Rajasthan High Court - Jodhpur
Shobha Chauhan vs State Of Rajasthan (2025:Rj-Jd:29341) on 8 July, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:29341]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2344/2022
Shobha Chauhan W/o Shri Rajesh Chauhan, Aged About 48
Years, R/o Raipur Police Station, Raipur, At Present Mla Sojat
City, District Pali.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Lakshya Singh Udawat
Mr. C.S. Jodha
Mr. C.P. Rajora
For Respondent(s) : Mr. Narendra Singh, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
08/07/2025
1. By way of filing the present criminal misc. petition under
Section 528 BNSS, the petitioner has prayed for the following
reliefs:-
"It is, therefore most respectfully and humbly
prayed that the present Misc. Petition may kindly be
allowed and the entire proceedings pending before the
Civil Judge and Judicial Magistrate, Bar pertaining to FIR
No. 303/2018 lodged at Police Station, Raipur may kindly
be ordered to be quashed and set aside and in addition to
it the cognizance order dated 18.03.2020 in case no.
303/2018 as well as the order dated 03.03.2021 passed
in Revision Petition No.2/2021 by Additional Session
Judge, Jaitaran, District Pali may also be quashed and set
aside."
2. Learned counsel for the petitioner submitted that brief facts
giving rise to the present criminal misc. petition are that on
30.11.2018, the complainant- Narendra Singh Tehsildar- Raipur
(Pali) lodged an FIR against the petitioner alleging inter alia that
the petitioner who was a contesting member in the Vidhan Sabha
Election of 2018, while attending a program organized by Raika
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community on 30.11.2018 delivered a speech in gross violation of
Election's Code of Conduct. The police after registering FIR against
the petitioner for the offences under Section 188 of IPC and
Section 127 of Representation of People Act, 1951 and
commenced the investigation in the matter.
3. Learned counsel submitted that the police after making
thorough investigation in the matter on 15.02.2020 submitted
chargesheet No.3 against the petitioner before the competent
criminal Court only for the offence under Section 188 of IPC. He
submitted that learned trial Court vide the impugned order dated
18.03.2020 has taken cognizance against the petitioner for the
offence punishable under Section 188 of IPC. He submitted that
cognizance for an offence under Section 188 of IPC can only be
taken pursuant to a complaint filed by the competent authority,
whereas in the present case, cognizance has been taken by the
learned trial Court pursuant to filing of FIR without submitting a
written complaint by a public servant.
4. Learned counsel further submitted that being aggrieved by
the order of cognizance dated 18.03.2020, the petitioner preferred
a Revision Petition No.02/2021 before the Court of Additional
Sessions Judge, Jaitaran, District Pali. Drawing attention of the
Court towards the order of learned revisional Court, learned
counsel submitted that the argument raised on behalf of the
petitioner that the Judicial Magistrate ought not have taken
cognizance on the FIR for offence under Section 188 of IPC has
not been considered by learned revisional Court and the same has
been rejected in a mechanical manner. Learned counsel submitted
that since the order of cognizance passed against the petitioner is
[2025:RJ-JD:29341] (3 of 6) [CRLMP-2344/2022]
an utter disregard to the provisions of Section 195 of Cr.P.C.,
therefore, the same deserves to be quashed and set aside by this
Court.
5. Per Contra, learned Public Prosecutor opposes the
submissions made on behalf of the petitioner. Learned Public
Prosecutor submitted that the impugned order does not suffer
from any infirmity or irregularity which attracts the interference of
this Court.
6. Heard learned counsel for the parties at Bar. Perused the
material available on record.
7. The relevant portion of Section 195 of the Cr.P.C., 1973 is
reproduced hereinbelow for ready reference:-
"195. Prosecution for contempt of lawful authority of public servants, for
offences against public justice and for offences relating to documents 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 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 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.]
[Substituted by Act 2 of 2006, Section 3 for "except on the complaint in writing
of that Court, of of some other Court to which that Court is subordinate" (w.e.f.
16-4-2006).] "
[2025:RJ-JD:29341] (4 of 6) [CRLMP-2344/2022]
8. The definition of complaint as enumerated under Section
2(d) of the Cr.P.C., 1973 is reproduced hereinbelow for ready
reference:-
"complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether know or
unknown, has omitted an offence, but does not include a
police report.
9. This Court is conscious of the judgments passed by the
Hon'ble Supreme Court of India in the cases of Sachida Nand
Singh and Anr. v. State of Bihar and Anr. reported in (1998)2
SCC 493 and Daulat Ram v. State of Punjab reported in AIR
1962 SC 1206.
10. In Sachida Nand Singh (supra), the Hon'ble Supreme
Court while dealing with this issue observed as under:-
"7. ... Section 190 of the Code empowers "any magistrate
of the first class" to take cognizance of "any offence"
upon receiving a complaint, or police report or
information or upon his own knowledge. Section 195
restricts such general powers of the magistrate, and the
general right of a person to move the court with a
complaint to that extent curtailed. It is a well- recognised
canon of interpretation that provision curbing the general
jurisdiction of the court must normally receive strict
interpretation unless the statute or the context requires
otherwise."
(Emphasis supplied)
11. In Daulat Ram (supra), the Hon'ble Supreme Court
considered the nature of the provisions of Section 195 Cr.P.C. and
held as under:-
"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. The appeal is,
therefore, allowed and the conviction of the appellant and
the sentence passed on him are set aside."
(Emphasis added)
[2025:RJ-JD:29341] (5 of 6) [CRLMP-2344/2022]
12. Admittedly, the cognizance has been taken against the
petitioner under Section 188 of IPC by the learned trial Court in
relation to FIR No.303/2018 registered at Police Station Raipur,
District Pali filed by Tehsildar Raipur, District Pali vide order dated
18.03.2020. Section 195(a)(i) Cr.P.C., bars the trial Court from
taking cognizance of any offence punishable under Section 188 of
IPC or abetment or attempt to commit the same, unless, there is
a written complaint by the public servant for contempt of his
lawful order. Since, Section 195 of Cr.P.C. provides a particular
procedure, no Court can take cognizance in contravention of the
same. This provision has been carved out as an exception to the
general rule contained under Section 190 Cr.P.C. that any person
can set the law in motion by making a complaint, as it prohibits
the Court from taking cognizance of certain offences until and
unless, a complaint has been made by some particular authority
or person.
13. As noticed above, in the present case, the cognizance
against the petitioner for the offence under Section 188 of IPC has
been taken solely on the basis of the FIR lodged by the police
without there being any written complaint by the officer
authorized for the purpose.
14. This Court, in this view of the matter, has no hesitation in
reaching to a conclusion that the cognizance against the petitioner
has been taken by the Court of learned Judicial Magistrate, Bar,
District Pali without having any jurisdiction and the same
therefore, cannot be maintained.
15. Consequently, the instant criminal misc. petition is allowed.
The order of cognizance dated 18.03.2020 passed by the Court of
[2025:RJ-JD:29341] (6 of 6) [CRLMP-2344/2022]
learned Judicial Magistrate, Bar, Pali in Case No.303/2018 titled as
"State v. Shaitanram & Ors." is hereby quashed and set aside. The
order dated 03.03.2021 passed by learned revisional Court in
Criminal Revision Petition No.02/2021 also stands quashed and set
aside.
16. All pending applications, if any, stand disposed of
accordingly.
(KULDEEP MATHUR),J
1-himanshu/-
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