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Showing contexts for: section 188 of indian penal code in Rahul Awasthi vs State Of Haryana And Another on 11 May, 2023Matching Fragments
3. However, a civil defence team inspected the premises of the company on 08.04.2020 and found 80 workmen of the company working in the premises. Mattress arranged for their stay were lying near each other and bio-metric machines were being used for recording the attendance of the company staff. Based on these facts, a complaint was made by Naib Tehsildar before the S.H.O. Badshahpur, Police Station resulting into registration of the FIR in question, naming both the petitioners and one Amit Chaudhary as accused. On 10.04.2020, an order was passed by the District Magistrate-cum-District Authority so as to effectively implement the lock down. After completing the investigation of the case, police submitted final report dated 11.07.2020 under Section 173 Cr.P.C. to prosecute both the petitioners under Sections 188, 269/34 IPC. As the order dated 08.04.2020 of Additional Labour Commissioner, Gurugram was produced during the investigation, so Section 51 of the NDM Act was deleted. Involvement of Mr. Amit Chaudhary, who had produced the letter regarding appointment of Factory Manager, was also not found. Based on the final report dated 11.07.2020 filed by the police, Page no.2 out of 16 pages 2 of 16 Neutral Citation No:=2023:PHHC:070275 CRM-M-3324-2022 Neutral Citation No. 2023:PHHC:070275 CRM-M-30832-2022 the District Magistrate-cum-District Authority filed complaint bearing No.CHI-1792/2020 (Annexure P-3) seeking prosecution of both the petitioners under Section 188 IPC read with Section 51 of the NDM Act. Learned Judicial Magistrate 1st Class, Gurugram, vide order dated 29.07.2020 (Annexure P-5) took cognizance of the offences and adjourned the matter for consideration on charge.
Page no.3 out of 16 pages 3 of 16 Neutral Citation No:=2023:PHHC:070275 CRM-M-3324-2022 Neutral Citation No. 2023:PHHC:070275 CRM-M-30832-2022
(iii) It is further contended that cognizance of offence under Section 188 IPC and that of Section 51 of NDM Act is contrary to the provisions of Section 195(1)(a) Cr.P.C. and 60 of NDM Act respectively. It is pointed out that though the complaint by the District Magistrate was filed on the basis of police report, but learned Judicial Magistrate 1st Class, Gurugram did not take cognizance of the complaint of the District Magistrate and rather, took cognizance of the challan submitted by the police. It is urged that provisions of Section 195 Cr.P.C. are mandatory and non-compliance thereof would vitiate the prosecution and the consequent proceedings. The FIR cannot be registered for the offence under Section 188 IPC.
14. Thus, Court can take cognizance of an offence punishable under Section 188 IPC only on the complaint either made by the public servant concerned or of some other public servant to whom he is administratively subordinate.
15. The contention of learned counsel for both the petitioners to the effect that FIR itself could not have been lodged for commission of an offence under Section 188 IPC, has no merit. Offence under Section 188 IPC is a cognizable offence and so, police has the power to lodge an FIR for committing the offence under Section 188 IPC, though it is another matter that cognizance by the Court, as per Section 195 Cr.P.C., can be Page no.9 out of 16 pages 9 of 16 Neutral Citation No:=2023:PHHC:070275 CRM-M-3324-2022 Neutral Citation No. 2023:PHHC:070275 CRM-M-30832-2022 taken only on the basis of complaint to be made by the concerned public servant.
(3) FIR can be lodged and offences can be investigated by the Police but cognizance only of the complaint is to be taken by the Court.
17. On the same analogy, the offence under Section 188 IPC being cognizable, so it is held that FIR for commission of said offence can be lodged by the police, though taking cognizance of an offence punishable under the said Section 188 IPC is barred by the Court except on the complaint in writing made by the concerned public servant. A report under Section 173 Cr.P.C. along with the complaint of the concerned public servant can, thus, be filed in the Court and based thereon, cognizance can be taken by the Court on the complaint that has been filed, in accordance with Section 195 Cr.P.C.