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Madhya Pradesh High Court

Komal Savita vs The State Of Madhya Pradesh on 21 August, 2015

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                   M.Cr.C. No. 4031/2014
          Komal Savita Vs. State of M.P. and another

21/08/2015
      Shri Sanjay Bahirani, Advocate for the petitioner.
      Shri   Kuldeep    Singh,    Panel    Lawyer      for   the
respondent/State.

With the consent of parties, this petition is finally heard at the stage of motion.

The factual matrix lies in a narrow compass. On the basis of the inspection made by the Tahsildar pursuant with the direction of the District Magistrate, the establishment of M/s Shanti Gun House, Proprietor Komal Kumar Savita, Dealer, Ganga Mai Santar, Morar was inspected. After the inspection, the District Administration and Police Administration found the Dealer's non- compliance of the orders issued by the office of the District Magistrate, therefore, FIR was lodged at Police Station Morar as Crime No. 71/2013 dated 16.09.2013 for offence under Section 188 of IPC against the accused proprietor Komal Kumar.

It is also seen that regarding the same inspection, on the report of Naib Tahsildar and Executive Magistrate, Gwalior, conducted on 05.09.2013 against the petitioner vide order dated 28.10.2013, learned District Magistrate, after enumerating the non-compliance of orders of the 2 M.Cr.C. No. 4031/2014 Komal Savita Vs. State of M.P. and another District Magistrate, and showing the circumstances in which the order could not be complies with, exonerated the petitioner. However, the District Magistrate also mentioned that crime already registered against the petitioner will remain unaffected by this order.

The petitioner has requested to quash Crime No. 71/2013 under Section 188 of IPC as well as order dated 28.10.2013 passed by the District Magistrate on the ground that for the same offence, the petitioner should not be tried twice and as the complaint was not lodged by the District Magistrate before the competent Court or before the Public Authority, trial of offence under Section 188 of IPC is vitiated.

On perusal of the record, it is found that on 05.09.2013, joint inspection was conducted by the Executive Magistrate as well as Police Department at M/s Gun House, arms dealer and after finding some non- compliance, report was prepared and on the basis of this report, Crime No. 71/2013 was registered at Police Station Morar for offence under Section 188 of IPC.

Vide a detailed order dated 28.10.2013, learned District Magistrate exonerated the petitioner for the non- compliance and warned the firm for future compliance.

Komal Savita Vs. State of M.P. and another Keeping in view the above, the present petition is liable to be allowed for the reasons that:-

(1) Under Section 300 of Cr.P.C., the petitioner is cannot be tried for the same offence twice.

(2) Section 195 of Cr.P.C. provides for taking cognizance of such offences of contempt of lawful authority or public servant in which it is prescribed that no Court shall take cognizance of any offence punishable under Section 172 to 188 (both inclusive) of IPC, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

In the present case, FIR dated 16.09.2013 is drawn not on the basis of complaint filed by the District Magistrate but on the basis of the report of the inspection. In this regard, reference can be made to the case of C. Muniappan & Ors. Vs. State of Tamil Nadu reported in AIR 2010 SC 3718, in which it is held that:-

"(A) Criminal P.C. (2 of 1974), S. 195 - Penal Code (45 of 1860), S. 188 -

Contempt of lawful authority of public servant - Prosecution for - Complaint of concerned public servant - Essential - Court cannot assume cognizance without such complaint - Charge under S. 188 framed against appellant in absence of 4 M.Cr.C. No. 4031/2014 Komal Savita Vs. State of M.P. and another complaint by competent public servant - Charge so framed and conviction made liable to be set aside."

This view is also adopted by the decision rendered by the Punjab and Haryana High Court in the case of Jiwan Kumar Vs. State of Punjab & others reported in 2008 Cri.L.J. 3576, in which it is also held that:-

"(B) Criminal P.C. (2 of 1974), S. 195(1)(a) - Penal Code (45 of 1860), S. 188 - Proceedings under S. 188 -

Institution of, on the basis of FIR - And not on basis of any complaint in writing of public servant concerned - Not permissible

- FIR and proceedings are liable to be quashed."

For the reasons mentioned above, petition under Section 482 of Cr.P.C. is allowed and Crime No. 71/2013 dated 16.09.2013 registered at Police Station Morar for offence under Section 188 of IPC is quashed.

(S.K. Palo) Judge Abhi