Madhya Pradesh High Court
Bal Khande vs State Of M.P. on 16 December, 2015
MCRC-525-2013
(BAL KHANDE Vs STATE OF M.P.)
16-12-2015
Shri Ankur Mody, counsel for the petitioners.
Shri BPS Chouhan, Public Prosecutor, for respondent/State.
The petitioners, before this Court, have filed the present petition under Section 482 of the Code of Criminal Procedure for quashment of the order dated 02.01.2013 passed by the Second Additional Sessions Judge, Shivpuri in Criminal Revision No.101/2011 by which the order dated dated 24.06.2011 passed by the JMFC, Shivpuri whereby the charges have been framed against the petitioners under Section 133 of the Representation of Peoples Act, 1951 and under Sections 171F of the IPC has been confirmed. The contention of the learned counsel for the petitioners is that no FIR was lodged by the public servant as provided under Section 195 of the Code of Criminal Procedure and therefore the proceedings initiated on the basis of the FIR lodged on 30.04.2009 deserves to be quashed. He has straightway drawn attention of this Court towards the judgment of the Division Bench of this Court rendered by it in the matter of State of Madhya Pradesh and another Vs. Jyotiraditya Scindia reported in 2014(1) JLJ 326 and his contention is that in similar situation the Division Bench has upheld the order passed by the Single Judge by which the criminal proceedings were quashed. Heard learned counsel for the rival parties at length and perused the record. In the present case, it is an undisputed fact that the FIR was not lodged by the public servant as required under Section 195 of the Code of Criminal Procedure. It was registered by the police. Paragraphs 10 to 17 of the aforesaid judgment passed in Jyotiraditya Scindia (Supra) read as under:
â 4. Before the writ Court it was argued on behalf of the respondent/petitioner that for taking cognizance under Section 188 of IPC a compliant has be made to the Court directly having jurisdiction in the matter in respect of offence committed under Section 188 of IPC and it was not for the police to register a case against the offenders for an offence under Section 188 of IPC and then to submit a report under Section 173 of the Cr.P.C., which is precisely the 5 submission made by the learned counsel for the appellants before us also. Reliance has been placed on a judgment delivered by a Division Bench of the High Court of Punjab and Haryana in the case of Jiwan Kumar Vs. State of Punjab and Others decided on 18-03-2008 reported in 2008 CriLJ 3576, (2008)2 PLR 675, Paragraphs -10 and 11 are reproduced as under :-
10. It is admitted case of respondent No. 3 that FIR No. 128 (P3) was registered against the petitioner on 16.6.2005 under Section 188 IPC. The petitioner was thereafter arrested and interrogated. After the completion of the investigation, the challan (final report under Section 173 of the Code) was presented against the petitioner before learned Chief Judicial Magistrate, Mansa on 20.12.2005 and the charge was framed on 20.1.2006. Further that the case is now fixed for recording of prosecution evidence.
11. It is, thus, clear that the proceedings against the petitioner under Section 188 IPC have been initiated on the basis of the FIR and not on the basis of any complaint in writing of the public servant concerned as is required by Section 195(1)(a) of the Code. The registration of FIR and the launching of proceedings thereafter against the petitioner is not permitted by the Code and thus, cannot be allowed to be sustained. Resultantly, the petition is allowed. Promulgation order dated 27.5.2005 (P-2) issued by the District Magistrate, Mansa is quashed. Similarly, FIR No. 128, dated 16.6.2005 registered at Police Station City Mansa under Section 1-88 IPC (P-3) and all the proceedings taken thereunder against the petitioner are also quashed and set aside.â
5. In view of the aforesaid, the learned Single Judge has further observed as under :-
â12. The Division Bench of Punjab and Haryana High Court has held that in respect of Section 188 of I.P.C., taking into account the statutory provisions as contained u/s 195 of Code of Criminal Procedure a complaint has to be made in writing to the court by the Public Servant. The Division Bench has further held that it is not open for the Police to register a case against the offender u/s 188 of I.P.C. and then to submit a report u/s 173 of the Code of Criminal Procedure Code, 1973. Thus, keeping in view the judgment delivered by the Division Bench , this court is of the considered opinion 6 that action of the respondents in registering the FIR is certainly contrary to the statutory provisions as contained u/s 195 of the Code of Criminal Procedure, 1973 and the FIR has to pave the path of extinction.
15. The Apex court in the case of C. Muniappan and others Vs. State of Tamilnadu reported in (2010) 9 SCC 567 in paragraphs 28, 29, 33, 35 and 36 held as under :-
â28. Section 195(a)(i) Cr. P.C. bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face 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 prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr. P.C. that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr. P.C. like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1.97.1 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh and Ors. v. Balbir Singh, (1996) 3 SCC 533 : (AIR 1996 SC 1592 : 1996 AIR SCW 1850); State of Punjab v. Raj Singh and Anr., (1998) 2 SCC 391 : (AIR 1998 SC 768 : 1998 AIR SCW 483); K. Vengadachalam v. K.C. Palanisamy and Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr., AIR 2005 SC 2119) : (2005 AIR SCW 1929)
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 and Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik and 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.
33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr. P.C. are mandatory. Noncompliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void abinitio being without jurisdiction.
35. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC. However, we do not agree with the further submission 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.
36. There is ample evidence on record to show that there was a prohibitory order; which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial 8 even by the accused persons that there was no 'Rasta Roko Andolan'. Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, we hold that in case the charges under Section 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned.â
16. The Apex court in the aforesaid case was dealing with an issue wherein two FIRs are clubbed together, one was in respect of a murder for which an offence u/s 302 of the Indian Penal Code was registered against the accused person and one was in respect of an offence u/s 188 of the Indian Penal Code. The common charge sheet was issued clubbing both the FIRs and the Apex court on the ground that there was evasion or non- compliance on the part of the state in respect of section 195 has held the entire trial in respect of offence falling u/s 188 of the Indian Penal Code to be void ab-initio, meaning thereby without jurisdiction.
17. Resultantly, in the present case as there is no compliant as required u/s 195 of the Code of Criminal Procedure, keeping in view the judgment delivered by the apex court and also keeping in view the judgment delivered by the division Bench of Punjab and Haryana High Court in the case of Jiwan Kumar Vs. State of Punjab and others (supra), this court is of the considered opinion that the statutory provisions as contained u/s 195 of the Code of Criminal Procedure, 1973 have not been followed and, therefore, the FIR registered by the Police at Crime No. 60/2011 for an offence under section 188 of the Indian Penal Code dated 13-02-2011, is accordingly quashed. No order as to costs.â
6. Applying the principles laid down by the Hon'ble Supreme Court and the provisions contained under Section 188 of IPC and Section 195 of Cr.P.C. as well as the judgment delivered by the Punjab and Haryana High Court in Jiwan Kumar's case (Supra) which has also been quoted in the impugned order, the learned Single Judge held that in this case there was a violation of the 9 statutory provisions contained under Section 195 Cr.P.C. in registering the FIR as Crime No.60/2011 for an offence under Section 188 of IPC dated 13.02.2011, the same was accordingly quashed.
7. Having gone through the provisions of the law quoted and the judgment of the Apex Court as also the judgment of Punjab and Haryana High Court and in the absence of any written submissions despite opportunity granted, we dismiss the appeal. C.C.as per rules.
In the light of the aforesaid judgment, this Court is of the considered opinion that the statutory provisions as contained under Section 195 of the Code of Criminal Procedure have not been followed and therefore, the FIR registered by the police at Crime No.251/2009 for the offence punishable under Sections 188 of IPC is accordingly quashed and resultantly all criminal proceedings arising out of the said FIR also stand quashed.
Petition stands allowed accordingly.
(S.C.SHARMA) JUDGE