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Madhya Pradesh High Court
Chakresh Kumar Jain vs Shri Alok Shrivastava on 18 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:13968
1 MCRC-7460-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE B. P. SHARMA
ON THE 18 th OF FEBRUARY, 2026
MISC. CRIMINAL CASE No. 7460 of 2010
CHAKRESH KUMAR JAIN
Versus
SHRI ALOK SHRIVASTAVA AND OTHERS
Appearance:
Shri Ishteyaq Husain - Advocate for petitioner.
Shri Sachindra Raghuvanshi - P.L. for State.
ORDER
This petition has been preferred under Section 482 of Cr.P.C. being
aggrieved by the order dated 29.01.2010 passed by Sub Divisional Magistrate,
Sihora, District Jabalpur (M.P.) by which he has directed to the Police Station
Gosalpur to register the crime under Section 188 of IPC against the petitioner and
in pursuance of that order, the Police Station Sihora has registered an FIR bearing
Crime No.65/2010 for the offence punishable under Section 188 of IPC against
the petitioner.
2. Learned counsel for the petitioner submits that the petitioner moved an
application before the predecessor of the respondent No.1 on 30.09.2009 praying
Police force so as to enable him to harvest the crops on the lands in dispute.
Accordingly, the Sub Divisional Magistrate passed an order along with the
application in the name of Station Officer, Gosalpur on 30.09.2009 itself to
provide him with police force so that he could harvest the crops from agricultural
land bearing Khasra Nos.22, 23, 24 and 33, area 3.35, 7.714, 2.96 and 1.93
hectares respectively at Village Dhamdha, Tahsil Sihora. It is submitted that till
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30.09.2009, no preliminary order under Section 145(1) of the Code of Criminal
Procedure was passed.
3. It is further submitted that the respondent No.1 on 08.10.2009 passed an order
under Section 146 of the Code of Criminal Procedure in a typed format in the
name of Kotwar, Village Dhamdha, authorizing him to harvest the crops standing
on the aforesaid khasra numbers and to keep it in his safe custody. It is submitted
that no order under Section 145(1) of the Code of Criminal Procedure was passed
before passing the order dated 08.10.2009 and thus the order dated 08.10.2009 is
void ab initio in itself.
4. Learned counsel for the petitioner submits that on 29.01.2010, the Village
Kotwar Ramnath Dahia came to the Court of Sub Divisional Magistrate and got
recorded a statement stating therein that the Tili crop on the lands in dispute was
already harvested by the petitioner on behalf of Rajeev and Sanjeev and Arhar
crop was standing thereon which has been forcibly harvested by them. He went on
the spot and prohibited the persons who were harvesting the crop but they told to
show the order of the Sub Divisional Magistrate. One of them asked him to call
the Sub Divisional Magistrate on the spot and he told that the Sub Divisional
Magistrate cannot come there. He said that they will harvest the crops. He went to
Police Station, Gosalpur and he directed to report the matter to the Sub Divisional
Magistrate. It is clear from the said order-sheets that the matter was posted for
30.01.2010 but the same was taken up on 29.01.2010 behind the back of the
petitioner and the respondent No.1 passed an order to make a report to Station
Officer, Gosalpur for registering a case under Section 188 I.P.C. for violation of
his order under Section 146 of the Code of Criminal Procedure. It is submitted that
as per the order-sheet dated 29.01.2010, no order under Section145(1) of the Code
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of Criminal Procedure was passed even till that date and the same was signed on
29.01.2010 alone. But the order served on the petitioner bears the date of
08.10.2009, which is contradictory to what is mentioned in the order-sheet dated
29.01.2010.
5. The petitioner challenges filing of the FIR on the ground that offence under
Section 188 of IPC is not cognizable one and only a complaint under Section 195
of Cr.P.C. can be filed by a government authorized officer and it is not open for
all or to public to file a complaint to anyone under Section 188 of IPC. Therefore,
the proceedings are not maintainable and liable to be quashed.
6. Learned counsel for the petitioner submits that the FIR cannot be lodged
because the offence is not cognizable, therefore, FIR as well as order passed by
the Sub Divisional Magistrate are not maintainable and liable to be quashed.
7. It is further submitted that the said FIR and the impugned order passed by the
Sub Divisional Magistrate are totally illegal and liable to be quashed because the
law is well settled that the non-cognizable offence and FIR cannot be lodged and
no permission to lodge an FIR has been taken from the competent authority i.e.
competent Magistrate.
8. Learned Panel Lawyer appearing for the State has vehemently opposed the
submissions made by learned counsel for the petitioner and submits that there is
no perversity or illegality in the impugned order and, therefore, this petition under
Section 482 of Cr.P.C. is liable to be dismissed.
9. Heard both the parties and perused the record.
10. Before proceeding further, it would be appropriate to mention Section 188
of IPC which read as under:-
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
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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 person 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 trends 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;
Explanation. ÃÂIt 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.
Illustration- An order is promulgated by a public
servant lawfully empowered to promulgate such order,
directing that a religious procession shall not pass down a
certain street. A knowingly disobeys the order, and thereby
causes danger of riot. A has committed the offence defined in
this section.
11. Further before proceeding further, it would be appropriate
to mention Section 195 of Cr.P.C which read as under:-
195. Prosecution for contempt of lawful authority of public
servants, for offence against public justice and for offence relating
to document given in evidence -
1. No Court shall take cognizance-
(a)(i) of any offence punishable under sections 172 to 188
(both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii)of any abetment of, or attempt to commit, such
offence, or (iii)of any criminal conspiracy to commit such
offence, except on the complaint in writing of the public
servant concerned or of some other public servant to
whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following
sections of the Indian Penal Code (45 of 1860 ), namely,
sections 193 to 196 (both inclusive), 199, 200, 205 to 211
(both inclusive) and 228, when such offence is alleged to
have been committed in, or in relation to, any proceeding in
any Court, or
ii. of any offence described in section 463, or punishable
under section 471, section 475 or section 476, of the said
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Code, when such offence is alleged to have been
committed in respect of a document produced or given in
evidence in a proceeding in any Court, or
iii. of any criminal conspiracy to commit, or attempt to
commit, or the abetment of, any offence specified in sub-
clause
(i) or sub- clause (ii), except on the complaint in writing of
that Court, or by such officer of the Court as that Court may
authorise in writing in this behalf, or of some other Court to
which that Court is subordinate.
2 . Where a complaint has been made by a public servant
under clause (a) of sub- section (1) any authority to which
he is administratively subordinate may order withdrawal of
the complaint and send a copy of such order to the Court;
and upon its receipt by the Court, no further proceedings
shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if
the trial in the Court of first instance has been concluded.
3 . In clause (b) of sub- section (1), the term" Court"
means a Civil, Revenue or Criminal Court, and includes a
tribunal constituted by or under a Central, Provincial or
State Act if declared by that Act to be a Court for the
purposes of this section.
4. For the purposes of clause (b) of sub- section (1), a
Court shall be deemed to be subordinate to the Court to
which appeals ordinarily lie from the appealable decrees or
sentences of such former Court, or in the case of a Civil
Court from whose decrees no appeal ordinarily lies, to the
principal Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court in situate:
Provided that-
a. where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be the Court to
which such Court shall be deemed to be subordinate;
b. where appeals lie to a Civil and also to a Revenue
Court, such Court shall be deemed to be subordinate to the
Civil or Revenue Court according to the nature of the case
or proceeding in connection with which the offence is
alleged to have been committed.
12. It is clear that in the present case, proceeding is initiated on the basis of
FIR and charge sheet was filed under Section 173 of Cr.P.C. It is evident in
the aforesaid section that no Court shall take cognizance under Sections
172(2), 188 of the Indian Penal Code. The complaint is to be made by the
public servant to any authority to which he is administratively sub ordinate.
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So it is clear that no complaint has been made by Competent Officer in the
present case. Hence, no Court shall take cognizance on the basis of charge
sheet under Section 188 of Cr.P.C. In this context this Court Ashok Agrawal
Vs. State of M.P. reported in ILR (2015) M.P. 3130 has held as under:-
I have gone through the judgment of Hon'ble Division
Bench delivered in the case of Jyotiraditya Sindhiya
(supra), wherein it was held that the offence cannot be
registered by police in view of the provisions of section
195 of Cr.P.C. under Section 188 of IPC. The Division
Bench also relied upon the principles laid down by the
Appellate Court delivered in the case of C.Muniappan
and others Vs. State of Tamil Nadu reported in (2010) 9
SCC 567 and held that without complaint as defined by
section 2(d) of Cr.P.C., cognizance cannot be taken
under Section 188 of IPC. Applying ratio of the case of
Jyotiraditya Sindhiya (supra), I find that cognizance
could not be taken by the Magistrate on the basis of FIR
registered by police in Crime No. 124/2011. The defects
cannot be cured merely by a letter by the District
Magistrate addressed to the Chief Judicial Magistrate. In
such situation, I find that this application filed under
Section 482 of Cr.P.C. deserves to be allowed and the
impugned order passed by the learned Revisional Court
and the Judicial Magistrate are liable to be set aside.
13. In the case of Gautam Kalloo (Dr.) and another Vs. State of M.P.
reported in 2010(2) MPLJ 609 has held as under:-
7. This apart, by virtue of the provisions of Section
195(1) (a)(i) of the Code, cognizance of the offence in
question can be taken only on the complaint and writing
of the Secretary of the Election Commission of India or of
some other public servant to whom he is administratively
subordinate.
14. The Madras High Court in the case of Jeevanandham and others Vs.
State of Rep. By Inspector of Police in Crl. O.P. No. 1356/2018 has held as
under:-
25. In view of the discussions, the following guidelines
are issued insofar as an offence under Section 188 of
IPC, is concerned:
a. A Police Officer cannot register an FIR for any of the
offences falling under Section 172 to 188 of IPC.
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b. A Police Officer by virtue of the powers conferred under
Section 41 of Cr.P.C will have the authority to take action
under Section 41 of Cr.P.C., when a cognizable offence
under Section 188 IPC is committed in his presence or
where such action is required, to prevent such person from
committing an offence under Section 188 of IPC.
c. The role of the Police Officer will be confined only to the
preventive action as stipulated under Section 41 of Cr.P.C
and immediately thereafter, he has to inform about the same
to the public servant concerned/authorised, to enable such
public servant to give a complaint in writing before the
jurisdictional Magistrate, who shall take cognizance of such
complaint on being prima facie satisfied with the
requirements of Section 188 of IPC.
d. In order to attract the provisions of Section 188 of IPC, the
written complaint of the public servant concerned should
reflect the following ingredients namely;
i. that there must be an order promulgated by the public servant;
ii. that such public servant is lawfully empowered to promulgate
it;
iii. that the person with knowledge of such order and being
directed by such order to abstain from doing certain act or to
take certain order with certain property in his possession and
under his management, has disobeyed; and
iv. that such disobedience causes or tends to cause;
a. obstruction,annoyance or risk of it to any person lawfully
employed; or
b. danger to human life, health or safety; or
c. a riot or affray.
d. The promulgation issued under Section 30(2) of the Police
Act, 1861, must satisfy the test of reasonableness and can
only be in the nature of a regulatory power and not a blanket
power to trifle any democratic dissent of the citizens by the
Police.
e. The promulgation through which, the order is made known
must be by something done openly and in public and private
information will not be a promulgation. The order must be
notified or published by beat of drum or in a Gazette or
published in a newspaper with a wide circulation.
f. No Judicial Magistrate should take cognizance of a Final
Report when it reflects an offence under Section 172 to 188
of IPC. An FIR or a Final Report will not become void ab
initio insofar as offences other than Section 172 to 188 of
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IPC and a Final Report can be taken cognizance by the
Magistrate insofar as offences not covered under Section
195(1)(a)(i) of Cr.P.C.
g. The Director General of Police, Chennai and Inspector
General of the various Zones are directed to immediately
formulate a process by specifically empowering public
servants dealing with for an offence under Section 188 of IPC
to ensure that there is no delay in filing a written complaint
by the public servants concerned under Section 195(1)(a)(i)
of Cr.P.C.
This Court will now proceed to deal with the independent cases
15. In view of the forgoing discussion, it is evident that no Court can take
cognizance under Section 188 of Cr.P.C. on the basis of charge sheet filed by
the Police. Therefore, FIR No.65/2010 registered at Police Station Gosalpur
under Section 188 of IPC filed against the petitioner is hereby quashed.
16. Accordingly, this petition is hereby allowed.
(B. P. SHARMA)
JUDGE
Biswal
