Andhra Pradesh High Court - Amravati
T.Arthar, vs The State Of Andhra Pradesh, on 28 September, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATI
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION No.7809 OF 2022
Between:-
T.Arthar .... Petitioner/A.3
And
1) The State of Andhra Pradesh,
represented by its Public Prosecutor,
High Court of Andhra Pradesh,
Amaravathi.
2) V.Rajashekar Reddy .... Respondents
Counsel for the Petitioner : Mr.Kochiri Raja Shekar
Counsel for the 1st Respondent : Learned Assistant Public Prosecutor
Counsel for the 2nd Respondent : --
ORDER:
This petition is filed under Section 482 of Cr.P.C, seeking to quash the proceedings against the petitioner, who is Accused No.3 in C.C.No.628 of 2020 on the file of the Learned Special Mobile Court, Kurnool, Kurnool District, registered for the offences punishable under Section 188 of IPC and Section 32 of Police Act, 1861. 2
2. The Station House Officer, Brahmanakotkur Police Station basing on the Special Report dated 28.03.2019 registered a Crime against the petitioner/Accused No.3 and the other accused on the ground that on that day, at about 12.30 hours, the petitioner/Accused No.3 along with other accused have held a Road Show and canvassed with 25 vehicles in Alluru Village, Nandikotkur Mandal, without taking prior permission from the concerned officials, while Section 30 of the Police Act is in force in the District and they also violated Model Code of Conduct.
3. Heard learned counsel for the petitioner and the learned Assistant Public Prosecutor appearing for the 1st respondent-State.
4. The learned counsel for petitioner submits that in similar circumstances, this Court by an order dated 02.11.2018 passed in Crl.P.No.9488 of 2011 (Smt.Kavitha vs. State of Telangana) and Velagapudi Babu Rao vs. State of A.P., [2012 (3) ALT (Crl.) 231] quashed the proceedings against the accused therein.
5. The learned counsel for the petitioner, inter alia, submits that in the instant case, the Crime is registered against the petitioner on the complaint lodged by the 2nd respondent directly to the Police, no complaint is lodged to the concerned Magistrate in terms of Section 195(1) Cr.P.C, and the same is therefore liable to be quashed. 3 Referring to Section 188 of IPC and Section 195(1) of Cr.P.C., the learned counsel would urge that no Court shall take cognizance of offences punishable under Sections 172 to 188 of IPC, except on the complaint in writing of the Public Servant concerned or some other Public Servant to whom he is administratively subordinate.
6. In Velagapudi Babu Rao, it was held that to attract the offence under Section 188 of IPC, a complaint has to be filed by the concerned Public Servant and that the Sub Inspector of Police could not be said to be a Public Servant within the meaning of Section 195(1) of the Criminal Procedure Code. In Criminal Petition No.9488 of 2011, this Court following the decisions in Velagapudi Babu Rao, and the decision of the Hon‟ble Supreme Court in Megha Singh vs. State of Haryana [(1996) 11 SCC 709] quashed the proceedings against the petitioner holding that the Police Officer being the complainant, should not have proceeded with the investigation. However, the said decisions are not directly applicable to the facts of the present case.
7. In W.P.No.30733 of 2015 dated 21.09.2015, a Learned Judge of this Court after referring to relevant provisions of Law viz., Section 188 of IPC and Section 195(1) of Cr.P.C, inter alia, at Para No.7 held as follows:-
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"It is very much evident from the provisions of Section 195(1)(a) of the Code of Criminal Procedure that the Court shall not take cognizance of any offence punishable under Sections 172 and 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 administratively subordinate"
8. Section 188 of IPC and Section 195(1)(a) of Cr.P.C, which are relevant in the present context, may be extracted for ready reference:
Section 188 of Indian Penal Code:
"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 obstructions, 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 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 5 produce, hard. 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 disobey the order, and thereby causes danger of riot. A has committed the offence defined in this section."
Section 195(1)(a) of the Code of Criminal Procedure, reads as follows:-
"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, 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."
9. As seen from the material on record, no complaint in writing appears to have been made by the 2nd respondent to the concerned Magistrate, as required under Section 195(1)(a) of Cr.P.C. Therefore, the proceedings initiated against the petitioner are not sustainable in Law.
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10. Dealing with the above provisions of Law, the Hon‟ble Supreme Court in C.Muniappan & Ors., vs. State of Tamil Nadu1 held as follows:
"19. What logically follows from the above discussion is that if a „complaint‟, as envisaged in Section 195(1)(a), is not received by a Magistrate in respect of an offence under Section 188 IPC the Magistrate cannot, on the basis of a „police report‟ submitted under Section 173 (2), take cognizance, for, the „police report‟ in the light of what has been discussed above, cannot be treated as the „complaint‟, in writing, of the „public servant concerned‟.
20. We have, now, in our hands, a situation, where the police has been given the power to arrest a person without warrant if he is alleged to have committed an offence under Section 188 IPC, investigate the case, make seizure, if necessary, and submit „police report‟. We have, on the other hand, Section 195(1) of the Code, which debars every Court from taking cognizance of such an offence unless a complaint, in writing, is received by the Magistrate from the „public servant concerned‟ or his successor-in-office or of some other public servant to whom he is administratively subordinate. Though, granted by law, the power to arrest and submit report, the facts remains that when such arrest or investigation cannot lead to prosecution of a person, who is found to be an offender, it would be an abuse of the powers given to the police if they arrest a person for commission of an offence under Section 188 IPC. The abuse of the process of Law is not necessarily confined to situations where an action is taken without law, but also when an action is taken under the law, though while taking such action, it is known to the law enforcement machinery that no fruitful purpose would be served. .......1
(2010) 9 SCC 567 7
23. In view of the above discussion and the settled law, I am of the considered opinion that the Trial Court has no power to take cognizance under Section 188 of the IPC as the same is barred by Section 195 of the Cr.P.C. Consequently, the order dated 07.02.2014 passed by learned Magistrate and order dated 16.09.2014 passed by learned Additional Sessions Judge are hereby quashed."
11. In the light of the above legal position, and applying the guidelines enunciated in State of Haryana vs. Bhajan Lal2, this Court is of the considered view that the proceedings against the petitioner are not sustainable.
12. Accordingly, the Criminal Petition is allowed. The proceedings against the petitioner/Accused No.3 in C.C.No.628 of 2020 on the file of the Learned Special Mobile Court, Kurnool, Kurnool District are quashed.
As a sequel, miscellaneous applications if any, pending shall stand closed.
_______________________ JUSTICE NINALA JAYASURYA Date: 28.09.2022 IS 2 1992 SUPP (1) SCC 335 8 THE HON'BLE SRI JUSTICE NINALA JAYASURYA CRIMINAL PETITION No.7809 OF 2022 Date: 28.09.2022 IS