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Showing contexts for: section 188 of indian penal code in Bal Khande vs State Of M.P. on 16 December, 2015Matching Fragments
â 4. Before the writ Court it was argued on behalf of the respondent/petitioner that for taking cognizance under Section 188 of IPC a compliant has be made to the Court directly having jurisdiction in the matter in respect of offence committed under Section 188 of IPC and it was not for the police to register a case against the offenders for an offence under Section 188 of IPC and then to submit a report under Section 173 of the Cr.P.C., which is precisely the 5 submission made by the learned counsel for the appellants before us also. Reliance has been placed on a judgment delivered by a Division Bench of the 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 :-
5. In view of the aforesaid, the learned Single Judge has further observed as under :-
â12. The Division Bench of Punjab and Haryana High Court has held that in respect of Section 188 of I.P.C., taking into account the statutory provisions as contained u/s 195 of Code of Criminal Procedure a complaint has to be made in writing to the court by the Public Servant. The Division Bench has further held that it is not open for the Police to register a case against the offender u/s 188 of I.P.C. and then to submit a report u/s 173 of the Code of Criminal Procedure Code, 1973. Thus, keeping in view the judgment delivered by the Division Bench , this court is of the considered opinion 6 that action of the respondents in registering the FIR is certainly contrary to the statutory provisions as contained u/s 195 of the Code of Criminal Procedure, 1973 and the FIR has to pave the path of extinction.
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.
6. Applying the principles laid down by the Hon'ble Supreme Court and the provisions contained under Section 188 of IPC and Section 195 of Cr.P.C. as well as the judgment delivered by the Punjab and Haryana High Court in Jiwan Kumar's case (Supra) which has also been quoted in the impugned order, the learned Single Judge held that in this case there was a violation of the 9 statutory provisions contained under Section 195 Cr.P.C. in registering the FIR as Crime No.60/2011 for an offence under Section 188 of IPC dated 13.02.2011, the same was accordingly quashed.