Karnataka High Court
Mohammed Adil C vs National Investigating Agency on 29 April, 2025
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CRL.P No. 7341 of 2022
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
CRIMINAL PETITION NO.7341 OF 2022
BETWEEN:
1. MOHAMMED ADIL .C
S/O MOHAMMED FAROOQ .C
AGED ABOUT 27 YEARS,
R/AT NO.5, 3RD MAIN,
BHARATH MATHA LAYOUT
NEAR MAKKA MASJID, VENKATESHPURA,
KG HALLI, BENGALURU-560045.
2. ABDUL LATHIF .C S/O MOHAMMED FAROOQ .C
AGED ABOUT 31 YEARS,
R/AT NO.5, 3RD MAIN,
BHARATH MATHA LAYOUT
NEAR MAKKA MASJID, VENKATESHPURA,
KG HALLI, BENGALURU-560045.
Digitally signed by
MAHALAKSHMI B M 3. IRFAN KHAN S/O DASTAGIR KHAN
Location: HIGH AGED ABOUT 29 YEARS,
COURT OF R/AT NO.1057, 13TH CROSS,
KARNATAKA NEAR GANPATI TEMPLE,
GOVINDAPURA MAIN ROAD,
AC POST, BANGALORE-560045.
4. AKBAR KHAN S/O LATE AMAN ULLAH KHAN
AGED ABOUT 40 YEARS,
R/A PRESENT ADDRESS
NO.27/107, YALLAMMA TEMPLE ROAD,
2ND CROSS, GOVINDAPURA,
BANGALORE-560045.
5. KALEEM ULLA @ SHAHRUKH
S/O RAHAMUTHULLA
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CRL.P No. 7341 of 2022
AGED ABOUT 29 YEARS,
R/A NO.12, 11TH CROSS,
VINOBHA NAGAR, K G HALLLI,
BANGALORE-560045. ... PETITIONERS
(BY SRI MOHAMMED TAHIR, ADVOCATE)
AND:
NATIONAL INVESTIGATING AGENCY (HYDERABAD)
REP. BY SPL. PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP. TO VIDHANA SOUDHA
BANGALORE-560001. ... RESPONDENT
(BY SRI P. PRASANNA KUMAR, SPL. PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C. PRAYING TO QUASH THE CHARGE SHEET DATED 02.02.2021
AT ANNEXURE-D FILED IN SPL.C.C.NO.141/2021 BY THE
RESPONDENT i.e., NATIONAL INVESTIGATION AGENCY
(HYDERABAD), SAME IS PENDING BEFORE THE HON'BLE XLIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT
FOR TRIAL OF NIA CASES) (CCH-50), BENGALURU FOR THE
OFFENCE P/U/S 120B, 143, 145, 147, 188, 353, 427, R/W 34 AND
149 OF IPC AND SECTION 2 OF PREVENTION OF DESTRUCTION OF
LOSS OF PROPERTY ACT, 1981 AND CONSEQUENTLY QUASH THE
COGNIZANCE ORDER DATED 16.02.2021 AT ANNEXURE-E PASSED
BY THE HON'BLE XLIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) (CCH-50),
BENGALURU, AGAINST THE PETITIONERS, WHEREIN THE
PETITIONERS ARE ARRIVED AS ACCUSED NO.36, 37, 51, 53 AND 54.
Date on which the petition was 01.04.2025
reserved for Order
Date on which the Order was 29.04.2025
pronounced
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MRS JUSTICE K.S. HEMALEKHA
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CRL.P No. 7341 of 2022
CAV ORDER
(Per: Hon'ble Mrs Justice K.S. Hemalekha)
The petitioners who are arrayed as accused Nos.36,
37, 51, 53 and 54 in Special Case No.141/2021 are seeking
to quash the charge sheet dated 02.02.2021 for the offences
punishable under Sections 120B, 143, 145, 147, 188, 353
and 427 read with Sections 34 and 149 of IPC and Section 2
of the Prevention of Destruction of Loss of Property Act,
1981 and order dated 16.02.2021 taking cognizance passed
by the XLIX Additional City Civil and Sessions Judge (Special
Court for Trial of NIA cases) (CCH-50) at Bengaluru ('Trial
Court' for short).
2. On 11.08.2020 at about 8.45 p.m., a group of 25
to 30 people gathered in front of Kadugondana Halli (KG
Halli) Police Station and started shouting slogans demanding
arrest of one Naveen, nephew of Sri.Akhanda Srinivasa
Murthy, MLA who had posted certain derogatory message on
his facebook account, insulting the religious faith of the
people who belonged to a particular religion. At about
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8.50 p.m., another group of people under the leadership of
one Syed Ikramuddin entered K.G.Halli police station,
demanding registration of a case against Naveen and others.
The complaint was accepted by the police and registered
NCR for preliminary enquiry as a case vide FIR No. 195/2020
was already registered on the same set of fact at Devara
Jeevana Halli (D J Halli) on 11.08.2020.
3. The gathering at K.G.Halli police station was
increasing gradually and becoming violent. Considering the
violent situation which had already erupted at D.J.Halli police
station area and furthermore gathering at K.G.Halli police
station on 11.08.2020 at 21.00 hours, the Commissioner
imposed curfew in D.J.Halli and K.G.Halli police station
areas. The gathering of mob turned unruly and intensified
their protest, which led to untold incidents and registration of
FIR against all those who were involved in the incidents that
happened on that date. Initially a crime vide FIR
No.229/2020, dated 12.08.2020 under Sections 143, 147,
148, 149, 332, 333, 353, 427 and 436 of IPC and Section 4
of the Prevention of Damage to Public Property Act, 1984
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was registered against the petitioners and other unknown
persons. The Central Government, Ministry of Home Affairs,
New Delhi having regard to the gravity of offence directed
the NIA to take up the investigation of the said case
pursuant to which a charge sheet was filed against the
petitioners for the offences punishable as aforesaid.
4. Heard the learned counsel appearing for the
petitioners Sri Mohammed Tahir and the learned counsel Sri
P Prasanna Kumar, appearing for NIA.
5. The petitioners' counsel argued that the
cognizance taken by the trial Court for the offence
punishable under Section 188 of the IPC, along with other
offences, is improper due to the statutory bar under Section
195(1)(a) Cr.P.C. It is argued that the respondent should
have filed a written complaint as required by the provision. It
is argued that the charges under Sections 141, 143, 145,
147 of IPC are all related to the violation of Section 188 of
the IPC. Therefore, they contend that the statutory bar
under Section 195 (1) (a) Cr.P.C. should also apply to these
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consequential offences, preventing cognizance from being
taken without the required written complaint. Reliance is
placed on the following decisions:
i. Central Bureau of Investigation Vs. M.
Sivamani1(M. Sivamani)
ii. State of Uttar Pradesh Vs. Suresh Chandra
Srivastava and others2 (Suresh Chandra
Srivastava)
iii. Ramji Bhikha Koli and others Vs. State of
Gujarat3 (Ramji Bhikha Koli)
iv. M.R. Ajayan Vs. State of Kerala and others4
(M.R. Ajayan)
v. Kevalbhai Dilipbhai Thanki and others Vs.
State of Gujarat5 (Kevalbhai Dilipbhai Thanki)
vi. Rajashekharananda Swamiji Vs. The State of
Karnataka6 (Rajashekharananda Swamiji)
1
(2017) 14 SCC 855
2
(1984) 3 SCC 92
3
1998 SCC Online Guj 296
4
2024 SCC Online SC 3373
5
Crl. Misc. Appl No.23778/2019 DD 28.07.2023
6
WP No.13328/2018 D.D. 18.06.2021
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6. Learned counsel for the petitioners submits that
various High Courts, including our High Court by placing
reliance on the decision of the Apex Court in the case of
State of Karnataka Vs. Hemareddy @ Vemareddy and
another7 (Hemareddy) have ruled that no committal Court
can take cognizance of offences listed under Section 195
Cr.P.C. without a written complaint from the concerned
public servant. The counsel contends that the petitioners
face charges under Section 188 IPC, which is covered by
Section 195 Cr.P.C, and that the other charges, including
Sections 120B, 143, 145, 147, 353, 427, 34 and 149 IPC,
although not directly covered under Section 195, are part of
the same transaction and should therefore be treated as
interconnected offences.
7. Sri P. Prasanna Kumar, learned Special Public
Prosecutor for NIA acknowledges that Section 195 (1) (a) of
Cr.P.C. mandates that cognizance can only be taken if a
written complaint is filed by the concerned public servant or
their superior. However, the counsel argues that this
7
(1981) 2 SCC 185
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provision should be interpreted in the light of its legislative
intent. Specifically, the bar under Section 195 is designed to
protect individuals from false or frivolous proceedings
initiated by private parties. The counsel contends that the
legislative intent does not extend this prohibition to offences
that are not directly related to those specified under Section
195 (1) (a) Cr.P.C. Therefore, the absence of a complaint
under Section 195 does not undermine the validity of the
prosecution case, nor is fatal to the entire case. Reliance is
placed on the following decisions:
i. C. Muniappan and others Vs. State of Tamil
Nadu8 (C. Muniappan)
ii. State of Karnataka Vs. Hemareddy @
Vemareddy and another9(Hemareddy)
8. Referring to Hemareddy's case, counsel for the
NIA submits that the Apex Court dealt with a situation where
multiple offences were committed during the same
transaction, some of which require a written complaint under
Section 195 (1) (b) Cr.P.C. and others do not. The Apex
8
(2010) 9 SCC 567
9
(1981) 2 SCC 185
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Court observed that the prosecution cannot proceed with
some charges (those not requiring a complaint) while holding
back on other (those which do require a complaint), if they
are all part of the offences committed in the same
transaction.
9. Having heard the learned counsel on both sides,
the question that falls for consideration before this Court is:
"Whether the non-compliance with the mandatory
requirements under Section 195 (1) (a) of Cr.P.C.
vitiates the cognizance of other distinct and
unrelated offences charged against the accused,
which are not incidental to or any intrinsically
connected with the offences mentioned under
Section 195 (1) (a) Cr.P.C.?"
10. To answer the question framed by this Court we
need to consider and look into the provisions of Section 195
(1) (a) of Cr. P.C., which reads as under:
"195. Prosecution for contempt of lawful
authority of public servants, for offences
against public justice and for offences
relating to documents given in evidence.-
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(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."
11. Section 195 (1) (a) Cr.P.C. imposes a
jurisdictional bar on Courts from taking cognizance of certain
offences punishable under Sections 172 to 188 IPC or any
abetment of, or attempt to commit, such offence, or any
criminal conspiracy to commit such offence, unless a
complaint in writing is made by a public servant concerned
or their superior. The intent of the legislature behind
providing a particular procedure is to see that the individual
should not face any criminal prosecution instituted upon
insufficient grounds by persons actuated by malice, ill-will or
frivolity of disposition and to save the time of the criminal
Courts being wasted by endless prosecution. The Apex Court
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in the case of C. Muniappan stated supra, taking into
consideration the intent behind such provision, has observed
that the law does not permit taking cognizance of an offence
under Section 188 of IPC unless there is complaint in writing
by the competent public servant. It was observed that the
absence of a complaint under Section 195 Cr.P.C. does not
falsify the genesis of the prosecution case and is not fatal to
the entire prosecution case.
12. The petitioners were charged for the offences
made punishable under Section 188 IPC and also charged
with other offences punishable under Sections 120B, 143,
145, 147, 353, and 427 read with Sections 34 and 149 of
IPC, which are not covered under Section 195 Cr.P.C. The
incident that occurred on 11.08.2020 at about 8.45 hours
was regarding a gathering of 25 to 30 people in front of K.G.
Halli Police station demanding the arrest of one Naveen.
Gradually the crowd increased and the mob became violent.
The Commissioner of Police, in view of the increasing crowd
and violence, imposed curfew. The imposition of curfew is in
furtherance of the formation of unlawful assembly. The
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settled proposition is that where an accused commits some
offences which are separate and distinct from those
contained in Section 195, Section 195 will affect only the
offences mentioned therein unless such other offences form
an integral part of the same so as to amount to offences
committed as part of the same transaction.
13. The other offences charged against the
petitioners do not fall within the ambit of Section 195 nor
they are integral part of the offence constituting and made
punishable under Section 188 of IPC. The offences charged
against the petitioners under Sections 120B, 143, 145, 147,
353 and 427 read with Sections 34 and 149 of IPC can be
split as a separate offence from the offence that is barred
under Section 195 (1) (a) of Cr.P.C.
14. The Apex Court in the case of Hemareddy
examined the applicability of Section 195 (1) (b) Cr.P.C.
which restricts the Courts from taking cognizance of certain
offences, such as forgery, when the document in question
has been presented in a judicial proceeding unless a
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complaint is made by the Court concerned. The Court
observed that in case, where in the course of the same
transaction an offence for which no complaint by a Court is
necessary under Section 195 (1) (b) of Cr. P.C. 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 195 (1) (b) Cr.P.C should be
upheld.
15. The facts in Hemareddy's case are narrated here
for better understanding of the dispute that evolved in
Hemareddy's case. The dispute originated when Narsappa
Eliger, the legatee of Nagappa's heir, discovered that the
land belonging to Nagappa's family had been fraudulently
sold. Pyatal Bhimakka (accused No.2), who falsely claimed
to be Nagappa's wife, along with an accomplice, created
forged deed to transfer ownership of land to Hemareddy @
Vemareddy (accused No.1). Upon uncovering this fraud,
Eliger initiated both civil and criminal proceedings against the
accused. The issue involved in the said case was whether
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Hemareddy committed the offence of forgery under Section
467 and whether the proceeding against him was initiated in
accordance with the procedural requirements under the
Cr.P.C. The Civil Court ruled in favor of Eliger, and the
Criminal Court convicted the accused for cheating and
forgery. However, the High Court acquitted Hemareddy of
the offence under Section 193 of IPC, holding that the
complaint was filed by a private individual for prosecuting
under that Section, as the offence was alleged to have been
committed in or in relation to a proceeding in a Court by
Hemareddy in his character as party to such proceedings.
The High Court observed that for offences under certain
Sections, a complaint by the Court is necessary, and such
offences should be directly linked to proceedings in which the
accused was a party at the time of offence.
16. However, the Apex Court in Hemareddy's case
reviewed and clarified that offences under Sections 467 and
114 of IPC, which relate to forgery and abatement, do not
require a complaint by the Court if the offence was
committed independently of any Court proceeding or prior to
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the accused becoming a party to such proceedings. The
Apex Court observed that the offence of forgery was
complete at the time of fabrication and registration of the
forged document, and since the forged document was not
produced or used in evidence in the relevant proceeding, the
procedural requirement of a Court complaint under Section
195(1)(b) of Cr.P.C was not applicable. The Apex Court
observed that the prosecution could be validly initiated by a
private complaint for the offences under Sections 467 and
114 of IPC and the procedural restriction that applies to
offence under Section 193 of IPC does not extend to these
offences when they are committed outside or prior to Court
proceedings. The Apex Court clarified that even if the same
transaction involves multiple offences, some of which are
subject to the procedural requirement of a Court complaint,
the prosecution for offences like forgery under Section 467
and abatement under Section 114 can proceed based on
private complaints without being barred by the provisions of
Section 195(1)(b) of Cr.P.C. The Apex Court emphasized
that the procedural restrictions are confined to offences
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closely linked to judicial proceedings and do not extend to
offences committed outside or prior to such proceedings.
17. Thus what can be gathered is, when the
prosecution is for multiple offences arising out of the same
transaction, the entire prosecution case is barred even if one
of those offences falls within the mandatory complaint
requirement under Section 195 (1) (b) of the Cr.P.C. The
Apex Court in Hemareddy's case thus recognized a fine
distinction with respect to the offences committed in the
same transaction, emphasizing that they cannot be
separated to circumvent the procedural safeguard prescribed
under the law. In the present case, the other offences
charged against the petitioners do not form the integral part
of Section 188 so as to amount to offences committed as
part of the same transaction and do not fall under the ambit
of Section 195 (1)(a) Cr.P.C. The requirement of formal
complaint from a public servant under Section 195 (1) (a) of
Cr.P.C applies specifically to the offences enumerated under
Sections 172 to 188 IPC. The accused is charged with the
additional offences outside Section 195 (1) (a) Cr.P.C., the
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absence of such complaint does not invalidate the entire
prosecution.
18. At this juncture it is necessary to address the
precedents relied upon by the petitioners.
19. The Apex Court in the case of Sivamani, stated
supra, observed that when an investigation is ordered by the
High Court, the bar under Section 195(1)(a) Cr.P.C. does not
apply and further observed that in such circumstances taking
cognizance of the offences without a separate complaint
from the public servant was justified. The legal context,
statutory provisions involved and factual background in
Sivamani's case are entirely distinct and the said judgment
has no application to the facts and legal issues in the present
case. The Apex Court in the case of Sureshchandra, stated
supra, where the facts were regarding the applicability of
Section 195(1)(b)(ii) Cr.P.C. restricts Court from taking
cognizance of specific offences, such as forgery, when they
are alleged to have been committed concerning documents
produced or given in evidence in a Court, without a
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complaint in writing by that Court. The Apex Court in the
facts of that case which was regarding the forgery of Court
fees stamps observed that the alleged forgery did not involve
documents produced or given in evidence in Court
proceedings and therefore the bar under Section
195(1)(b)(ii) Cr.P.C. was not applicable. The decision
rendered does not assist the petitioner in the current factual
and legal context. The Gujarat High Court in the case of
Ramji Bhikha Koli, stated supra, in the facts and
circumstances of the said case observed that the offences
charged against the petitioner therein under Sections 143,
147, 148, 149, 332, 333 and 307 of IPC cannot be split from
the complaint for a separate offence and thereby held that
the cognizance in respect to said offences are also barred
under Section 195(1)(a)(i) of Cr.P.C. The said decision is
distinguishable; it is not applicable to the present facts as
the petitioner was charged with an offence made punishable
under Section 188 of IPC and the other offences made
punishable under Section 143, 147, 148, 149, 332, 333 and
307 of IPC. The other offences are separate and distinct
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from those contained in Section 195 and do not form an
integral part of the same transaction. Hence the said
decision is not applicable to the present facts.
20. In the case of M R Ajayan, stated supra, the
case originated from allegations of evidence tampering. The
issue involved therein was whether the bar under Section
195(1)(b) Cr.P.C. precluded the initiation of proceedings for
evidence tampering without a complaint from the Court
concerned. The Apex Court emphasized that in matters of
significant public interest, especially those concerning the
administration of justice, the threshold for locus standi is
relaxed to allow individuals with bona fide intention to seek
judicial redress. The Apex Court clarified that the bar under
Section 195(1)(b) is not attracted when the High Court,
acting as a superior Court directs a complaint to be filed.
The facts and the law declared by the Apex Court in the case
of M R Ajayan is distinguishable and not applicable to the
present facts as the case on hand involves multiple IPC
offences which are not dependant upon Section 188 of IPC.
Thus, the bar under Section 195 Cr.P.C. cannot extend to the
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entire prosecution in this case. The decision of the Gujarat
High Court in the case of Kevalbhai Dilipbhai Thanki took
similar view as in the case of Ramji Bhikha Koli and
observed that the offences other than one punishable under
Section 195 Cr.P.C. are inseparable and are related to the
offence for which a complaint of the Court or of a public
servant is required or mandatory then a bar created under
Section 195 of Cr.P.C. has to be invoked.
21. The decision of this Court in the case of
Rajashekharananda Swamiji, stated supra, is also
distinguishable and not applicable to the present facts and do
not aid the petitioners' contention.
22. A close scrutiny reveals that the decision relied on
by the petitioners are not applicable to the present facts
either on facts or law and hence cannot be of any assistance
to the petitioners.
23. In the instant case, the investigation conducted
by the respondent reveals that on 11.08.2020, a large
crowd, consisting of 25 to 30 people, gathered outside the
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K.G. Halli Police station, demanding the arrest of an
individual named Naveen. As the crowd grew in number and
became increasingly violent, the Commissioner of Police
imposed curfew. Curfew was imposed only after formation of
unlawful assembly and escalation of situation. The
petitioner's argument that the offences under Sections 141,
143, 145 and 147 of the IPC (which deal with unlawful
assembly and rioting) are incidental to the offence under
Section 188 of the IPC (which concerns disobedience of
public orders) is rejected for the reason that the formation of
unlawful assembly and the violence occurred prior to the
imposition of the curfew, which means that the offences
under the IPC were already committed, thus they were
independent offence under Section 188 of IPC. The
contention that absence of a written complaint under Section
195 Cr.P.C. vitiates the entire proceeding is therefore
untenable, and the point framed for consideration is
answered accordingly, and this Court passes the following:
ORDER
Criminal Petition is hereby dismissed.
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NC: 2025:KHC:17621-DB CRL.P No. 7341 of 2022 Per: Hon'ble Mr Justice Sreenivas Harish Kumar At the outset I express my full concurrence to the reasons recorded by Hon'ble Mrs. Justice K.S.Hemalekha. But I think that a further analysis is necessary to hold that the issue raised by Sri Mohammed Tahir is not worth acceptance.
2. His argument was that since it is alleged that offence under Section 188 of IPC was committed, prosecution of the petitioners for the said offence and other IPC offences on a police report under Section 173 of Cr.P.C. is vitiated inasmuch as whenever offences punishable under Sections 172 to 188 of IPC are committed, court cannot take cognizance without a complaint in writing of the public servant concerned or some other public servants to whom he is administratively subordinate. He also made it a point of argument that just because the NIA took over investigation and invoked the offences punishable under Sections 15, 16, 18 and 20 of the UAP Act besides the offences punishable under Sections 120B, 143, 145, 148, 353 and 427 read with Section 149 of IPC and Section 2 of Prevention of Damage to
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3. Sri P.Prasanna Kumar, learned Spl.PP for the respondent/NIA argued that even before the Commissioner of Police imposed curfew, about 25 to 30 people had gathered in front of K.G.Halli police station demanding arrest of Naveen. The crowd increased and turned violent. It was an unlawful assembly for committing various offences. Curfew was imposed after formation of unlawful assembly. Therefore the offence under Section 188 of IPC was subsequent to occurrence of other offences under IPC, and in these circumstances the police or the NIA could file charge sheet and a complaint is not necessary at all. He also argued that the bar contained under Section 195(1)(a) of Cr.P.C. is to protect an innocent person from a false or frivolous proceeding instituted by a private person. In this case investigation was undertaken by the NIA pursuant to
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4. Sri Mohammed Tahir has placed reliance on the judgment of the Supreme Court in Central Bureau of Investigation v. M.Sivamani10. The Hon'ble Supreme court has held as below:
12. We have considered the rival submissions.
We find merit in the contention raised on behalf of the appellant. While the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person. The expression "the public servant or his administrative superior" cannot exclude the High Court. It is clearly implicit in the direction of the High Court quoted above that it was necessary in the interest of justice to take cognizance of the offence in question. Direction of the High Court is at par with the direction of an administrative superior public servant to file a 10 2 017 (14 ) S CC 8 5 5
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NC: 2025:KHC:17621-DB CRL.P No. 7341 of 2022 complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. The view taken by the High Court will frustrate the object of law and cannot be sustained.
(emphasis supplied)
5. Therefore from the above decision it is clear that the embargo found in Section 195 of Cr.P.C. is to protect an innocent person from a false or frivolous proceeding initiated by a private person. If a public servant initiates criminal action, it conveys a meaning that in all probability the proceeding initiated is not on false ground. That apart the issue that has been raised in this writ petition can be examined from another angle which is as below.
6. Section 190 of Cr.P.C. enables a Magistrate to take cognizance of any offence,
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(i) Upon receiving a complaint of facts which constitute an offence
(ii) upon a police report of such facts
(iii) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
7. If an FIR is registered, necessarily the police officer has to investigate and submit a report under Sections 168 or 173 of Cr.P.C. That means whenever investigation is by the police, the court can take cognizance only upon a report of the police as envisaged under Section 190(b) of Cr.P.C. A police officer is not expected to file a complaint. Section 2(d) of Cr.P.C. defines a complaint as below:
"2.......
(d) "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 known or unknown, has committed an offence, but does not include a police report."
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8. It is clear that complaint does not include a police report. Section 195(1)(a) of Cr.P.C. clearly bars taking cognizance except on a complaint of the public servant concerned or some other public servant to whom he is administratively subordinate in respect of any offence punishable under Sections 172 to 188 (both inclusive) of IPC; or any abetment of, attempt to commit such offence, or of any criminal conspiracy to commit such offence. The offences mentioned in Section 195(1)(b)(i) to (iii) require a complaint in writing by the court or an officer of the court.
9. In the case on hand Section 188 of IPC was invoked and this was the reason for the petitioners' strong objection to taking cognizance on a charge sheet submitted by the NIA. The offences made punishable under Sections 172 to 190 fall under Chapter-X of IPC and they relate to showing contempt to the lawful authority or a public servant. Section 195 (1)(a)(i) restricts applicability of the embargo only for the offences under Sections 172 to 188 of IPC,
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NC: 2025:KHC:17621-DB CRL.P No. 7341 of 2022 offences under Sections 189 and 190 are excluded. Some of the offences under Sections 172 to 188 are cognizable and some are non-cognizable. The offence under Section 188 of IPC is cognizable. Whenever other offences under IPC and other laws are invoked along with any of the offences under Sections 172 to 188 of IPC, what actually is the procedure to be followed by a court for taking cognizance is not clearly found in Cr.P.C. But this position can be clearly explained away with reference to Section 198 of Cr.P.C. The said section deals with taking cognizance of an offence relating to marriage upon a complaint only. If there is an allegation against a husband of committing an offence under Section 498A of IPC along with Section 494 of IPC, can it be said that the court cannot take cognizance upon a charge sheet filed by the police for the offences under Sections 494 and 498A of IPC. The answer to this is found in the decision of the Hon'ble Supreme Court in State of Orissa v. Sharat Chandra Sahu and another11.
11
AI R 1 99 7 SC 1
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10. The facts in this case were that the wife approached Women's Commission with grievances that her husband had contracted second marriage and that she used to be harassed for the sake of money. The Women's Commission forwarded the wife's written complaint to the police who later on registered FIR, held investigation and filed charge sheet in the court of Sub-Divisional Judicial Magistrate for the offences under Sections 494 and 498A of IPC. The husband challenged the charges framed against him by filing a petition under Section 482 of Cr.P.C. The High Court passed an order quashing the charge under Section 494 of IPC on the ground that the wife herself should have filed a complaint personally in view of Section 198(1) of Cr.P.C., however charge under Section 498A was sustained for trial. In this context, taking note of Section 198 and Section 155 of Cr.P.C. the Hon'ble Supreme Court held as below:
14. The High Court was thus clearly in error in quashing the charge under Section 494 I.P.C. on the ground that the Trial Court could not take cognizance of that offence unless a complaint was filed
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NC: 2025:KHC:17621-DB CRL.P No. 7341 of 2022 personally by the wife or any other near relation contemplated by Clause (c) of the Proviso to Section 198(1).
15. The Judgment of the High Court being erroneous has to be set aside. The appeal is consequently allowed. The Judgment and order dated 3rd May, 1995 passed by the Orissa High Court in so far as it purports to quash the charge under Section 494 I.P.C. and the proceedings relating thereto is set aside with the direction to the Magistrate to proceed with the case and dispose it of expeditiously.
11. To come to above conclusion, the Supreme Court recorded the reasons which are found in paras 10 to 13, that are as follows:
10. Sub-section (4) of this Section clearly provides that where the case relates to two offences of which one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offence or offences are non-cognizable.
11. Sub-section (4) creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the
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NC: 2025:KHC:17621-DB CRL.P No. 7341 of 2022 non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated a cognizable, the police had no option but to investigate the whole of the case and to submit a charge- sheet in respect of all the offences, cognizable or non- cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed.
12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non- cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in Sub- section (4) provides that even non- cognizable.
13. This Court in Preveen Chandra Mody vs. State of M.P. AIR 1965 SC 1185 has held that while investigating a cognizable offences and presenting a charge-sheet for it, the police are not debarred from investigation any non- cognizable offence arising out
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NC: 2025:KHC:17621-DB CRL.P No. 7341 of 2022 of the same facts and including them in the charge- sheet.
12. The above judgment finds pertinence not in view of applicability of Section 155(4) of Cr.P.C., but in view of permitting prosecution upon charge sheet filed by police for the offences under Sections 494 and 498A of IPC. If strict interpretation is given, the whole proceeding should have been quashed for want of complaint by the wife. Applying the same analogy here, order of taking cognizance cannot be said to be invalid or bad for want of complaint in accordance with Section 195(1)(a) of Cr.P.C. Position is different if offence under Section 188 of IPC alone is committed; in that event a complaint needs to be filed. Illustration to Section 188 of IPC gives an inkling to understand its scope. A public servant issues a promulgation prohibiting a procession being taken in a certain street; it is disobeyed causing a danger of riot. If riot had taken place after promulgation, the offence of riot becomes integral part of Section 188 of IPC necessitating in that event a complaint to be filed. Conversely by the time promulgation was issued, some
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NC: 2025:KHC:17621-DB CRL.P No. 7341 of 2022 offences in respect of which police can conduct investigation had already taken place, the police can file charge sheet for all the offences including Section 188 of IPC. The present case falls under second category. Besides this there is an allegation that there was conspiracy to commit offences. But there could be no conspiracy to commit offence under Section 188 of IPC; if at all there were to be any conspiracy it was for committing other offences, not the one under Section 188 of IPC, which appears to be incidental here.
13. Sri Mohammed Tahir has relied on two orders passed by two single judge benches of this court in W.P.No.13328/2018 and Crl.P.No.2896/2022 following judgment of Supreme Court in Hemareddy (supra) where there is a reference to Section 195(1)(b) of Cr.P.C. Section 195(1)(a) and Section 195(1)(b) indeed require a complaint to be filed, but Section 195(1)(a) requires complaint to be filed by a public servant, and according to Section 195(1)(b), complaint can be filed only by a court or a duly authorized officer of the court. Clear distinction between clauses (a) and (b) of Sub-section (1) of Section 195 of Cr.P.C. is
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NC: 2025:KHC:17621-DB CRL.P No. 7341 of 2022 apparent. Therefore the ratio in Hemareddy is not helpful to the petitioners.
14. As has been held by the Supreme Court in C.Muniappan and Others v. State of Tamilnadu12, the real test is whether facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. It is held as below:
"29. The test of whether there is evasion or non- compliance of Section 195 Cr.P.C or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.P.C. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it."12
(2 01 0 ) 9 SCC 5 67
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15. Here the facts do not disclose that offences of that type in relation to which a public servant could set law into motion by filing a complaint, had taken place. The NIA, which is a responsible investigation institution, having noticed that the nature and gravity of offences was a threat to unity and integrity of the nation took over investigation upon its entrustment to it, and filed the charge sheet. In case offence under Section 188 of IPC had been omitted from the charge sheet, it would not have affected the prosecution case. Applying this test, it can very well be said that there is no scope for applying Section 195(1)(a) of Cr.P.C. For all these reasons the argument of Sri Mohammed Tahir fails and therefore this criminal petition deserves dismissal.
Sd/-
(SREENIVAS HARISH KUMAR) JUDGE Sd/-
(K.S. HEMALEKHA) JUDGE MBM, YKL/KMV List No.: 1 Sl No.: 1