Madhya Pradesh High Court
Gopal Singh Chauhan @ Daggi Raja vs The State Of Madhya Pradesh on 3 December, 2014
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
SB HON'BLE MR JUSTICE S.K. PALO
Misc. Criminal Case. No.10015/2014
Gopal Singh Chouhan and others
Vs.
State of Madhya Pradesh
Shri Shailendra Dwivedi, Advocate for the petitioners.
Shri Ajay Singh Raghuvanshi, P.L. for respondent.
JUDGEMENT
(03/12/2014) This petition under Section 482 of Cr. P.C has been filed for invoking inherent jurisdiction of this Court to quash the order dated 29.9.2014 passed by JMFC, Chanderi in Criminal Case No. 474/2014.
2. Briefly stated the facts necessary for deciding the petition are as follows:
The Assistant Returning Officer, Chanderi District Ashok Nagar wrote a letter directing the SHO Chanderi to initiate legal action against petitioner No.1, Gopal Singh Chouhan (Duggi Raja) for contravening the Election Conduct Rules and for violation of Section 144 of Cr.P.C and to report the matter to the Office of Assistant Returning Officer, State Assembly,Chanderi District Ashok Nagar. On this direction, Police Station Chanderi lodged Crime No. 409/2013 under Section 188 read with 34 of IPC against the petitioners.
3. Accused persons / petitioners were arrested. They were released on bail by the Court of JMFC, Chanderi.
4. On 29.9.2014 the petitioners filed the application before the JMFC Chanderi, stating that if there is any (2) M.Cr.C No. 10015/14 violation the District Election Officer, ought to have filed the complaint himself or any officer subordinate to him. But, the present complaint has not been filed by the District Election Officer. It has been instituted at the instance of Police Station Chanderi. Hence, the Court has no jurisdiction to take cognizance. Therefore, the petitioners be discharged.
5. The learned JMFC, Chanderi vide order dated 29.9.2014 disallowed the application, stating that on 26.12.2013, the case has been registered. At this stage, the Court is not inclined to revert to the initial stage.
6. On behalf of the petitioners, it is argued that the procedure laid down under Section 195 of Cr.P.C prescribed filing of complaint under Section 172 to 188 of IPC. The prescribed procedures not followed in this case. Under Section 188 of IPC the compliant has to be filed by the competent authority. Only on the basis of which cognizance can be taken, otherwise not. The cognizance taken by the JMFC on the basis of charge sheet filed by the P.S. Chanderi is erroneous when the procedure laid down has not been followed. Therefore, the present petition for quashing the proceedings of Cr. Case No. 474/2014 pending before the JMFC District Ashok Nagar.
7. On behalf of the petitioners it is also argued that the offence under Sections 188 will be cognizable only when the complaint is filed before the JMFC by the competent authority, failing which the Court has no (3) M.Cr.C No. 10015/14 authority to take cognizance.
8. Per contra, the learned counsel for the State submitted that in the matter cognizance has already been taken by the JMFC and no error persists in the order impugned. Hence, the petition filed by the petitioners is liable to be dismissed.
9. Having heard the arguments advanced by the learned counsel for the respective parties and the entire material available on the record has been perused.
10. It is not disputed that Section 188 of IPC is a non cognizable offence. The Code of Criminal Procedure provides procedure for such offence.
Section 195 of Cr.P.C reads as follows:-
S. 195 (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, 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.
11. Admittedly, in the present case, neither the complaint has been filed by the public servant concerned competent authority before the Magistrate, nor it has been filed by any authorized officer on his behalf. Hence, in view of the mandatory provisions contained under Section 195 of Cr.P.C cognizance of (4) M.Cr.C No. 10015/14 offence under Section 188 could not have been taken by the police. The investigation into non-cognizable led by the police without order of Magistrate concerned is in contravention with the procedure prescribed nor any permission has been obtained to investigate of non-cognizable offence under Section 155 of Cr.P.C
12. In this context the above view is fortified in the case of Narayan Singh Boudh Vs. State of M.P, reported in 2014 (III) MPWN 31, in which it is held that, "Penal Code, 1860 - Ss. 171B, 171E and 188 - Criminal P.C, 1973
- Ss 155 and 195 - Offence under Section 171E, IPC is non-
cognizable - police officer cannot investigate non-cognizable case without the order of Magistrate -
hence, Criminal proceedings against petitioner under sections 171B and 188, IPC quashed.
13. Therefore, proceedings under section 188 of IPC against the petitioners in Cr. Case No. 474/2014 pending before the learned JMFC, Chanderi is quashed. The learned Court below is directed to close the proceedings pending against the petitioners forthwith.
A copy of this order be sent to the JMFC Chanderi for compliance.
(S.K. Palo) JUDGE dcs