Himachal Pradesh High Court
Ram Lal Thakur vs The State Of Himachal Pradesh & Others on 4 March, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No.863 of 2022
Decided on: 04.03.2023
Ram Lal Thakur ...Petitioner.
Versus
The State of Himachal Pradesh & others ... Respondents.
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes
_____________________________________________________
For the petitioner: Mr. Ajay Kumar Sharma, Advocate.
For the respondents: M/s Baldev Negi and Pushpinder Jaswal,
Additional Advocates General, for
respondents.
Ajay Mohan Goel, Judge (Oral)
By way of this Revision Petition, filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing of FIR No.239 of 2018, dated 26.10.2018, registered under Sections 143 & 188 of the Indian Penal Code (hereinafter to be referred as "IPC"), at Police Station Sadar, Tehsil and District Shimla, H.P. A prayer has also been made to quash and set aside the subsequent proceedings resulting out of the lodging of the said FIR.
2. The case of the petitioner is that at the time when the petition was filed, he was a member of the legislative assembly of the State of Himachal Pradesh from the Shree Naina Devi Jee, Assembly Constituency, district Bilaspur. FIR No.239 of 2018, dated ::: Downloaded on - 07/03/2023 20:32:30 :::CIS 2 .
26.10.2018 came to be registered against the petitioner and six other accused at Police Station Sadar, District Shimla, H.P. at the instance of one Hem Chand, ASI/ I.O. Police Station Sadar, District Mandi, H.P., copy whereof is appended with this petition as Annexure P1. It was alleged in the FIR that on the said date, ASI Hem Chand alongwith his other colleagues was recruited to perform law and order duty at Rajeev Bhawan, Cart Road, Shimla, where they saw about 250300 Congress workers led by the Congress Committee leaders. The leaders and workers after crossing the AG Chowk, proceeded towards Police Assistance Room from C.T.O., Mall Road by formulating an unlawful assembly. They raised slogans against the State Government as also Central Government etc. in public place. They formed an unlawful assembly at Mall Road, Shimla, which amounted to violation of provisions of Sections 143 and 188 of IPC. Rukka was sent through Constable Jitender Kumar.
Investigation was carried out in the matter by ASI Naseeb Singh of Police Station Sadar, District Shimla, H.P. Statements of witnesses were recorded under Section 161 of Criminal Procedure Code (hereinafter to be referred as "Cr.P.C.") and after preparation of spot map and post recording of the statements of witnesses, the FIR in issue was lodged against the petitioner and other accused. The petitioner and other accused were formally arrested on 13.11.2018 and released thereafter. After completion of investigation, challan ::: Downloaded on - 07/03/2023 20:32:30 :::CIS 3 .
was presented in the Court of learned Chief Judicial Magistrate, Shimla, on 28.11.2020 and it is at said stage that the present petition has been filed seeking quashing of the FIR.
3. Learned counsel for the petitioner has argued that the FIR which has been lodged against the petitioner and other accused is per se not maintainable in the eyes of law as the same has been lodged in violation of the statutory and salutary provisions contained in Section 195 of Cr.P.C.
4. By placing reliance upon Section 195 of Cr.P.C., learned counsel for the petitioner has argued that cognizance of an offence punishable under Section 188 of IPC cannot be taken except in terms of the procedure prescribed in Section 195 of Cr.P.C., but in the present case cognizance has been taken on the basis of the FIR and this vitiates the entire process. Learned counsel has argued that as Section 143 of IPC is there on account of same alleged incident, on the basis of which the petitioner and other accused have been booked under Section 188 of IPC, therefore also the FIR per se is liable to be quashed and aside.
5. Learned Additional Advocate General has submitted that the FIR was lodged on the facts as they stand narrated in the same and as the matter is now pending before learned Trial Trial Court, therefore, the appropriate course available to the petitioner is to raise all these issues before learned Trial Court.
::: Downloaded on - 07/03/2023 20:32:30 :::CIS 4.
6. I have heard learned counsel for the parties and carefully gone through the petition as well as documents appended therewith.
7. The facts which led to the lodging of the FIR have already been narrated by me hereinabove and the same are not being repeated for the sake of brevity. Suffice it to say that the FIR has been lodged against the petitioner and other accused, who though are not parties before this Court, under under Sections 143 and 188 of IPC.
8. Section 195 of Cr.P.C. deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
9. Subsection (1) of Section 195 of Cr.P.C. inter alia provides that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of IPC etc. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
10. Hon'ble Supreme Court in C. Muniappan and others Versus State of Tamil Nadu and connected matters, (2010) 9 Supreme Court Cases 567, has been pleased to hold that Section 195 (a) (i) of Cr.P.C. bars the Court from taking cognizance of any offence ::: Downloaded on - 07/03/2023 20:32:30 :::CIS 5 .
punishable under Section 188 of IPC for abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. Hon'ble Supreme Court further held that 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 and the Court lacks competence to take cognizance in certain types of offences enumerated therein. Hon'ble Supreme Court further held that the legislative intent behind such a provision has been that an individual should not not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, illwill or frivolity or disposition and to save the time of the criminal Courts being wasted by endless prosecutions.
Hon'ble Court further held that this provision has been carved out as an exception to the general rules contained under Section 190 of 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.
11. A perusal of the FIR in issue, i.e. appended with the petition as Annexure P1, demonstrates that the same has been lodged at the behest of Hem Chand Thakur, who after getting the alleged facts, on the basis of which the FIR was lodged recorded by ::: Downloaded on - 07/03/2023 20:32:30 :::CIS 6 .
way of a rukka through Constable Jitender, called for investigation in the matter.
12. Section 188 of IPC, inter alia, provides that 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 persons 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 tends 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.
13. Section 195 of Cr.P.C. talks of no Court taking cognizance of offences, inter alia, punishable under Section 188 of IPC, except on the complaint in writing of the public servant "concerned".
14. It is not in dispute that the FIR was not lodged on the basis of the complaint filed by public servant who had promulgated ::: Downloaded on - 07/03/2023 20:32:30 :::CIS 7 .
the order allegedly violated by the petitioner and the other co accused.
15. In this view of the matter, this Court has no hesitation in holding that lodging of the FIR in fact was in violation of the provisions of Section 195 of Cr.P.C.
16. Incidently, even earlier Hon'ble Supreme Court in Daulat Ram Versus State of Punjab, AIR 1962 Supreme Court 1206, while interpreting the provisions of Section 195 of Cr.P.C., has been pleased to hold that this Section contemplates the complaint to be in writing by public servant "concerned".
17. In State of U.P. Versus Suresh Chandra Shrivastava, AIR 1984 Supreme Court 1108, Hon'ble Supreme Court has been pleased to hold as under: "The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences from an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of S. 195 of the Code."
18. This Court is of the considered view that the law is in fact well settled by Hon'ble Apex Court that where an accused commits some offences which are separate and distinct from those contained in Section 195 of Cr.P.C., then Section 195 of the Cr.P.C.
::: Downloaded on - 07/03/2023 20:32:30 :::CIS 8.
will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction in which case the other offences also would fall within the ambit of Section 195 of the Cr.P.C.
19. In the present case, the offences which have been alleged to have been committed by the petitioner besides Section 188 of Cr.P.C. which is contained in Section 195 of Cr.P.C. are alleged to have committed in the same transaction and these offences form an integral part of the main transaction and even as per the prosecution, the offences committed were part of the same transaction that is the lodging of the FIR by the petitioner on the basis of a concocted and a created story.
20. That being the case, this Court is of the considered view that as the provision of Section 195 of Cr.P.C. was not followed while charging the petitioner for commission of offence punishable under Section 188 of IPC alongwith other offences, the proceedings so initiated against the petitioner are per se bad and liable to be quashed and set aside in terms of the law laid down by Hon'ble Apex Court.
21. This petition, accordingly, succeeds and as prayed for by the petitioner, the prosecution of the petitioner as also the ensuing criminal proceedings, arising out of FIR No.239 of 2018, dated 26.10.2018, registered under Sections 143 and 188 of IPC, at ::: Downloaded on - 07/03/2023 20:32:30 :::CIS 9 .
Police Station Sadar, Tehsil and District Shimla, H.P., are ordered to be quashed and set aside, as these proceedings were not initiated in terms of the provisions of Section 195 of Cr.P.C.
22. The petition stands disposed of, so also the pending miscellaneous applications, if any.
(Ajay Mohan Goel) Judge March 04, 2023 (Rishi) ::: Downloaded on - 07/03/2023 20:32:30 :::CIS