Telangana High Court

Patlolla Amarendar Reddy vs The State Of Telangana on 11 September, 2024

       THE HONOURABLE SMT. JUSTICE K. SUJANA


           CRIMINAL PETITION No.10630 of 2024


ORDER:

This Criminal Petition is filed under Section 528 of

Bharatiya Nagarik Suraksha Sanhita (for short 'BNSS') to

quash the proceedings against the petitioners/accused Nos.1

and 2 in C.C.No.382 of 2024 on the file of the learned Judicial

Magistrate of First Class-cum-Principal Junior Civil Judge,

Vikarabad, registered for the offences punishable under

Section 186 of the Indian Penal Code, 1860 (for short 'IPC')

and Section 214 of the Telangana Panchayatraj Act, 2018 (for

short 'the Act').

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

Head constable lodged a complaint before the Police against

the petitioners stating that as per the instructions of his

superior officers, he was performing his duty in Route Mobile

No.05 in MPTC/ZPTC Elections, 2019 at Mominpet Mandal. It

is further stated that on 13.05.2019 when he along with his

staff were performing the patrolling duty at Morangapally

Village, Patlolla Amarender Reddy, 20 members were standing

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in front of Ex-MPTC House and conducting the election

campaign. It is further stated that he instructed them not to

campaign, but they denied and argued with the Police and

obstructed their legitimate duties and they threatened with

dire consequences. Basing on the said complaint, a case was

registered against the petitioners in Crime No.73 of 2019 for

the offences punishable under Section 186 of IPC and Section

214 of the Act. After completion of investigation, the Police

filed charge sheet, vide C.C.No.382 of 2024, before the learned

Judicial Magistrate of First Class-cum-Principal Junior Civil

Judge, Vikarabad.

3. Heard Sri Koppula Gopal, 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

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in written, the same cannot be treated as the offence

punishable under Section 186 of the I.P.C. Learned counsel

further submitted that the prime offence was under Section

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

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

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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."

6. On the other hand, learned Additional Public Prosecutor

submitted that the petitioners have also been charged for the

offences other than Section 186 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 186 of IPC and Section 214 of the

Act. 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

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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:

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.

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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".

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 186 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

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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.

11. Further, it is significant to note the Judgment 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 186 of IPC including

other provisions i.e., 214 of the Act. As per the Judgment of

the Hon'ble Supreme Court in Hermareddy (supra) it is clear

AIR 1981 SC 1417

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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