Madhya Pradesh High Court
Amit vs The State Of Madhya Pradesh on 20 January, 2017
1 M.Cr.C. No.10352/2016 20/01/2017
:-
Shri Ashish Sharma, learned counsel for the applicants. Shri Mukesh Kumawat, learned Panel Lawyer for the non- applicant/State.
Heard finally with the consent of the parties. The applicants have preferred this petition under Section 482 Cr.P.C. for quashing the FIR registered against them at police station-MIG, Indore at crime No.322/2015 under Section 188, 147, 149, 341 of IPC and further proceedings of criminal case No.43107/2015 initiated on this FIR.
2. It is submitted that the applicants are Social Workers, Students, Student Leaders and Members of a registered Student Organization namely "National Student Union of India". They called in for a protest march and effigy burning against the Chief Minister at L.I.G. Square, Indore. The police lodged an FIR against them alleging that the alleged Act was in violation of order No.816/R.A.D.M./15 dated 16/03/2015 issued by the District Magistrate, Indore and that they have not taken permission for the event from the District Magistrate. The police filed charge-sheet and on the basis of this charge- sheet, aforesaid criminal case is registered against them.
3. It is argued that due to bar created by Section 195 of Cr.P.C., the police could not have directly register FIR and Magistrate also could not have taken cognizance for the offence punishable under Section 188 IPC until and unless a complaint is filed by the concerned public servant. It is further submitted that on the facts also no case is made out against them. Therefore, they pleaded for quashing of FIR and the 2 M.Cr.C. No.10352/2016 criminal case registered against them on the basis of that FIR.
4. The prosecution has opposed the petition.
5. I have gone through the FIR and other documents filed with the charge-sheet, copies of which are annexed with the petition.
6. The District Magistrate imposed a ban on any call of protest march/rally etc. without prior permission of the DM from 17/03/2015 to 14/05/2015 vide order No.816/R.A.D.M./15 dated 16/03/2015. the applicants called a protest march against the Chief Minister and burning of effigy of CM at LIG Square, Indore on 07/05/2015 i.e. during the period of ban. They with some other persons assembled at the spot and shouted slogans. They did not pay any heed to the advise of the Police Officers present there to maintain law and order. In spite of intense efforts of the police to stop them, they burned the effigy on the Square, which caused obstruction, annoyance and inconvenience to the person lawfully employed and also to the public at large. They also disrupted peace and harmony of the area. ASI, who was present on the spot and tried to maintain the law and order, filed FIR under Section 147, 341, 188 of IPC. The Police registered crime No.322/2015 and thereafter filed the charge- sheet after investigation.
7. Section 195 (1) of Cr.P.C. reads as under:
195. Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence 3 M.Cr.C. No.10352/2016 (1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 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;
(2) ......
8. Thus, bare reading of the Section takes us to an incontrovertible conclusion that the cognizance for contempt of lawful authority of public servant punishable u/s 188 IPC can only be taken on the complaint in writing of the public servant whose lawful order has not been complied with or of some other public servant to whom he is administratively subordinate. The Court cannot assume the cognizance of the case without such complaint. Non-compliance of it vitiates the prosecution and all other consequential proceedings. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.
9. It is argued that the present FIR is also filed by an ASI who undoubtedly is a public servant.
10. This is an intransigent argument. "Public servant" does not means any public servant in its generic connotation. Only "public servant" words are not used in the section, instead words used are "public servant concerned", This clearly speaks 4 M.Cr.C. No.10352/2016 about intention of the legislative. Considering the language of the section, there is no doubt or hesitation in holding that "public servant" for the purpose of Section 188 of the IPC means the "public servant" whose authority has been challenged or whose order has been disobeyed.
11. It is not in dispute that in the case in hand, the Collector, whose order has not been complied with did not file any complaint. The prosecution is initiated on the instigation of an ASI, who has filed the FIR. It is, thus, clear that the proceedings against the petitioners under Section 188 IPC have been initiated on the basis of the F. I. R. of an ASI and not on the basis of any complaint in writing of the public servant concerned, as is required by Section 195 (l) (a) of the Code. The registration of FIR and the launching of proceedings thereafter against the petitioners is not permitted by the Code and thus, cannot be allowed to be sustained. Undoubtedly, in the present case, the mandatory provisions of Section 195 Cr. P.C. are not complied with. In such an eventuality and taking into account the settled legal principles in this regard, I am of the view that it was not permissible for the trial Court to frame charge under Section 188 IPC.
12. However, I am not agree with the contention of the learned counsel for the petitioner that absence of a complaint under Section 195 Cr. P.C. falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case. Apart from the charge under section 188 of IPC, the present case is also registered under other Sections of the Penal Code and prima facie there is ample evidence on record to frame 5 M.Cr.C. No.10352/2016 the charges under section 147 & 341 IPC. In such an eventuality, it is held that the charges under Section 188 IPC are liable to be quashed, but it would by no means have any bearing on the case of the prosecution, so far as it relates to the charges for other offences.
13. Further submission of the learned counsel that the police could not have directly register FIR and such registration is abuse of process of the law is also not tenable as the offence u/s 188 IPC is cognizable offence and for such offences, the police does not require any previous permission/sanction from any authority to set the investigation in motion.
14. In the result, the petition deserves to be allowed to the extent, it relates to the charge under Section 188 IPC and allowed accordingly. The FIR and other proceedings taken there under so far as it relate to the charge under Section 188 of the Penal Code against the petitioners are quashed hereby.
15. With the aforesaid, the petition stands disposed off.
No order as to the cost.
(Virender Singh) Judge Aiyer*