Madhya Pradesh High Court
Rajendra Garhwal vs The State Of Madhya Pradesh on 1 July, 2021
Equivalent citations: AIRONLINE 2021 MP 1873
Author: Rajendra Kumar Verma
Bench: Rajendra Kumar Verma
1
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
M.Cr.C. No. 49880 of 2019
Rajendra Garhwal
Vs
State of M.P.
Shri Arvind Shrivastav, learned counsel for the petitioner.
Shri S.Raghuwansi, learned Panel Lawyer for the
respondent/State.
ORDER
(01.07.2021) Petitioner has filed this miscellaneous criminal case under Section 482 of Cr.P.C. being aggrieved by order dated 16.10.2019 passed by 1st Additional Sessions Judge Betul in Criminal Revision No.30/2018 upholding the judgment dated 03.08.2018 passed by the J.M.F.C., Betul in Criminal Case No.2302314/2016. The petitioner prayed for quashing the proceeding pending before Judicial Magistrate First Class, Betul in Criminal Case No. 2302314/2016, whereby the learned Judicial Magistrate First Class took cognizance under Section 188 of I.P.C. against the petitioner.
2. Prosecution case in brief is that Police Station Betul filed a charge-sheet against the petitioner/accused for an offence under 2 Section 188 of IPC for committing breach of Section 144 of Cr.P.C. in the Court of Judicial Magistrate First Class Betul.
3. The petitioner challenges filing of the charge-sheet on the ground that offence under Section 188 of IPC is not cognizable one and only a complaint under Section 195 of Cr.P.C. can be filed and, therefore, the proceedings are not maintainable and liable to be quashed. The petitioner challenges the order of the JMFC in the Court of Ist Additional Sessions Judge Betul in Criminal Revision No.30/2018 who vide impugned order dismissed the Revision on the ground that the petitioner/accused raised objection belatedly and not within 90 days from the date of taking cognizance. Learned Revisional Court has observed that there is no provision to discharge the accused once the memorandum of charge is read over and, therefore, there is no illegality in the order passed by the JMFC.
4. Learned counsel for the petitioner/accused submits that the orders impugned are totally illegal and liable to be quashed. The Courts below have failed to exercise their jurisdiction. It is further submitted that the learned Courts below have ignored the basic principle of law and it ought to have been considered by the Courts below while passing the impugned orders. It is also submitted that when the law does not permit taking of cognizance of the offence by the Court on filing of charge sheet, the same cannot be allowed to stand merely because cognizance was not challenged immediately. Learned counsel for the petitioner further submitted that the law is well settled that when the law prescribed anything to be done in a particular manner than it has to be done in that manner only. 3 Therefore, the Courts below have not only ignored the legal provisions but also the legal opinion given by the public prosecutor and, therefore, the orders impugned being illegal deserves to be quashed.
5. Learned Panel Lawyer appearing for the State has vehemently opposed the submissions made by learned counsel for the petitioner/accused and submits that there is no perversity or illegality in the impugned orders and, therefore, this petition under Section 482 of Cr.P.C. is liable to be dismissed.
6. Heard both the parties and perused the record.
7. Before proceeding further, it would be appropriate to mention Section 188 of IPC which read as under:-
"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.
Illustration- An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section"
8. Further before proceeding further, it would 4 be appropriate to mention Section 195 of Cr.P.C which read as under:-
"195. Prosecution for contempt of lawful authority of public servants, for offence against public justice and for offence relating to document 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, 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;
(b)(i) of any offence punishable under any of the following sections 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), 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 sub- section (1) any authority to which he is administratively subordinate may order 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 the 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 in situate:
Provided that-5
(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."
9. It is clear that in the present case, proceeding is initiated on the basis of FIR and charge sheet was filed under Section 173 of Cr.P.C. It is evident in the aforesaid section that no Court shall take cognizance under Sections 172(2),188 of the Indian Penal Code. The complaint is to be made by the public servant to any authority to which he is administratively sub ordinate. So it is clear that no complaint has been made to the Chief Judicial Magistrate and Magistrate did not take cognizance upon the complaint presented by Competent Officer in the present case. Learned Magistrate to took cognizance upon the charge sheet, which is filed by Police Station Betul, therefore it is mandate of law. No Court shall take cognizance on the basis of charge sheet under Section 188 of Cr.P.C. In this context this Court Ashok Agrawal Vs. State of M.P. reported in ILR (2015) M.P. 3130 has held as under:-
"I have gone through the judgment of Hon'ble Division delivered in the case of Jyotiraditya Sindhiya (supra), wherein it was held that the offence cannot be registered by police in view of the provisions of section 195 of Cr.P.C. under Section 188 of IPC. The Division Bench also relied upon the principles laid down by the Appellate Court delivered in the case of C.Muniappan and others Vs. State of Tamil Nadu reported in (2010) 9 SCC 567 and held that without complaint as defined by section 2(d) of Cr.P.C., cognizance cannot be taken under Section 188 of IPC. Applying ratio of the case of Jyotiraditya Sindhiya (supra), I find that cognizance could not be taken by the Magistrate on the basis of FIR registered by police in Crime No. 124/2011. The defects cannot be cured merely by a letter by the District Magistrate addressed to the Chief Judicial Magistrate. In such situation, I find that this application filed under Section 482 of Cr.P.C. deserves to be allowed and the impugned 6 order passed by the learned Revisional Court and the Judicial Magistrate are liable to be set aside."
10. In the case of Gautam Kalloo (Dr.) and another Vs. State of M.P. reported in 2010(2) MPLJ 609 has held as under:-
"7. This apart, by virtue of the provisions of Section 195(1)
(a)(i) of the Code, cognizance of the offence in question can be taken only on the complaint and writing of the Secretary of the Election Commission of India or of some other public servant to whom he is administratively subordinate."
11. The Madras High Court In the case of Jeevanandham and others Vs. State of Rep. By Inspector of Police in Crl. O.P. No. 1356/2018 has held as under:-
"25. In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:
(a) A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.
(b) A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.
(c) The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.
(d) In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely;
(i) that there must be an order promulgated by the public servant;
(ii) that such public servant is lawfully empowered to promulgate it;
(iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; and
(iv) that such disobedience causes or tends to cause;
(a) obstruction,annoyance or risk of it to any person lawfully employed; or
(b) danger to human life, health or safety; or 7
(c) a riot or affray.
(d) The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.
(e) The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.
(f) No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. An FIR or a Final Report will not become void ab initio insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C.
(g) The Director General of Police, Chennai and Inspector General of the various Zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195(1)(a)(i) of Cr.P.C.
This Court will now proceed to deal with the independent cases"
12. In view of the forgoing discussion, it is evident that no Court can take cognizance under Section 188 of Cr.P.C. on the basis of charge sheet filed by the Police. Learned Trial Magistrate took cognizance on the basis of charge sheet filed by the police Station Betul. Therefore cognizance was without compliance of statutory provision of 195 of Cr.P.C. Therefore, orders of learned Courts below are hereby set aside and the proceeding pending before Judicial Magistrate First Class Betul in Criminal Case No.2302314/2016 against the petitioners-accused, is hereby quashed.
13. Accordingly, this petition is hereby allowed.
(Rajendra Kumar (Verma)) Judge SJ SUSHEEL KUMAR JHARIYA 2021.07.03 10:48:43 +05'30'