as a police case. He argued that the learned trial Court ignoring the aforesaid provision has proceeded in the matter and has taken cognizance and issued process against the present applicant and other co-accused persons.

6. He has also drawn attention of this Court and submitted that the law is settled in this regard in the case of Devendra Kumar Vs. State (NCT of Delhi) and another reported in 2025 SCC Online SC 1753, and the same is summarized in para-59, which reads as under:

"59. We may summarize our final conclusion as under:

(i) Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking cognizance of any offence punishable under Sections 172 to 188 respectively of the I.P.C., unless there is a written complaint by the public servant concerned or his administrative superior, for voluntarily obstructing the public servant from discharge of his public functions. Without a complaint from the said persons, the court would lack competence to take cognizance in certain types of offences enumerated therein.

(ii) If in truth and substance, an offence falls in the category of Section 195(1)(a)(i), it is not open to the court to undertake the exercise of splitting Special Leave Petition (Crl.) No. 12373 of 2025 Page 48 of 50 them up and proceeding further against the accused for the other distinct offences disclosed in the same set of facts. However, it also cannot be laid down as a straitjacket formula that the Court, under all circumstances, cannot undertake the exercise of splitting up. It would depend upon the facts of each case, the nature of allegations and the materials on record.

(iii) Severance of distinct offences is not permissible when it would effectively circumvent the protection afforded by Section 195(1)(a)(i) of the Cr.P.C., which requires a complaint by a public servant for certain offences against public justice. This means that if the core of the offence falls under the purview of Section 195(1)(a)(i), it cannot be prosecuted by simply filing a general complaint for a different, but related, offence. The focus should be on whether the facts, in substance, constitute an offence requiring a public servant's complaint.

(iv) In the aforesaid context, the courts must apply twin tests. First, the courts must ascertain having regard to the nature of the allegations made in the complaint/FIR and other materials on record whether the other distinct offences not covered by Section 195(1)(a)(i) have been invoked only with a view to evade the mandatory bar of Section 195 of the I.P.C. and Special Leave Petition (Crl.) No. 12373 of 2025 Page 49 of 50 secondly, whether the facts primarily and essentially disclose an offence for which a complaint of the court or a public servant is required.

(v) Where an accused is alleged to have committed some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein. However, the courts should ascertain whether such offences form an integral part and are so intrinsically connected so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Cr.P.C. This would all depend on the facts of each case.

(vi) Sections 195(1)(b)(i)(ii) & (iii) and 340 of the Cr.P.C. respectively do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation, provided the procedure laid down in Section 340 of the Cr.P.C. is followed."

7. Placing reliance upon the aforesaid judgment, he submits that identical issue, which is for consideration before this Court, has been dealt with in sub-clause (iv) of the para-59 of the aforesaid judgment, wherein it is reiterated that the courts must apply twin tests. Firstly, the courts must ascertain having regard to the nature of the allegations made in the complaint/FIR and, secondly whether the facts primarily and essentially disclose an offence for which a complaint of the court or a public servant is required.

8. Concluding his arguments, learned Senior Advocate submits that in fact the learned trial Court is under bounden duty to look into whether any offence has been committed which is separate and distinct from those contained in Section 195 and the other offences which are so intrinsically connected so as to amount to offences committed as a part of the same transaction, which is essentially lacking in the present matter. He added that the aforesaid guidelines are to be looked into on the facts of each & every case, while taking cognizance and issuing process which is apparently missing and it emerges that the learned trial court has not applied its mind as per the law settled by the Hon'ble Supreme Court in Devendra Kumar Vs. State (NCT of Delhi) and another's case (supra), therefore, submission is that the whole proceedings vitiate in the eyes of law and the impugned order of taking cognizance and issuing process dated 18.03.2022 may be set-aside.

9. On the other hand, learned A.G.A., appearing on behalf of the State, has opposed the contentions aforesaid, but he could not dispute the settled proposition of law in Devendra Kumar Vs. State (NCT of Delhi) and another's case (supra), which covers the field in the present matter.

10. Having heard learned counsel for the parties and perused the record. It transpires that by lodging the FIR, Section 188 IPC has been charged along with other sections of the IPC and other special Acts and the order of taking cognizance and issuing process reflects that the learned trial court has not considered the present case in its factual matrix and has erroneously issued the process under Section 188 IPC along with other offences. The law is well settled in this regard in the case of Devendra Kumar Vs. State (NCT of Delhi) and another (supra) wherein it has been held that the learned trial court while taking cognizance has to apply its mind with respect to twin tests prescribed in sub-clause (iv) of para-59, which is apparently missing in the present case.

11. Consequently, the impugned order of taking cognizance and issuing process dated 18.03.2022, a copy of which is contained in Annexure-1 to the application, is hereby set-aside.

12. The matter is remitted to the trial court concerned; for passing a fresh order, in the light of the law laid down by the Hon'ble Supreme Court, in the case of Devendra Kumar Vs. State (NCT of Delhi) and another (supra), within a period of sixty days from the date of this order. It is clarified that other question(s) shall also remain open to be considered by the learned trial Court.

13. With the aforesaid observations/directions, the application stands allowed.

.

(Shree Prakash Singh,J.)

September 8, 2025

MVS/-