Karnataka High Court
B. Ashok Shenoy vs The Station House Officer, Puttur, ... on 8 July, 1998
Equivalent citations: ILR1998KAR3001, 1998(5)KARLJ247
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER
1. Heard the learned Counsel for the petitioner and the learned State Public Prosecutor for the respondent.
2. The learned Counsel for the petitioner submitted that the Court had taken cognizance of the offence on the complaint filed by the Inspector of Police whereas the learned Magistrate who promulgated the order under Section 144, Criminal Procedure Code alone is competent to file the complaint as contained under Section 195(1) of the Code. Therefore, the cognizance taken by the learned Magistrate is contrary to the provisions of law and the same is liable to be set aside. The learned State Public Prosecutor also could not fully support the impugned order.
3. It is an undisputed fact that the Taluka Executive Magistrate of Puttur, had issued an order under Section 144, Criminal Procedure Code prohibiting the assembly, procession, etc., between 28-10-1991 and 30-10-1991. However, the complaint was filed by the Police Inspector before the J.M.F.C., Puttur alleging that during the subsistence of that order, this petitioner along with 165 persons took out procession, thereby violating the order passed by the Executive Magistrate. Thus the accused have committed offence punishable under Sections 155 and 188, Indian Penal Code. On the basis of this complaint, the Magistrate has taken cognizance and directed issue of process to all the accused persons. Under those circumstances, the only question that arises for consideration is as to whether cognizance taken by the Court on the basis of the complaint lodged by the police is valid or not.
4. It is a settled law that complaint must be by public servant himself and he cannot authorise any other person to do it. Complaint under Section 188 should be filed by the Magistrate whose order was disobeyed and not by the police. An order by Magistrate under Section 144 is an order issued by a public servant and he has to file a complaint if there is violation of the order which is punishable under Section 188, Indian Penal Code. It has now been made clear that subordinate means administratively subordinate i.e., some other public servant who is his official superior and under whose administrative control alone can file the complaint if the officer refuses to file the complaint. Section 195 is imperative. Cognizance of offence mentioned in it without proper complaint is an illegality and not curable under Section 465.
5. As stated above, the learned Taluka Executive Magistrate passed the order under Section 144, Criminal Procedure Code which is alleged to have been violated by the petitioner and other accused persons. The Circle Inspector of Police is not a superior officer under any circumstance and he has no administrative control over the Taluka Executive Magistrate. Therefore, the complaint filed by the Inspector of Police is incompetent and illegal. It is held in a decision reported in Chinna-muthu Ambalam v S. Jagannatha Chariar, that a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate is required. A prosecution under this section should not be launched unless all the elements necessary for a conviction are present. A complaint for an alleged disobedience of the order under Section 144, Criminal Procedure Code must show that the disobedience caused or tended to cause obstruction, annoyance or injury or a riot; out of all these requirements the most essential is that no prosecution can be instituted under this section without the personal complaint of the public servant concerned. From this it is abundantly clear that if there was a violation of the order passed under Section 144, Criminal Procedure Code it was the Magistrate or the Officer to whom he is subordinate should have filed a complaint. Needless to say that strict compliance in regard to Section 195 is warranted in a case of this nature as the offences coming under Sections 174 to 188 of Penal Code are governed by Section 195 of the Criminal Procedure Code. General rule is that any person having knowledge of the commission of an offence may set the criminal law in motion whether he is personally interested or affected or not. But these provisions enumerated in Section 195 are only exceptional to the general rule. The object of the Legislature is to give full protection to certain offences in regard to which the complaint can be lodged by the persons mentioned therein. As stated earlier, the Taluka Executive Magistrate is not subordinate to a Police Inspector on the administrative side. The Taluka Executive Magistrate is only subordinate to the District Magistrate. If the complaint was filed by the District Magistrate in the absence of the Taluka Executive Magistrate, that complaint would have been valid and legal.
6. In a similar case, this Hon'ble Court in a decision in H.N. Nanjegowda v State of Karnataka, has held that from the facts as disclosed from the report primarily and essentially the offence committed or complained of is one punishable under Section 186, Indian Penal Code and there was bar against the Magistrate taking cognizance of the offence except on the complaint of the Court or the public servant. The cognizance taken and the process issued on the police report made under Section 173, Criminal Procedure Code is illegal and without jurisdiction.
7. In Mata Bhikh and Others v State of Uttar Pradesh, the Allahabad High Court has held that in disobedience and violation of order under Section 145, the complaint must be filed by Magistrate passing the order or his superiors, for the offence punishable under Section 188, Indian Penal Code. For the foregoing reasons, it is abundantly clear that it is the Magistrate, who passed the order under Section 144 or officer to whom he is administratively subordinate only can file the complaint. Therefore the complaint filed by the Police Inspector is illegal and invalid and liable to be set aside.
8. It is a settled question of law that objection regarding locus standi to file complaint goes to the very jurisdiction of the case and should be raised before the Trial Court at the earliest opportunity and decided as a preliminary issue. In this case, the locus standi of the complainant i.e., the Police Inspector is questioned and if the complaint is filed by a person who has no authority to file the complaint as required under Section 195, Criminal Procedure Code then the Court cannot take cognizance of the offence. Though the case was pending from 1990, this preliminary objection was not raised by the accused persons. On the other hand, they approached this Court with this objection after about 8 years. In the normal course this Court would have directed the petitioners to approach the same Court to raise this contention. But as there is inordinate delay in the conclusion of the case and as could be seen from the order sheet, the case has not progressed further, by remanding the matter it would further delay the case causing prejudice to the accused persons. Further, even if it is remanded the ultimate result would be the same. Under those exceptional circumstances, I hold that the proceedings pending before the Court are liable to be quashed.
9. It is also made clear that normally the relief should have been given only to the petitioner who has approached this Court but the question raised in this petition goes to the very root of the case as the complaint filed by the Police Inspector is illegal and cognizance taken on the basis of such complaint is inoperative. Such being the case, it is just and proper that the entire proceedings will have to be quashed as long as such proceedings continue would result in abuse of process of Court.
10. In the result therefore, I proceed to pass the following:
ORDER The petition is allowed. The entire proceedings in C.C. No. 1933 of 1991 (Criminal No. 299 of 1991) on the file of the Additional Munsiff and J.M.F.C., Puttur, are hereby quashed. Consequently, all the accused persons are discharged.