Pramod Arora vs The State Of Madhya Pradesh
2023 Latest Caselaw 5809 MP

                                                  1

            IN THE           HIGH COURT               OF MADHYA PRADESH
                                         AT I N D O R E
                                              BEFORE
                             HON'BLE SHRI JUSTICE ANIL VERMA

                                   ON THE 11th OF APRIL, 2023

                             MISC. CRIMINAL CASE No. 7829 of 2023

            BETWEEN:-
            PRAMOD ARORA S/O LATE SHRI YASHWANT
            SINGH ARORA, AGED ABOUT 49 YEARS,
            OCCUPATION:  BUSINESS  R/O A.B.   ROAD
            SARANGUR DISTT. RAJGARH BIAORA (MADHYA
            PRADESH)
                                                                       .....APPLICANT
            (SENIOR ADVOCATE SHRI RAVINDRA SINGH CHHABRA
            ALONG WITH SHRI MUDIT MAHESHWAR- ADVOCATE )

            AND
            THE STATE OF MADHYA PRADESH STATION
            HOUSE OFFICER THROUGH POLICE STATION
            SARANGPUR DISTRICT RAJGARH BIAWARA
            (MADHYA PRADESH)
                                                                    .....RESPONDENTS
            ( BY SHRI PRASANT JAIN GA )
            _____________________________________________________________________
                     This application coming on for admission this day, the court passed
            the following:

                                              ORDER

The petitioner has filed present petition under section 482 of Cr.P.C for quashment of FIR no.221/2019 registered at police station - Sarangpur, District - Rajgarh for the offence under section 188, 34 of IPC and charge sheet bearing no. 185/2019 as well as the impugned order dated 28/05/2019 passed by the JMFC, Sarangpur in Criminal Case no. 809/2019 (RCT no. 378/2019).

Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 4/12/2023 5:15:49 PM

2. The facts giving rise to this petition are that complainant Sonam Sharma, Patwari made a written complaint at police station - Sarangpur on 29/04/2019 stating that the petitioner and his father had set fire to the Narwai standing in the aforesaid fields after harvesting the wheat crop thereby violating the order dated 22.04.2019 passed by the Collector u/s 144 of Cr.P.C. prohibiting burning of Narwai. Accordingly, offence has been registered against the petitioner and his father (since deceased) under sections 188, 34 of IPC. After completion of the investigation, charge sheet bearing no. 185/2019 dated 14/09/2019 has been registered before the trial Court and vide order dated 28/05/2019, the trial Court took cognizance of the FIR against the petitioner and his father.

3. Learned counsel for the petitioner submits that the trial Court has mechanically took cognizance of the FIR against the petitioner and his father without appreciating the settled legal principles prohibiting taking of cognizance on FIR. It is gross violation of settled preposition of law. The cognizance can only be taken on the complaint 'in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In the resent case, no complaint has been made by any such public servant to the magistrate the police have no jurisdiction to register an FIR for the offence under Section 188/34 of the IPC. The Magistrate has overlooked 'the statutory provisions, which categorically states that without any complaint from public servant, cognizance cannot be taken .by the Magistrate under section 195 of Cr.P.C. The registration of FIR and continuation of the criminal proceedings against the petitioner is abuse of process of law. Hence, learned counsel prays that the alleged FIR, the charge sheet and the impugned order dated 28/05/2019 be set aside. Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 4/12/2023 5:15:49 PM

4. Per-contra, learned counsel for the respondent/State opposed the prayer made by counsel for the petitioner stating that the impugned order passed by the trial Court is just and proper and according to law also.

5. Both the parties were heard at length and also perused the record.

6. Before proceeding further, it would be appropriate to look at the Law. For the sake of convenience, section 188 of IPC is reproduced as under :

"Section 188. - Disobedience to order duly promulgated by public servant.--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 persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two-hundred rupees, or with both; and if such disobedience Causes or tends to Cause danger to human life, health or safety, or causes or tends to cause 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, or with both.

Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 4/12/2023 5:15:49 PM

Explanation.--It is not necessary 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."

7. Under the. Cr.P.C. the offence under Section 188 of the IPC is cognizable and bailable. By virtue of the local amendment made by the State of M.P. Vide Notification No.33207-F-No.6-59-74-B-Xx| dated 19.11.1975 the said offence is made non bailable.

8. For the sake of convenience, Section 154 of Cr.P.C is reproduced as under :

"154, Information in cognizable cases.-(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf."

9. Therefore, in terms of the aforesaid, the police officer is competent to register he FIR in case of commission of offence under Section 188 of the IPC

10. In the present case, it is not in dispute that there were prohibitory orders of the District Magistrate, Rajgarh (Biora) Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 4/12/2023 5:15:49 PM

No./3495/Sw/2018 dated 22/04/2019 completely prohibiting any kind o burning Narwai. This prohibitory order was issued by the District Magistrate under section 144 of Cr.P.C

11. Learned counsel for the petitioner contended that in view of the power contained under section 195 of Cr.P.C, the police could not have registered the FIR for the offence under section 188, 34 of IPC and as per the procedure prescribed under section 195 of Cr.P.C for the offence under section 188 of IPC, a public servant is required to file complaint before the Competent Court and therefore, the aforesaid FIR cannot be registered.

12. To bolster his contentions, learned counsel for the petitioner has placed reliance upon the judgment of Hon'ble Apex Court delivered in the case of Milanbhai Laxmanbhai Kuvadiya Vs. State of Gujrat reported in 2023 SCC Online Guj.796, but in the instant case, Sonam Sharma, Patwari, Patwari Halka no. 56 filed written complaint before Police Station - Sarangpur and the District Magistrate, Rajgarh (Biora) by order No./3495/Sw/2018 dated 22/04/2019 authorized his subordinate staff that in case of violation of the aforesaid order, FIR should be registered, therefore, its procedure under section 195 of Cr.P.C is duly complied with.

13. Hon'ble Supreme Court in the case of N. Soundaram Vs. P.K. Pounraj and another reported in (2014) 10 SCC 616, in paragraph 13 has categorically held that:

13. It is well settled by this Court in a catena of cases that the power under Section 482 Cr.P.C. has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. The inherent power should not be exercised to stifle a Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 4/12/2023 5:15:49 PM

legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Talking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482, Cr.P.C. An investigation should not be shut out at the threshold if the allegations have some substance."

14. Having regard to the aforesaid, I do not find any merit in the present petition. No case is made out for exercising inherent powers under section 482 of Cr.P.C in the instant case.

15. Accordingly, present petition filed under section 482 of Cr.P.C by the petitioner, being devoid of merit, deserves to be and is hereby dismissed.

C.C. as per rules.

(ANIL VERMA) JUDGE amol

Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 4/12/2023 5:15:49 PM