Bombay High Court
Aziz Ahmed Jahur Ahmed vs The State Of Mah. Thr. Pso Ps Mangrulpir ... on 20 September, 2025
2025:BHC-NAG:9496-DB
J-apl180.24 final.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.180 OF 2024
Aziz Ahmed Jahur Ahmed,
Aged about 45 years,
Occupation : Agriculturist,
R/o. Tekdipura, Mangrulpir,
Tah. Mangrulpir, Distt. Washim. : APPLICANT
...VERSUS...
1. The State of Maharashtra,
Through its Police Station Officer,
Police Station Mangrulpir,
Distt.Washim.
2. Sumit s/o. Anil Chauhan,
Aged about 31 years,
Occupation : Service,
R/o. C/o. Police Station Mangrulpir,
Distt. Washim. : NON-APPLICANTS
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Mrs. Kirti Deshpande, Advocate for Applicant.
Mr. M.J. Khan, Addl. Public Prosecutor for Non-applicant No.1.
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 15th SEPTEMBER, 2025.
PRONOUNCED ON : 20th SEPTEMBER, 2025.
JUDGMENT :
(Per : Nandesh S. Deshpande)
1. Heard. Admit. Heard finally by consent of learned
counsel appearing for the parties.
2. This is an application filed under Section 482 of the
Code of Criminal Procedure by the accused No. 4. The said F.I.R. is
for the offences punishable under Sections 108, 290 and 291 of the
Indian Penal Code and Section 135 of the Maharashtra Police Act.
3. As per the said F.I.R. bearing No.1146/2023 on
19.1.2023, it was alleged that on 14.1.2023 the applicant herein
along with others without obtaining permission from the competent
authority carried out procession and played loud music. It was
further alleged in the said process there was use of loudspeaker and
Disc Jockey (DJ). It was alleged that in spite of giving of notice the
applicant did not pay heed to the same and continued with the
procession.
4. After completion of the investigation pursuant to the
said F.I.R. the non-applicant No.1 submitted final report bearing
No.124/2023 against the applicant for the offences mentioned
above. It is this charge-sheet which is challenged in the present
application.
5. We have heard Mrs. Kirti Deshpande, learned counsel
for the applicant and Mr. M.J. Khan, learned Additional Public
Prosecutor for the non-applicants.
6. Learned counsel for the applicant submits that as far as
offence under Section 188 of the Indian Penal Code is concerned,
their is a specific bar under Section 195 of the Criminal Procedure
Code in as much as cognizance of such an offence can only be
taken on a written complaint by the complaint authority. She
further states that the charge-sheet does not attribute any role to
the applicant that he organized or led the procession. In the
submission of learned counsel for the applicant, even no offences
under Sections 290 and 291 of the I.P.C. are attracted as the
prosecution has not been able to show any injury or danger or
public annoyance. Furthermore, it is submitted that no offence
under Section 135 of the Maharashtra Police Act is also made out.
In nutshell, it is the submission of the learned counsel for the
applicant that the allegations in the F.I.R. even though they are
taken on their face value do not constitute any offence. She relies
on a judgment reported in 2025 SCC Online SC 1753, Devendra
Kumar Vs. State (NCT of Delhi) and another, in support of her
submissions.
7. Learned Additional Public Prosecutor for the
non-applicants vehemently opposed the submissions of the learned
counsel for the applicant. He states that the averments in the F.I.R.
are sufficient to constitute offences as mentioned in the F.I.R.
8. In the backdrop of these facts, we have perused the
averments in the F.I.R. and the charge-sheet as also the relevant
legal provisions. Section 188 of the Indian Penal Code speaks about
disobedience to order duly promulgated by public servant and
contemplates that whoever knowing that by an order promulgated
by a public servant he is directed to abstain from certain acts
disobeys such direction would be punishable for imprisonment as
mentioned in the said Section. However, Section 195 of the
Criminal Procedure Code puts an embargo for prosecuting offences
punishable under Sections 172 to 188 of the Indian Penal Code
except on the complaint in writing of the public servant concerned
or of some other public servant to whom he is administratively
subordinate.
9. In the present case, as far as offence under Section 188
of the I.P.C. is concerned the disobedience is order of the Collector
District Washim passed on 6.1.2023 which prohibited certain acts
as per Section 37(1)(3) of the Maharashtra Police Act. However,
for taking cognizance of such offence complaint is to be made by
the Collector or by any officer subordinate to him. In the present
case admittedly the complaint is made by Police Constable Sumit
Anil Chauhan. Thus, in view of express bar under Section 195 of
the Criminal Procedure Code, we are of the opinion that offence
under Section 188 of the Indian Penal Code is not made out.
10. As far as offences under Sections 290 and 291 of the
Indian Penal Code are concerned they speak about the punishment
for public nuisance and continuance of nuisance after injunction to
discontinue respectively. While Section 135 of the Maharashtra
Police Act provides for penalty for contravention of rules or
directions under Sections 37, 39 and 40. It is thus clear that the
offences punishable under Sections 290 and 291 are totally distinct
from the offence punishable under Section 188 of the I.P.C.
Learned counsel for the applicant has relied upon the judgment
Devendra Kumar (supra) to support that said offences are not
distinct but overlap each other. However, we are of the opinion
that while Section 188 only speaks about disobedience to order
promulgated by public servant offences under Sections 291 and
292 speaks about public nuisance and continuance thereof. In the
judgment relied upon by the counsel for the applicant, the Hon'ble
Apex Court in Devendra Kumar (supra) while drawing conclusion
in para 59 sub-clause (v) has recorded as under :
"59(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."
11. In the light of the dictum of the Hon'ble Supreme Court
it is clear that Section 195 will effect only the offences mentioned
therein and no other offences. We have already recorded that the
offences of public nuisance are separate and distinct from the
offence under Section 188 and, therefore, there is prima facie
material to prosecute the applicant under those sections. In that
view of the matter, the situation would squarely fall under clause
(6) of the various contingencies mentioned in the judgment in the
case of State of Haryana and others Vs. Ch. Bhajan Lal and others,
reported in MANU/SC/0115/1992 as there is an express legal bar
engrafted in the Criminal Procedure Code for the institution and
continuance of the proceedings. We, therefore, are of the view that
the application needs to be allowed partly, as far as offence under
Section 188 is concerned. The prosecution would continue with
respect to rest of the Sections i.e. 290 and 191 of the I.P.C. and
Section 135 of the Bombay Police Act. Hence, we proceed to pass
following order :
ORDER
(i) The application is partly allowed.
(ii) The First Information Report bearing
No.46/2023, dated 19.1.2023, registered with non-applicant No.1
and the Final Report No.124/2023, dated 20 th June, 2023 against
the applicant is quashed only to the extent of offence punishable
under Sections 188 of the Indian Penal Code is concerned.
(iii) The prosecution would continue for the
remaining offences i.e. Sections 290 and 291 of the Indian Penal
Code and Section 135 of the Maharashtra Police Act.
(iv) The application is disposed of.
(Nandesh S. Deshpande, J.) (Urmila Joshi-Phalke, J.)
wadode
Signed by: Mr. Devendra Wadode
Designation: PS To Honourable Judge
Date: 22/09/2025 10:07:47
