Andhra HC (Pre-Telangana)
Kottu Satyanarayana vs The State Of A.P, Rep. By Its Public ... on 25 September, 2014
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO Criminal Petition No.10768 of 2014 25-09-2014 Kottu Satyanarayana.... Petitioner The State of A.P, Rep. by its Public Prosecutor,High Court at Hyderabad.. Respondent Counsel for Petitioner: Sri Dasika Murali Krishna Counsel for Respondent : Public Prosecutor for State <Gist: >Head Note: ? Cases referred: 1) AIR 1962 SC 1206 2) 2000(2) ALT (Crl.) 142 (AP) HONBLE SRI JUSTICE U. DURGA PRASAD RAO Criminal Petition No.10768 of 2014 ORDER:
In this petition, filed under Section 482 Cr.P.C., the petitioner/accused seeks quashing of proceedings in C.C.No.155 of 2014 on the file of I Additional Judicial First Class Magistrate, Tadepalligudem, West Godavari District.
2) The brief facts of the case are that LW1Mandal Development Officer, Tadepalligudem was deputed as Coordinator, Election Model Code of Conduct during General Elections held in 2014. LW2E.O.R.D. Pentapadu was deputed as Team leader, Flying Squad No.3 whereas LW3 Assistant Sub-Inspector and LW4Police Constable of Tadepalligudem Town Police Station were deputed as members of Flying Squad No.3 and L.W5videographer was deputed to assist LW2. While so, on 05.05.2014 at about 12 Noon when LWs.2 to 5 were moving in Tadepalligudem Town and when they reached bus stand road, they noticed the petitioner/accused who was contesting as independent candidate of Tadepalligudem Constituency, taking out a walkprocession with 300 members approximately without having any permission and thereby causing public nuisance in the town. The Flying Squad noticed that the accused and his members violated the Model Code of Conduct and orders promulgated by the election officers. On that LWs.2 to 5 gave a report to L.W1. He in turn gave a report to Station House Officer, Tadepalligudem Town Police Station for taking necessary action. The Sub-Inspector Town Police Station of Tadepalligudem registered a case in Cr.No.149/2014 under Section 188 IPC and investigated and filed charge sheet before the I Additional JFCM, Tadepalligudem who has taken cognizance and registered the case as C.C.No.155 /2014. Hence, the petition by the petitioner/accused.
3) Heard. 4) Besides denying the commission of offence as alleged, learned
counsel for petitioner argued that even assuming that charge sheet allegations were to be true, the police have no power to receive the report and investigate and file charge sheet in view of express bar provided under Section 195 of Cr.P.C. in respect of offence under Section 188 of IPC. Learned counsel vehemently argued that the Court can take cognizance only upon the complaint made by the concerned public servant and not otherwise. He thus submitted that continuation of proceedings before learned Magistrate will be nothing but abuse of process of law and prayed for quashing the said proceedings. He relied upon the following decisions.
1. Daulat Ram vs. State of Punjab
2. M.sudhakara Rao vs. State of Andhra Pradesh
5) Upon hearing the petitioner and perusing the relevant law, this Court agrees with the petitioner.
Sections 195 to 199 Cr.P.C. act as an exception to general rule that any person can set criminal law in motion. Sections 195 to 199 Cr.P.C. would disclose that in respective of certain offences, criminal law can be set into motion by certain qualified persons only. The present offence under Section 188 IPC is one such offence and the person who is entitled to set the criminal law in motion is detailed in Section 195 Cr.P.C. So, it is apt to peruse Section 188 IPC and Section 195 Cr.P.C. which are as follows:
Section 188 - Disobedience to order duly promulgated by public servant Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation. It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Section 195 - Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence:
(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, 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;
(b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause
(i) or sub-clause (ii),1[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate].
(2) Where a complaint has been made by a public servant under clause
(a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1 ), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
6) Thus, the non-obstante clause with which Section 195 Cr.P.C. begins, grafts an express bar on the courts to take cognizance of, among other offences, the offence under Section 188 IPC without following the procedure prescribed therein. Section 195 Cr.P.C. clarifies that a complaint has to be lodged by the concerned public servant before the Magistrate for taking cognizance of the offence under Section 188 IPC. This bar engrafted under Section 195 Cr.P.C. is not empty rhetoric but an insurmountable rule as can be seen from the observation of Honourable Apex Court made in respect of an offence under Section 182 IPC in the cited decision in Daulat Rams case (1 supra) as follows:
"(1) No Court shall take cognizance - (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;
The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court must be moved by the appropriate public servant. We have to decide therefore whether the Tahsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of s. 195. The words "no court shall taken cognizance" have been interpreted on more than one occasion and they show that there is an absolute bar against the court taking seisin of the case except the manner provided by the section.
Similar view was expressed by a learned single Judge of this High Court in respect of an offence under Section 174 IPC in M.Sudhakara Raos case (2 supra).
7) In the instant case, LW1 who is the public servant and who is empowered to set the criminal in motion did not lodge the complaint with jurisdictional Magistrate but filed report before the Station House Officer, Town Police Station, Tadepalligudem in violation of Section 195 Cr.P.C. Therefore, the investigation which culminated in charge sheet and consequent taking of cognizance by learned Magistrate are vitiated and hence liable to be quashed.
8) In the result, this Criminal Petition is allowed and while quashing proceedings in C.C.No.155/2014 on the file of I Additional JFCM, Tadepalligudem, West Godavari district, LW1Mandal Development Officer, Tadepalligudem is directed to lodge a suitable complaint before the concerned Magistrate within the period of limitation prescribed under Section 468 Cr.P.C and learned Magistrate shall deal with the complaint in accordance with law.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J Date: 25.09.2014