Mr. Pankaj S/O Dhyaneshwar Nighot vs State Of Mah. Thr. Pso Ps Sadar ...
2021 Latest Caselaw 17361 Bom

                                                   1                      apl1157.21.odt


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH AT NAGPUR

           CRIMINAL APPLICATION (APL) NO.1157 OF 2021

     Mr. Pankaj s/o Dhyaneshwar Nighot,
     Age 37 years, Occ- Private,
     R/o Plot No.24, Mahalaxmi, Karim Layout,
     Second Bus-stop, Gopalnagar,
     Nagpur.
                                                                     .....APPLICANT

                                   ...V E R S U S...

     State of Maharashtra,
     Through Police Station Officer,
     Police Station, Sadar,
     District Nagpur.
                                                                ....NON-APPLICANT

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Shri R.R.Vyas, Advocate for applicant.
Shri S.S. Doifode, Additional Public Prosecutor for non-applicant/State.
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CORAM:- M.S. SONAK AND PUSHPA V. GANEDIWALA, JJ.

DATE :- 14th DECEMBER, 2021

ORAL JUDGMENT (PER : M.S. SONAK , J.)

Heard. Shri R.R. Vyas, who appears with Shri

Vishwarupe, learned counsel for the applicant, and Shri S.S.

Doifode, learned Additional Public Prosecutor for

non-applicant/State.

2. Rule. The Rule is returnable forthwith at the request

of and with the consent of the learned counsel for the parties.

2 apl1157.21.odt

3. Even otherwise, by way of order dated 25.10.2021 we

had made it clear that this matter would be disposed of finally at

the stage of admission.

4. The applicant seeks the following substantive reliefs

in this application:

"(i) Call for the record of FIR No.4190/2016 dated 09/11/2016, registered with non-applicant, Sadar Police Station, Dist. Nagpur, and Charge-sheet No.79/2017 filed before learned Judicial Magistrate First Class, Court No.6, Nagpur on 16/08/2017 (Annexure No.I) for commission of offences punishable under Section 188 of the Indian Penal Code and 135 of Maharashtra Police Act.

(ii) Upon perusal of same, quash and set aside, FIR No.4190/2016 dated 09/11/2016, registered with Non Applicant, Sadar Police Station, Dist. Nagpur, and Charge- sheet No.79/2017 filed before learned Judicial Magistrate First Class, Court No.6, Nagpur on 16/08/2017 (Annexure-I) for commission of offences punishable under Section 188 of the Indian Penal Code and 135 of Maharashtra Police Act, so far as applicant is concern, on such terms and conditions, in the interest of justice."

5. The record indicates that on 08.11.2016, one Vikas

Thakare, purporting to represent Nagpur City (District) Congress

Committee, applied to Senior Police Inspector, Sadar Police 3 apl1157.21.odt

Station, Nagpur for permission to hold demonstrations on

09.11.2016 at the Civil Lines, Nagpur.

6. By response dated 08.11.2016 itself, the Senior Police

Inspector declined such permission. The allegation is that despite

the permission being declined, the applicant and 40 to 50 others

participated in the demonstrations which took place at Civil Lines

on 09.11.2016. Based upon this, an FIR came to be registered

against the applicant, and about 40 to 50 alleged demonstrators

alleging that they have committed offenses punishable under

Section 188 of Indian Penal Code (for short "IPC") and Section

135 of Maharashtra Police Act, 1951.

7. The investigating agency investigated the allegations

and filed Charge-sheet No.79 of 2017 before the learned Judicial

Magistrate First Class only against six persons including the

present applicant, alleging the commission of offenses under

Section 188 of IPC and Section 135 of Maharashtra Police Act.

Aggrieved by this action, the applicant is before us seeking

aforesaid relief.

8. Shri Vyas, learned counsel for the applicant submits

that having regard to the provisions of Section 188 of IPC and

Section 195 of Code of Criminal Procedure (for short "Cr.P.C."), 4 apl1157.21.odt

the learned Magistrate has no power to take cognizance of the

offenses alleged, based on the procedure adopted by non-

applicant in the present case. He submits that cognizance can be

taken only upon a complaint by the public servant whose order is

alleged to have been disobeyed or some other public servant to

whom he is administratively subordinate. Shri Vyas submits that

the offense punishable under Section 135 of the Maharashtra

Police Act provides for a penalty of a maximum of one-year

imprisonment. He, therefore, submits that such offense is non-

cognizable and non-applicant had no jurisdiction to register an

FIR or investigate into the same. He relied on the decision of the

Hon'ble Supreme Court in C. Muniappan and others Vs. State of

Tamil Nadu reported in AIR 2010 SC 3718 in support of his

submissions.

9. Shri S.S. Doifode, learned Additional Public

Prosecutor for non-applicant/State, submits that in this case since

the police authorities have themselves filed the charge-sheet and

therefore, there is substantial compliance with the provisions of

Section 195 of Cr.P.C. and there is no serious error in the

procedure adopted. He submits that since Section 188 is a

cognizable offense, there was nothing wrong in clubbing in the

charge sheet, the offense punishable under Section 135 of the 5 apl1157.21.odt

Maharashtra Police Act and launching the prosecution against the

applicant under the said provision as well. He, therefore, submits

that this application may be dismissed.

10. The rival contentions now fall for our determination.

11. Section 188 of the IPC deals with interim alia with

offenses involving disobedience to orders duly promulgated by a

public servant. The section provides that whoever, knowing that,

by an order promulgated by a public servant lawfully empowered

to promulgate such order, he is directed to abstain from a certain

act, or to take certain order with certain property in his possession

or under his management, disobeys such direction, shall if such

disobedience causes or tends to cause obstruction, annoyance or

injury, or risk of obstruction, annoyance or injury, to any person

lawfully employed, be punished with simple imprisonment for a

term which may extend to one month, or with fine which may

extend to one thousand rupees, or with both; and if such

disobedience causes or tends to cause danger to human life, health

or safety, or causes a riot or affray, shall be punished with

imprisonment of either description for a term which may extend

to six months, or with fine which may extend to one thousand

rupees, with both. The Explanation clarifies that it is not necessary 6 apl1157.21.odt

that the offender should intend to produce harm, or contemplate

his disobedience as likely to produce harm. It is sufficient that he

knows of the order which he disobeys, and that his disobedience

produces, or is likely to produce, harm.

12. In this case, from the allegations, we are not too sure

if the ingredients of Section 188 were at all made out because

there is nothing on record to indicate the refusal of permission by

the Senior Police Inspector was something made known to the

present applicant or the applicants against whom the impugned

charge sheet was ultimately filed. There is also no clarity as to

how these six persons were chosen when the FIR had alleged that

there were about 40 to 50 demonstrators.

13. Be that as it may, we do not propose to interfere with

the FIR or prosecution based on the above grounds, because, we

are satisfied that interference is warranted on at least two

formidable grounds referred to hereinafter.

14. Firstly, Section 195 of Cr.P.C. provides that no Court

shall take cognizance of any offense punishable under Sections

172 to 188 (both inclusive) of the IPC, except on the complaint in

writing of the public servant concerned or of some other public

servant to whom he is administratively subordinate . Section 2(d) 7 apl1157.21.odt

defines 'complaint' to mean any allegation made orally or in

writing to a Magistrate, with a view to his taking action under this

Code, that some person, whether known or unknown, has

committed an offense, but does not include a police report.

15. Now, in this case, there is no dispute that the charge-

sheet filed before the learned Magistrate is not a complaint in

writing of the public servant concerned i.e. Senior Police Inspector

who declined the permission to hold demonstrations or of some

other public servant to whom he was administratively

subordinate. In the absence of any such complaint, the Magistrate,

will not be in a position to take cognizance of the offense

punishable under Section 188 of the IPC having regard to a clear

provision of 195(1) (a) of Cr.P.C. For this reason itself, the

applicant will be entitled to relief in terms of prayer clauses (i)

and (ii) above insofar as the offense under Section 188 of the IPC

is concerned.

16. In C. Muniappan (supra), the Hon'ble Supreme Court

after considering the scheme of provisions of Section 195 of Cr.P.C.

has held that Section 195(a)(i) of Cr.PC bars the court from taking

cognizance of any offense punishable under Section 188 of IPC

unless there is a written complaint by the public servant 8 apl1157.21.odt

concerned for contempt of his lawful order. The object of this

provision is to provide for a particular procedure in a case of

contempt of the lawful authority of the public servant. The court

lacks the competence to take cognizance in certain types of

offenses enumerated therein. The legislative intent behind such a

provision has been that an individual should not face criminal

prosecution instituted upon insufficient grounds by persons

actuated by malice, ill-will, or frivolity of disposition and to save

the time of the criminal courts being wasted by endless

prosecutions. This provision has been carved out as an exception

to the general rule contained under Section 190 of Cr.PC that any

person can set the law in motion by making a complaint, as it

prohibits the court from taking cognizance of certain offenses until

and unless a complaint has been made by some particular

authority or person.

17. In paragraph 25, the Hon'ble Supreme Court

summarized the position and held 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 with them would

vitiate the prosecution and all other consequential orders. The

Court cannot assume the cognizance of the case without such 9 apl1157.21.odt

complaint. In the absence of such a complaint, the trial and

conviction will be void ab initio being without jurisdiction.

18. In paragraph 27, the Hon'ble Supreme Court further

held that the law does not permit taking cognizance of any offense

under Section 188 IPC unless there is a complaint in writing by

the competent Public Servant. In the case before the Hon'ble

Supreme Court, since no such complaint had ever been filed,

taking into account the settled legal principles, the Hon'ble

Supreme Court held that it was not permissible for the trial Court

to frame a charge under Section 188 of the IPC. Ultimately,

charges under Section 188 were quashed.

19. Having regard to the clear and cogent provision of

Section 195(1)(a) of Cr.P.c. and the above decision of the Hon'ble

Supreme Court, relief will have to be granted to the present

applicant insofar as he is sought to be prosecuted for the charge

punishable under Section 188 of the IPC.

20. The applicant has also been charged with having

committed an offense punishable under Section 135 of the

Maharashtra Police Act. From the perusal of the provisions of

Section 135 of the said Act, it is apparent that the maximum

penalty provided for the offenses may extend to imprisonment of 10 apl1157.21.odt

one year. The First Schedule of Cr.P.C. (part II) classifies offenses

against other laws i.e. offenses other than those specified in the

IPC. Therein it is provided that if offense against other law is

punishable with imprisonment for less than 3 years or with fine

only, then the same will be non-cognizable.

21. Since in this case, the prosecution cannot proceed

under Section 188 of IPC, what will remain is only prosecution

under 135 of the Maharashtra Police Act. Having regard to the

provisions of Part-II of First Schedule of Cr.P.c. the offense under

Section 135 will be non-cognizable since the maximum penalty

prescribed for them is not to exceed imprisonment of one year.

Therefore, neither the police nor the Magistrate based on police

report will have jurisdiction to take cognizance of a non-

cognizable offense. In such a situation, relief insofar as it

concerns charges under Section 135 of the Maharashtra Police Act

also deserves to be granted in this matter.

22. Even otherwise, it will no longer be in the interests of

justice to continue with this prosecution. The only allegation is

that in the year 2016 the permission was applied to hold

demonstrations and even though the permission was declined the

demonstrations were held by 40 to 50 persons. There is no clarity 11 apl1157.21.odt

about whether the order declining the permission was made

known to demonstrators. The procedures contemplated under the

Cr.P.C. have also not been followed. The continuance of the

prosecution under such circumstances will therefore not be in the

interests of justice.

23. Though, this application has been filed by only one of

the applicants who has been charge-sheeted, the record indicates

that five other persons, in addition to the applicant, are named in

the impugned charge sheet. Now that we have concluded that

filing of such charge-sheet was incompetent or that based on such

charge-sheet the Magistrate will have no power to take cognizance

of the offenses, it is only appropriate that the entire charge-sheet

against all the six persons is hereby quashed.

24. Accordingly, we make the Rule absolute in terms of

prayer clauses (i) and (ii) referred to hereinabove and further

clarify that the impugned charge-sheet shall stand quashed in its

entirety against all six persons, who have been charged

thereunder. There shall be no order for costs.

                                       (Pushpa V. Ganediwala, J.)                (M.S. Sonak, J.)
Signed By:SURESH RAOSAHEB
WAGH                            Wagh
Personal Assistant
to the Hon'ble Judge
Signing Date:16.12.2021 11:03