Allahabad High Court
Ajay Rai vs State Of U.P. And Another on 3 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:155752 HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 10806 of 2025 A.F.R. Reserved on : 5.8.2025 Delivered on :3.9.2025 Ajay Rai .....Applicant(s) Versus State of U.P. and Another .....Opposite Party(s) Counsel for Applicant(s) :
Praveen Kumar Singh, Syed Imran Ibrahim Counsel for Opposite Party(s) :
G.A. Court No. - 82 HON'BLE SAMEER JAIN, J. 1. Heard Sri Praveen Kumar Singh, learned counsel for the applicant and Sri Manish Goyal, learned AAG assisted by Sri Rupak Chaubey, learned AGA for the State-respondent. 2. The instant application u/s 528 BNSS has been filed by the applicant with a prayer to quash the summoning order dated 9.9.2019 and the charge sheet dated 7.11.2017 as well as the entire proceedings of case No. 2436 of 2019 (State Vs. Surendra Patel and others) arising out of case crime No. 193 of 2017 u/s 188 IPC, Police Station Kotwali, District Varanasi, pending in the court of Additional Civil Judge (JD)-V/J.M., Varanasi. Brief facts of the case:- 3. FIR of the present case was lodged on 20.9.2017 for offence punishable under section 188 IPC against the applicant and ten others and 500 unknown persons and according to the FIR on 20.9.2017 at about 11:50 am applicant and other accused were agitating against the government and they in spite of the restrictions laid the procession and therefore, they violated the provisions of section 144 Cr.P.C. and thus committed offence under section 188 IPC. 4. After registration of the FIR investigation was commenced and after investigation charge sheet has been filed against the applicant and others on 7.11.2017 under section 188 IPC and after submission of charge sheet court concerned took the cognizance on 9.9.2019 and issued summons. 5. Hence, the instant application. Argument advanced on behalf of the applicant:- 6. Learned counsel for the applicant submitted that only due to political vendetta, applicant has been roped in the present case alongwith others on the basis of false allegations. 7. He further submitted, applicants and others carried out a peaceful procession and merely by doing so it can not be said that they committed offence under section 188 IPC. 8. He further submitted that mere violation of section 144 Cr.P.C does not attract the provisions of section 188 IPC and for offence punishable under section 188 IPC it is also necessary that the alleged disobedience committed by an accused must cause or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed. 9. He further submitted that from the evidence collected by the Investigating Officer during investigation, it could not be reflected that either applicant or any other accused caused or tended to cause any obstruction or injury to any person lawfully employed but inspite of that charge sheet under section 188 IPC has been filed against the applicant and court concerned also took the cognizance and issued summons on 9.9.2019. 10. He further submitted that even as per section 195(1)(a)(i) Cr.P.C., no court shall take cognizance for an offence punishable under section 178 to 188 (both inclusive) of the IPC except on the complaint in writing made by a public servant concerned and therefore, cognizance and summoning order dated 9.9.2019 is illegal as in the present matter admittedly court concerned took the cognizance for offence under section 188 IPC on the police report submitted u/s 173(2) Cr.P.C. 11. He further submitted that therefore, considering the facts and circumstances of the case argued above, cognizance and summoning order dated 9.9.2019 as well as charge sheet filed against the applicant dated 7.11.2017 and entire proceeding pending against the applicant are bad and are liable to be quashed. Argument advanced on behalf of the State:- 12. Per contra, learned Additional Advocate General submitted that no doubt by virtue of section 195(1)(a)(i) Cr.P.C. no Court can take cognizance on a police report submitted under section 173(2) Cr.P.C. for offence under section 188 IPC and Court can take cognizance for offence under section 188 IPC only on written complaint made by public servant concerned and therefore, cognizance and summonig order dated 9.9.2019 appears to be illegal but he further submitted that the charge sheet filed against the applicant and others on 7.11.2017 cannot be said to be illegal and therefore, same should not be quashed. 13. He further submitted that offence under section 188 IPC is cognizable offence and therefore, neither lodgement of the FIR nor investigation with regard to the offence under section 188 IPC is barred and therefore, if after registration of the FIR under section 188 IPC, investigation has been conducted then it cannot be said that entire investigation is bad including charge sheet. 14. He further submitted that investigation of a case and taking cognizance are two entirely different matters and even if cognizance is barred then also it cannot be said that investigation was also barred. 15. He further submitted that in the present matter, however, considering the provisions of Section 195 (1)(a)(i) Cr.P.C. charge sheet should not be forwarded to the court concerned and instead of forwarding the charge sheet to the court public servant concerned should file written complaint on the basis of investigation conducted by the Investigating Officer but merely due to this reason chargesheet cannot be said to be bad. 16. He further submitted that if charge sheet of the present case prepared by the Investigating Officer after the investigation is quashed then entire material collected by Investigating Officer during investigation will also be automatically quashed and thereafter, there will be no material before the public servant concerned to file written complaint against the applicant as required under section 195(1)(a)(i) Cr.P.C. 17. He further submitted that however charge sheet of the present case can be quashed if from the material collected during investigation no offence under section 188 IPC is made out against the applicant but from the FIR and statements of the witnesses recorded during investigation including the statement of the informant it is apparent that applicant and others, in spite of request made by police officers, continued to make agitation against the government and laid the procession and therefore, violated the provisions of section 144 Cr.P.C. and it cannot be said that their disobedience did not cause any annoyance or obstruction to public servant and therefore, from this angle too charge sheet cannot be quashed. He placed reliance on the judgement of Apex Court passed in case of State of Maharashtra and another Vs. Sayyed Hassan Sayyed Subhan and others (2019) 18 SCC 145. 18. He further submitted that therefore, considering the provisions of section 195 (1)(a)(i) Cr.P.C. this Court, however, may quash the cognizance and summoning order dated 9.9.2019 but charge sheet filed against the applicant should not be quashed and if State wants then on the basis of investigation conducted by the Investigating Officer public servant can file written complaint against the applicant and court concerned can took cognizance, in accordance with law. Analysis:- 19. I have heard learned counsel for both the parties and perused the record of the case. 20. From perusal of the record it reflects that charge sheet has been filed against the applicant for offence under section 188 IPC and thereafter court concerned took the cognizance and issued summons on 9.9.2019 on the police report submitted under section 173(2) Cr.P.C. therefore, it is apparent that cognizance has been taken by the court concerned on the police report and not on the written complaint filed by the public servant. 21. As per section 195(1)(a)(i) Cr.P.C., no court shall take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the IPC except on the complaint in writing made by the public servant concerned or of some other public servant to whom he is administratively subordinate, therefore, from perusal of the statutory provisions of law, it is crystal clear that a Court can not take cognizance for an offence under section 188 IPC on the police report submitted under section 173(2) Cr.P.C. therefore, cognizance and summoning order dated 9.9.2019 and proceedings pending against applicant before the court concerned are bad in the eyes of law. 22. Further, however, as offence punishable under section 188 IPC is cognizable offence and therefore, it cannot be held that investigation of the case was bad. Further investigation of the case and taking cognizance are two different matters and even if cognizance is barred then also it cannot be said that investigation was also barred and therefore, it cannot be said that as on the charge sheet cognizance can not taken, therefore, charge sheet is also bad. 23. This Court finds merit in the submission advanced by learned AAG that if charge sheet of the present case has been quashed then entire material collected by investigating officer will also be quashed and therefore, no material will be available before the public servant to file complaint as required under section 195(1)(a)(i) Cr.P.C., therefore, from this angle too charge sheet of the present case cannot be quashed on the ground that cognizance was barred. 24. Now, it is to analyze whether charge sheet filed against applicant can be quashed on the ground that from the material collected by investigating officer during investigation no offence under section 188 IPC is made out. To analyze the same it will apposite to go through section 188 IPC which runs 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 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. 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." 25. From perusal of section 188 IPC it reflects following are its essential ingredients:- (i) Knowledge of the order promulgated by a public servant directing the accused to abstain from certain act; (ii) Disobedience of such order by the accused in such manner it causes or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed and (iii) If such disobedience causes or tends to cause danger to human life, health or safety or cause or tends to cause a riot or affray. 26. Therefore, from the essential ingredients of section 188 IPC it reflects, mere disobedience of the order promulgated by a public servant is not sufficient to attract the provisions of Section 188 IPC and for an offence under section 188 IPC it is necessary that the offender must cause or tend to cause obstruction annoyance or injury or risk of obstruction annoyance or injury to any person lawfully employed or such disobedience causes or tends to cause danger to human life, health or safety or cause or tend to cause riot or affray and it is also necessary that the offender must had the knowledge of restriction order promulgated by a public servant. 27. In case at hand, it is not the case of applicant that he was not having knowledge of the restriction order passed by public servant under section 144 Cr.P.C., therefore, first ingredient of section 188 IPC has been fulfilled. 28. Further, as far as ingredient Nos. 2 and 3 of section 188 IPC are concerned, from the record, it reflects applicant and others carried out a peaceful procession and from the entire evidence available on record collected during investigation by the Investigating Officer it could not be reflected that by disobeying the restrictive order promulgated under section 144 Cr.P.C. applicant caused or tended to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed and it also could not be reflected that such disobedience caused or tended to cause danger to human life, health or safety or caused or tends to cause riot or affray, therefore, prima facie, it reflects, essential ingredient Nos. 2 and 3 of Section 188 IPC are not fulfilled and therefore, offence punishable under section 188 IPC is not made out against applicant.
29. Further, however, learned AAG placed reliance on the judgement of the Apex Court passed in case of Sayyed Hassan (supra) but facts of that case were distinguishable from the facts of present case. In that case prohibitory order was passed by Commissioner Food and Safety and therefore, Apex Court after considering the third ingredient of Section 188 IPC held that disobedience of such order attracts the provision of Section 188 IPC. 30. Therefore, considering the facts of the present case it is apparent that on the basis of evidence collected by the Investigating Officer, no offence punishable under section 188 IPC is made out against the applicant and though charge sheet of the present case cannot be quashed on the ground that cognizance was barred by virtue of section 195(1)(a)(i) Cr.P.C. but on this ground charge sheet can very well be quashed. Law is settled, if evidence collected during investigation does not disclose alleged offence then charge sheet can be quashed (See: State of Haryana and others Vs. Bhajan Lal and others 1992 Supp (1) SCC 335). 31. Therefore, from the discussion made above, in my view, cognizance and summoning order dated 9.9.2019 as well as charge sheet filed against the applicant and proceeding pending against the applicant are bad and are liable to be quashed. 32. Accordingly, the cognizance and summoning order dated 9.9.2019, chargesheet filed against the applicant and proceeding pending against him are, hereby, quashed. 33. The instant application u/s 528 BNSS stands allowed.
(Sameer Jain,J.) September 3, 2025 Ankita