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Showing contexts for: section 188 of indian penal code in Govardhankumar Thakoredas Asrani vs State Of Gujarat & on 13 April, 2017Matching Fragments
28. Section 195(1)(a)(i) Cr.PC bars the court from taking cognizance of any offence 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 Cr.PC 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 the Cr.PC 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. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai HC-NIC Page 32 of 41 Created On Fri Apr 14 01:03:33 IST 2017 Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; 2 K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).
34. Learned counsel for the appellants have submitted that no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, entire prosecution case falls.
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 HC-NIC Page 34 of 41 Created On Fri Apr 14 01:03:33 IST 2017 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.PC falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case.
49. It appears that in C. Muniappan (supra), two separate first information reports were registered. One for the offence punishable under sections 147, 148, 149, 436 and 302 of the Penal Code and under sections 3 and 4 of the Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992, and the another one for the offence punishable under section 188 of the IPC. As both the first information reports were clubbed, the same resulted in one consolidated charge-sheet. In such circumstances, it was argued that the court concernd could not have taken cognizance upon the charge-sheet filed by the Investigating Agency in view of the bar of section 195 of the Cr.P.C. On behalf of the State, it was submitted that the HC-NIC Page 35 of 41 Created On Fri Apr 14 01:03:33 IST 2017 framing of the charge under section 188 in the absence of a written complaint of the public servant could not be said to be fatal to the prosecution case. The entire prosecution case could not have been discarded merely on the grounds of improperly framing the charge under section 188 of the IPC. The clubbing of the two crimes, i.e., the two first information reports did not cause any prejudice to any of the accused. In such circumstances, the Supreme Court observed in para-36 that quashing of the charge under section 188 of the IPC, by no means, had any bearing on the case of the prosecution so far as the charges for the other offences were concerned.