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Showing contexts for: section 188 of indian penal code in Pappan Yadav @ Shatrughan Singh Yadav vs The State Of Madhya Pradesh Thr on 23 January, 2020Matching Fragments
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 (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 :-
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.
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.
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.