Jharkhand High Court

Shivdani Prasad Sinha vs The State Of Jharkhand Through The ... on 22 March, 2022

                                       1

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(Cr) No. 259 of 2016

Shivdani Prasad Sinha                                 ...... Petitioner
                           Versus
1.The State of Jharkhand through the         Director General of Police, Govt. of
Jharkhand, Ranchi
2.The Superintendent of Police, Bokaro
3. The Deputy Superintendent of Police, Bokaro.
4. The officer incharge, Sector XII Police Station, Sector XII, Bokaro.
5. The Assistant Sub Inspector-cum-Investigating Officer, Sector XII Police Station,
Sector XII, Bokaro.
6. Jayant Singh
                                               ...... Opposite Parties

CORAM:       HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

                           ---------

For the Petitioner : Mr. Rahul Kumar, Advocate For the State : Mr. Manoj Kumar, G.A.-III Mr. P.C. Sinha, A.C. to G.A.-III

16/Dated: 22/03/2022

Heard Mr. Rahul Kumar, learned counsel for the petitioner, Mr.

Manoj Kumar learned counsel assisted by Mr. P.C. Sinha, learned counsel for the

State.

2. This petition has been filed for quashing of entire criminal

proceeding in connection with Bokaro Sector 12 P.S. Case No. 21 of 2015,

corresponding to G.R. No. 2415 of 2015, pending in the Court of learned Chief

Judicial Magistrate, Bokaro.

3. One interlocutory application bearing I.A. No. 1654 of 2021 has

been filed for amendment in the prayer portion as cognizance has been taken

by order dated 16.11.2018, which was allowed vide order dated 08.04.2021.

Thus cognizance order is also under challenge in this petition.

4. The F.I.R. has been lodged by the A.S.I. of Sector-12 Police Station

stating therein that enquiry in relation to disputed plot no. 1101/D has been

handed over to him. It is alleged that there is dispute in between petitioner and

one Jayant Singh to the plot in question for which proceeding under section

107 and 144 Cr.P.C. have been recommended vide non FIR report no. 01/2015

dated 14.10.2015 upon which a proceeding under section 144 Cr.P.C. has been

recommended by the Sub-Divisional Magistrate in M.P. Case No. 571/2015. It is

alleged that the S.D.M. has passed prohibitory orders however, the petitioner

who is Secretary of Bari Cooperative Society and others have violated the same

and in conspiracy with others had been making construction and disturbing the

law, order and peace in the area.

5. Mr. Rahul Kumar, learned counsel for the petitioner submits that

Bari Cooperative Society is a registered body having registration no.

12/BAGH/78 which has been constituted for the purposes of providing housing

facility/plots to its members. He further submits that after allotment of the land

to its member the entire responsibility of constructing boundary wall and

residential houses is upon the concerned allotted member. He further submits

that one of the allottee member Sri Rakesh Pandey after allotment had been

constructing boundary wall over the said piece of land which has been

objected by one Jayant Singh who is not a member of the Cooperative Society.

He further submits that Jayant Singh with the help of local police personnel

and in order to grab land of the co-operative society, he had pressurized the

petitioner to transfer the same in his name and has been threatened him with

dire consequences on 01.10.2015 for which F.I.R. being Sector 12 P.S. Case No.

12/2015 was lodged. He further submits that non-FIR Report No. 01/2015

dated 14.10.2015 was lodged by Jayant Singh and accordingly proceeding

under section 144 of the Cr.P.C was started in M.P. Case No. 571/2015 and the

learned Sub-Divisional Officer, Chas vide order dated 16.10.2015 passed in M.P.

Case No. 571/2015 issued prohibitory orders on both the parties upon the land

in question. He further submits that F.I.R. has been lodged by the A.S.I. under

sections 188, 353, 420, 120B/34 of the Indian Penal Code. He submits that

from perusal of F.I.R. apart from Section 188 I.P.C. none of sections of the

I.P.C. are attracted. He refers to Section 195 Cr.P.C. and submits that the

complaint was not made in writing of the public servant and order under

section 144 Cr.P.C. has been passed by the learned Sub-Divisional Officer which

is requirement under section 195 Cr.P.C. He further submits that in view of

Section 195 Cr.P.C. the Court was not competent to take cognizance in view of

the mandatory provision which has not been complied with. To buttress his

argument, learned counsel for the petitioner relied on judgment in the case of

"C. Muniappan & Others Vs. State of Tamil Nadu, reported in (2010) 9

SCC 567" wherein para 32, 33, 34 the Hon'ble Supreme Court has held as

under:-

"32. In Daulat Ram v. State of Punjab this Court considered the nature of the provisions of Section 195 CrPC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the public servant concerned, the Tahsildar, had not filed any complaint. This Court held as under: "4. ... The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained.

5. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside."

(emphasis added)

33. Thus, in view of the above, the law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 CrPC are mandatory. Non-compliance with 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.

34. The learned counsel for the appellants have submitted that as no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, the entire prosecution case falls."

6. Relying on the said judgment, learned counsel for the petitioner

submits that the case of the petitioner is fully covered with the aforesaid

judgment and this Court may interfere with this petition.

7. Mr. Manoj Kumar, learned counsel for the respondent-State submits

that so far lodging of F.I.R. is not bar however, taking cognizance is bar under

section 195 Cr.P.C. He relied on judgement in the case of "State of Punjab

Vs. Raj Singh & Another" reported in (1998)2 SCC 391.

8. In view of aforesaid facts and considering the submission of the

learned counsel for the parties it is an admitted fact that F.I.R. has been

lodged by the A.S.I. of Sector 12 Police Station and order was passed under

Section 144 Cr.P.C. by the Sub-Divisional Officer. Section 195 Cr.P.C. is bar to

take cognizance by the Court under sections 172 to 188 except public servant

other than police subordinate. The judgment relied by Mr. Manoj Kumar,

learned counsel for the respondent-State in the case of "Raj Singh" (supra)

has already been considered by the Hon'ble Supreme Court in the case of C.

Muniappan (supra) in para 28 which has been relied by the learned counsel

for the petitioner and after considering this judgment, the Hon'ble Supreme

Court has held in para 33 as under:-

"33. Thus, in view of the above, the law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 CrPC are mandatory. Non-compliance with 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 ."

9. This aspect of the matter has been again considered by the Madras

High Court in the case of " V. Gowthaman & Others Vs. State" reported in

2018 SCC Online Mad 2100 (para 14), and by the High Court of Patna in

the case of "Dharmesh Prasad Verma Vs. The State of Bihar" reported in

2016 SCC Pat 3622 (para 12 and 20) and by the Patna High Court (Ranchi

Bench) in the case of "Surjeet Singh Vs. The State of Bihar" reported in

1991 SCC Online Pat 171.

10. In view of the above facts and considering the judgement of the

Hon'ble Supreme Court in the case of "C. Muniappan" (supra), it is crystal

clear that the learned court was not competent to take cognizance in view of

bar under section 195 Cr.P.C. Accordingly, entire criminal proceeding in

connection with Bokaro Sector 12 P.S. Case No. 21 of 2015, corresponding to