Madhya Pradesh High Court
Pappan Yadav @ Shatrughan Singh Yadav vs The State Of Madhya Pradesh Thr on 23 January, 2020
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
THE HIGH COURT OF MADHYA PRADESH
1
M.Cr.C. No. 872/2018
(PAPPAN YADAV @ SHATRUGHAN SINGH & OTHERS VS THE STATE OF M.P.)
Gwalior, Dated :23/01/2020
Shri Anand Kumar Jaiswal, learned counsel for the
petitioners.
Shri Sanjeev Mishra, learned Public Prosecutor for the
respondent-State.
1. Heard finally with the consent of both the parties.
2. In this petition under Section 482 of the Cr.P.C petitioners have assailed the order dated 05/12/2017 passed by Judicial Magistrate First Class- Gwalior (M.P.) in case No. 3427/2016 whereby application filed under Section 332 of the Cr.P.C has been rejected on the ground that cognizance has been taken against the petitioners for offence under Section 188 of the IPC and charges have already been framed and therefore in such situation the Trial Court has no power to review its order.
3. Learned counsel for the petitioners submits that the Trial Court has not considered the provision of Section 195(1)(a)(i) of the Cr.P.C wherein there is specific bar against taking cognizance under Section 188 of the IPC by the Trial Court without cognizance by public servant. It is submitted that the THE HIGH COURT OF MADHYA PRADESH 2 M.Cr.C. No. 872/2018 (PAPPAN YADAV @ SHATRUGHAN SINGH & OTHERS VS THE STATE OF M.P.) Police has registered the FIR under Section 154 of the Cr.P.C for offence punishable under Section 188 of the IPC upon which learned Trial Court has taken cognizance and framed the charges and thereafter the matter is pending for recording the evidence. Learned counsel for the petitioner submits that vide order dated 05/12/2017 learned Judicial Magistrate First Class has considered the charge-sheet and has over-ruled the objection raised by the petitioners to the effect that without filing complaint cognizance could not have been taken by the Magistrate under Section 195 of the Cr.P.C and that Police was not authorized to register the case against the petitioners for offence under Sections 188 of the IPC and then submit the report under Section 173 of the Cr.P.C. Reliance has been placed on the judgment of the Division Bench of 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 THE HIGH COURT OF MADHYA PRADESH 3 M.Cr.C. No. 872/2018 (PAPPAN YADAV @ SHATRUGHAN SINGH & OTHERS VS THE STATE OF M.P.) 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."
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 :-
"28. 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 THE HIGH COURT OF MADHYA PRADESH 4 M.Cr.C. No. 872/2018 (PAPPAN YADAV @ SHATRUGHAN SINGH & OTHERS VS THE STATE OF M.P.) 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 THE HIGH COURT OF MADHYA PRADESH 5 M.Cr.C. No. 872/2018 (PAPPAN YADAV @ SHATRUGHAN SINGH & OTHERS VS THE STATE OF M.P.) 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 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 THE HIGH COURT OF MADHYA PRADESH 6 M.Cr.C. No. 872/2018 (PAPPAN YADAV @ SHATRUGHAN SINGH & OTHERS VS THE STATE OF M.P.) would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned."
4. On the other hand, learned Public Prosecutor opposed the application and submitted that the Trial Court has rightly rejected the application filed by the petitioner vide impugned order dated dated 05/12/2017 passed in Criminal Case No. 3427/2016 as such no interference is called for and deserves to be dismissed.
5. I have gone through the judgment of Hon'ble Division Bench 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 have been taken by the Magistrate on the basis of FIR registered by police in Crime no.
THE HIGH COURT OF MADHYA PRADESH 7 M.Cr.C. No. 872/2018 (PAPPAN YADAV @ SHATRUGHAN SINGH & OTHERS VS THE STATE OF M.P.) 237/2015. In such a situation, I find that this application filed under section 482 of Cr.P.C deserves to be allowed and the impugned order passed by the learned Judicial Magistrate are liable to be set aside.
6. Accordingly, this application is allowed. The impugned order passed by the learned Judicial Magistrate in Criminal Case no. 3427/2016 dated 05/12/2017 are set aside. The FIR arising out of Crime no. 237/2015 registered by police station - Purani Chhaoni District Gwalior (M.P.) under section 188 of IPC is quashed and also the proceedings before the learned Judicial Magistrate in Criminal Case no. 3427/2015 are quashed. The present applicants are discharged from the charge under section 188 of IPC.
7. With the aforesaid observations and the directions, present application stands allowed. No order as to cost.
C c as per rules.
(S.A.Dharmadhikari) JUDGE Prachi Digitally signed by PRACHI MISHRA PRACHI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, MISHRA st=Madhya Pradesh, 2.5.4.20=cc727abda3453804cde48b1 afcb367afdaf978aea111b1ff29eae55f d213bc09, cn=PRACHI MISHRA Date: 2020.01.25 11:52:59 +05'30'