Pankaj Agrawal @ Pankaj Kumar vs The State Of Jharkhand
2023 Latest Caselaw 623 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr. M. P. No. 181 of 2022
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1. Pankaj Agrawal @ Pankaj Kumar

2. Anand Kumar @ Anand Agrawal ... .... Petitioners Versus

1. The State of Jharkhand

2. Sadhna Oraon ... .... Opp. Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioners : Mr. Nilesh Kumar, Advocate For the State : Mr. P.D. Agrawal, A.P.P.

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Oral Order 07 / Dated : 06.02.2023

1. The instant criminal misc. petition has been filed for quashing the entire criminal proceeding including the FIR in connection with Rajganj P.S. Case No. 88 of 2021 registered under Sections 188, 290, 34 of IPC and Sections 5(i), 6(B), 7 of the COTPA Act without doing the details of the present case.

2. It is submitted by learned counsel for the petitioners that the main ground for quashing the cognizance under Section 188 of IPC is based on the plea that in view of Section 195 Cr.P.C., FIR cannot be lodged by the police officer under Sections 188 of IPC and only the competent authority or an officer administratively subordinate to the public servant, whose order has been violated, can file an official complaint for taking cognizance under Section 188 of IPC. Reliance is placed on the judgment of this Court in W.P. (Cr.) No. 325 of 2021 and Cr.M.P. No. 700 of 2021 and the judgment of Madras High Court in Crl. O.P. No. 1356 of 2018 dated 20.09.2018. Reliance has also been placed in 2015 SCC OnLine Punjab & Haryana 11314 wherein the FIR registered under Section 188 of IPC has been quashed on similar grounds. Reliance has also been placed on 2022 SCC OnLine Jhar 214.

3. Learned counsel for the State has relied on 2018 (4) JLJR (SC) 205 wherein it has been held that the prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. There is no bar for prosecution under the Indian Penal Code merely because the provisions in the FSS Act were also attracted.

4. The sole question in the present petition is whether a fire can be lost under section 188 of the Cr.P.C?

In view of the ratio relied upon by the learned counsel, there cannot be any doubt over the legal proposition that Magistrate cannot take cognizance of an offence under section 138 without a complaint in writing of the public servant concerned or any officer administratively subordinate to him.

Under the circumstance, the cognizance of offence under section 188 is quashed. This will, however, not have any bearing with respect to other offences under which cognizance has been taken.

Criminal Miscellaneous Petition is partly allowed.

(Gautam Kumar Choudhary, J.) AKT