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Showing contexts for: 188 ipc in Purnmasi Ram & Anr vs State Of Bihar & Anr on 1 November, 2017Matching Fragments
10. At this stage, it is pertinent to note that Section 195(1) of the Cr.P.C. bars the court from taking cognizance of the offence punishable under Section 188 IPC or abetment of criminal conspiracy to commit such offence, unless, there is a written complaint in writing by the public servant concerned or some other public servant to whom he is administratively sub-ordinate for contempt of his lawful order.
"28. Section 195(1)(a)(i) CrPC bars the court from taking cognizance of any offence Patna High Court Cr.Misc. No.9474 of 2017 dt.01-11-2017 punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 CrPC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in CrPC like Sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those sections."
(emphasis mine)
15. Thus, having seen the statutory provisions prescribed under Section 195(1)(a)(i) of the Cr.P.C. and the ratio laid down by the Hon‟ble Apex Court in the above-noted judgment, it can safely be held that no FIR can be registered by a police for an offence punishable under Section 188 of the IPC. The legislative intention appears to be clear from the language of Section Patna High Court Cr.Misc. No.9474 of 2017 dt.01-11-2017 195(1)(a)(i) of the Cr.P.C., which clearly prescribes that where an offence is committed under Section 188 IPC, it would be obligatory that the public servant before whom such an offence is committed, should file a complaint before the jurisdictional Magistrate either orally or in writing. It would not be within the domain of the police to register FIR under Section 188 of the IPC and investigate the same, as registration of an FIR for an offence under Section 188 IPC is not permitted by the Cr.P.C.
16. In Jiwan Kumar vs. State of Punjab & Ors.
[2008 Cr. L.J. 3576], a Division Bench of the Punjab and Haryana High Court has held that proceedings for offence under Section 188 IPC can be started on the basis of complaint filed by the public servant concerned and not on the basis of FIR culminating in filing of the charge-sheet.
17. So far as the other two points pleaded by the learned Senior Advocate appearing for the petitioners are concerned, they also carry force. From the allegations made in the FIR, it would be apparent that the alleged occurrence took place on 24.03.2014 whereas cognizance has been taken by the learned Magistrate vide order dated 09.07.2015.