Jharkhand High Court
Sri Niwas Kumar vs The State Of Jharkhand Through The ... on 5 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr) No. 335 of 2022
Sri Niwas Kumar ...... Petitioner
Versus
The State of Jharkhand through the Director General of Police,
Govt. of Jharkhand, Ranchi & Others
...... Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Rahul Kumar, Advocate
For the State : Mr. Deepankar Roy, A.C. to G.A.-III
6/Dated: 05/09/2023
Heard Mr. Rahul Kumar, learned counsel for the petitioner and Mr.
Deepankar Roy, learned counsel for the State.
2. This petition has been filed for quashing of entire criminal
proceeding in connection with Hunterganj P.S. Case No. 90 of 2022, pending in
the Court of learned C.J.M, Chatra.
3. I.A. No. 1654 of 2021 was filed for amendment in the prayer for
challenging cognizance order 01.11.2022, which was allowed vide order dated
03.08.2023. Thus cognizance order is also under challenge in this petition.
4. Mr. Rahul Kumar, learned counsel for the petitioner submits that
after submission of chargesheet, learned court has taken cognizance under
section 188 of the I.P.C. against the petitioner. He submits that under 188
I.P.C. only complaint case can be entertained and in view of section 195 Cr.P.C.
only the authorized person whose order has been violated can file complaint
case.
5. Mr. Deepankar Roy, learned counsel for the respondent-State
submits that the learned court has rightly taken cognizance.
6. In the case of "C. Muniappan & Others Vs. State of Tamil
Nadu, reported in (2010) 9 SCC 567" in 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."
7. In view of above judgment of the Hon'ble Supreme Court,
complaint must be made in writing. The provision of section 195 Cr.P.C. is
mandatory and both these are lacking in the case in hand.
8. In view of above facts, the entire criminal proceeding including
cognizance order 01.11.2022 in connection with Hunterganj P.S. Case No. 90 of
2022, pending in the Court of learned C.J.M, Chatra, are quashed.
9. This petition stands allowed and disposed of. Pending I.A, if any,
stands disposed of.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/
