Telangana High Court

Shaik Afroz vs The State Of Telangana, on 4 October, 2024

       THE HONOURABLE SMT. JUSTICE K. SUJANA


           CRIMINAL PETITION No.8858 of 2024


ORDER:

This Criminal Petition is filed under Section 482 of Code

of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the

proceedings against the petitioners in C.C.No.942 of 2020 on

the file of the learned II Additional Judicial Magistrate of the

First Class, Nizamabad District, registered for the offences

punishable under Sections 188, 323 and 353 read with 149 of

the Indian Penal Code, 1860 (for short 'IPC').

2. The brief facts of the case are that respondent No.2-Sub

Inspector of Police registered a case against the petitioners

stating that when he along with his staff went to patrolling

duty, one B. Nikhil informed him through phone that an

accident has occurred between a lorry and a motor cycle at

Arsapally, Nizamabad and that immediately he along with his

staff went to the spot and found that a bike borne person was

died on the spot. It is further stated that due to the accident,

lot of people gathered there, due to which the traffic

obstruction occurred. Respondent No.2 while trying to clear

the traffic, the petitioners obstructed his duties and instigated

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the local police and obstructed in shifting the dead body and

behaved rudely. Thereafter, a case was numbered as Crime

No.146 of 2019 for the offences punishable under Sections

188, 323 and 353 read with 149 of IPC. After completion of

investigation, the Police filed charge sheet, vide C.C.No.942 of

2020, before the learned II Additional Judicial Magistrate of

the First Class, Nizamabad District.

3. Heard Sri Shaik Muhammed Abed, learned counsel

appearing on behalf of the petitioners as well as Sri D. Arun

Kumar, learned Additional Public Prosecutor appearing on

behalf of the respondents.

4. Learned counsel for the petitioners submitted that the

allegations leveled against the petitioners are vague and

baseless and that the ingredients in the charge sheet do not

constitute any offence. He further submitted that since there

is a bar under Section 195 (1) (a) of Cr.P.C, that when the

complaint is not made by the public servant/authorized officer

in written, the same cannot be treated as the offence

punishable under Section 188 of the I.P.C. Learned counsel

further submitted that the prime offence was under Section

188 of IPC and Section 195 of Cr.P.C bars taking cognizance

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of such offences, except upon the complaint as required under

Section 200 of Cr.P.C., therefore, the whole proceedings are

without jurisdiction. Hence, he prayed the Court to quash the

proceedings against the petitioners.

5. In support of his submissions, learned counsel for the

petitioners relied upon the judgment of the High Court of

Karnataka, Kalaburabi Bench, in the case between Saleem v.

State of Jewargi Police 1, wherein in paragraph Nos.8 and 9

it is held as under:

"8. A reading of Section 195 of Cr.P.C., and also the judgment rendered by the coordinate Bench of this Court it is clear that, if the offences formed part of same transaction of the offences contemplated under Section 191 of Cr.P.C., it is not possible to split up and hold the prosecution of accused for the other offences.

9. In the instant case, the learned Magistrate has taken cognizance of the aforesaid offences including Section 188 of IPC upon a final report submitted by the Police. In view of the above, the first information report culminating in taking cognizance of the aforesaid offences stands vitiated. Hence, the continuation of the criminal proceedings against the petitioners - accused herein, will be abuse of process of law."

NC: 2023: KHC-K:5165, Crl.P.No. 201403 of 2019

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6. On the other hand, learned Additional Public Prosecutor

submitted that the petitioners have also been charged for the

offences other than Section 188 of IPC. Hence, the learned

Magistrate has rightly taken cognizance of the aforesaid

offences, on the basis of the final report submitted by the

Police. As such, the proceedings cannot be vitiated. Under

such circumstances, the cognizance taken by the learned

Magistrate, cannot be said to be one without authority of law.

Therefore, he prayed the Court to dismiss the criminal

petition.

7. In the light of the submissions made by both the

learned counsel and a perusal of the material available on

record, it appears that the petitioners were charged for the

offences punishable under Section 188, 323 and 353 read

with 149 of IPC. It is specifically contended by the learned

counsel for the petitioners that as there is a bar under Section

195 (1) (a) of Cr.P.C., whereunder, a written complaint has to

be filed by the public servant/authorized officer, the Police

has to follow the same, but the same is not followed in the

present case. Further, at this stage, it is imperative to note

the relevant Sections, which are as follows:

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8. Section 188 of the I.P.C reads as follows:

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.

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.

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".

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9. Section 195(i) (a) of Cr.P.C., reads as under:-

"(i) (a) 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;"

10. Reverting to the facts of the case on hand, a perusal of

Section 188 of IPC makes clear that to take cognizance there

should be a written complaint and such complaint should be

filed either by the officer issuing such promulgation order or

the officer above his rank. Further, Section 2 (d) of Cr.P.C.,

defines complaint as allegations made orally or in writing to

the Magistrate with a view to the Magistrate taking action on

such complaint, the Magistrate can take cognizance under

Section 190 (1)(a) of Cr.P.C.. Thereafter, the procedure

prescribed under Section 200 of Cr.P.C has to be followed.

Therefore, the first information report, charge sheet and the

order taking cognizance on such charge sheet are without

jurisdiction.

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11. Further, it is significant to note the judgement of the

Honourable Supreme Court in State of Karnataka v.

Hermareddy 2, wherein in paragraph No.8, it is held as under:

"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 196 (1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 196 (1)(b) of the Code of Criminal Procedure should be upheld"

(Emphasis supplied)

12. In the instant case, a perusal of the charge sheet

discloses that the petitioners are sought to be prosecuted for

the offence punishable under Section 188 of IPC including

other penal provisions i.e., 323 and 353 read with 149 of IPC.

As per the judgment of the Hon'ble Supreme Court in

Hermareddy (supra) it is clear that if the offences formed part

of the same transaction of the offences contemplated under

Section 191 of Cr.P.C., it is not possible to split up and hold

the prosecution of accused for the other offences. In view of

the above, the FIR culminating in taking cognizance of the

AIR 1981 SC 1417