Karnataka High Court
Sri. Himanshu Kumar vs The State Of Karnataka on 11 July, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 6234 OF 2025
BETWEEN:
1. SRI. HIMANSHU KUMAR,
S/O SUNIL KUMAR,
AGED ABOUT 36 YEARS,
RESIDING AT FLAT NO.726,
NYAY KHAN-01,
INDIRAPURAM,
PATRAKAR VIHAR SOCIETY,
SHIPRA SUN CITY, GHAZIABAD,
UTTAR PRADESH - 110 093.
2. SRI. AMAN YADAV,
S/O RAJPAL SINGH,
AGED ABOUT 34 YEARS,
RESIDING AT J.A.D FLAT,
GANDHINAGAR,
Digitally signed JAIPUR CITY (SOUTH),
by
SHARADAVANI RAJASTHAN - 302 001.
B
Location: High 3. SRI. ARVIND KUMAR,
Court of
Karnataka S/O BABU RAM,
AGED ABOUT 41 YEARS,
RESIDING AT V. PATEPUR, PO,
DEVABAND, SAHARANPUR,
ALLAHABAD,
UTTAR PRADESH - 211 001.
4. SRI. SATHYAM PANDEY,
S/O ASHOK KUMAR,
AGED ABOUT 35 YEARS,
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RESIDING AT DARANGANZ,
ALLAHABAD,
UTTAR PRADESH - 211 001.
...PETITIONERS
(BY SRI. ARUNA SHYAM, SENIOR COUNSEL FOR
SRI. ROHITH R KUMAR., ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY ASHOKNAGARA
POLICE STATION,
BANGALORE.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI.CHANNAPPA ERAPPA, HCGP)
THIS CRL.P. IS FILED U/S 482 OF CR.P.C (U/S 528 BNSS)
PRAYING TO ALLOW THIS CRL.P AND QUASH THE ENTIRE
PROCEEDINGS IN CC.NO.50876/2020, ON THE FILE OF
LEARNED XXIX ACMM, MAYO HALL UNIT, BENGALURU, IN
CC.NO.50876/2020 INCLUDING THE ORDER DATED 21.01.2020
OF TAKING COGNIZANCE, DISCHARGE ORDER DATED
08.02.2024, FIR, COMPLAINT AND CHARGE SHEET IN
CR.NO.413/2019 REGISTERED BY RESPONDENT ASHOKNAGAR
POLICE, FOR THE OFFENCES P/U/S 186, 160 OF IPC,
PRODUCED AT DOCUMENT NO.1, 2, 3, 4, 5.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this Petition, Petitioners seek the following reliefs:
“i. Call for records; Allow this Criminal Petition and
quash the entire proceedings in CC.No.50876/2020
on the file of learned XXIX Addl. C.M.M. Mayohall
Unit, Bengaluru in C.C.No.50876/2020 including the
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order dated: 21-01-2020 of taking cognizance,
discharge order dated 08-02-2024, FIR, Complaint
and Charge sheet in Crime No.413/2019 registered
by Respondent Ashoknagar Police for the offences
alleged under section 186 and 160 of IPC, in the
interest of justice and equity. (produced at
DOCUMENT No.1, 2, 3, 4 and 5).
ii. Grant such other or further relief deems fit to
grant in the circumstances of the case with cost and
expenses in the interest of justice.”
2. Heard the learned Sr. Counsel for the Petitioners,
learned HCGP for Respondent and perused the material on
record.
3. A perusal of the material on record will indicate that
on 01.12.2019, suo moto FIR was registered against the
Petitioners for the alleged offences p/u/s 186 and 160 of IPC.
In pursuance of the same, investigation was conducted and
culminated in the impugned charge sheet which is pending in
CC No.50876/2020. In this context, it is relevant to state that
in the light of provisions contained in Section 195(1A) of the
CR.P.C., it was incumbent upon the Respondent – police to
register FIR only pursuant to complaint (private complaint)
under Section 2(D) of Cr.P.C., failing which, the impugned FIR
would be illegal, arbitrary and without jurisdiction or authority
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of law as held by the Apex Court in the case of B N JOHN v.
STATE OF U.P. AND ANOTHER, reported in 2025 SCC
OnLine SC 7, it has been observed as follows:
“Leave granted.
2. The present appeal has been preferred being aggrieved
by the judgment dated 22.09.2023 passed by the High
Court of Judicature at Allahabad under Section 482 of the
Code of Criminal Procedure, 1973 (‘CrPC‘ for short) in
Application No. 35311 of 2023 by which the appellant’s
plea for quashing of the chargesheet No.162 of 2015
dated 20.06.2015, order dated 11.08.2015 taking
cognizance and issuing summons, and the entire
proceedings in Case No. 9790 of 2015 arising out of Case
Crime No. 290 of 2015 under Sections 353 and 186 of the
Indian Date: 2025.01.02 16:15:09 IST Reason: Penal
Code, 1860 (‘IPC‘ for short), P.S. Cantt. District Varanasi,
U.P., was rejected.
FACTUAL BACKGROUND
3. It is the plea of the appellant that he is the owner of
the premises and was in charge of managing &
maintaining the hostel, which was being operated by a
Non-Governmental Organization, named Sampoorna
Development India. This hostel at the relevant time was
used for underprivileged children by providing facilities for
their accommodation, education and other needs.
3.1 According to the appellant, because of certain
personal disputes with one K.V. Abraham, the latter
instituted six false cases against him, four of them
resulted in his acquittal, while in the other two discharge
applications are pending. According to the appellant, it
was at the instance of the said Abraham that the officials
conducted a raid in the said hostel arbitrarily without
authorization and also without providing any prior notice,
alleging that provisions of the Juvenile Justice (Care and
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Protection of Children) Act, 2015 (‘JJ Act‘ for short) as
applicable then, were not followed in running and
managing the said hostel.
3.2 It is the allegation of the appellant that the officials
illegally conducted the raid on 03.06.2015 and sought to
transfer the children accommodated in the said hostel to
some other location purportedly on the ground that the
hostel was being run without proper authorization from
the competent authority under the JJ Act.
3.3. It was further contended that a false allegation was
made against the appellant that he, along with his party,
had attacked and assaulted the officials while they were
conducting the raid in connection with which an FIR came
to be lodged against the appellant and his wife, which
was registered as FIR No. 290 of 2015 dated 03.06.2015
at the PS Cantt.
District, Varanasi under Section 353 of the IPC.
3.4. On the basis of the said FIR, the appellant was
arrested on 08.06.2015. However, he was granted bail on
the same day. Subsequently, on completion of the
investigation, charge-sheet was filed before the Court of
Chief Judicial Magistrate, Varanasi in connection with the
said FIR on 20.06.2015 alleging commission of offences
under Sections 353 and 186 of the IPC.
3.5. Pursuant to the filing of the chargesheet, the Chief
Judicial Magistrate, Varanasi took cognizance and issued
summons to the appellant vide order dated 11.08.2015,
against which the appellant submitted an application for
recalling the said order, which is pending before the Court
of CJM, Varanasi.
3.6. According to the appellant, a complaint alleging
commission of an offence under Section 186 of the IPC
would be maintainable only if it is preceded by a
complaint filed by a public servant as mentioned under
Section 195 (1)(a) of the CrPC before the
court/Magistrate, but there was no such prior complaint
filed by any public servant before the Magistrate.
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Further, though the FIR was filed under Section 353 of
the IPC, there were no ingredients to make out a case
under the said section. It is also the case of the appellant
that the authorities had maliciously invoked the penal
provision of Section 353 of the IPC in the FIR merely to
make out a cognizable offence against the appellant to
enable the Magistrate to take cognizance, even though
there was no case of any assault or use of criminal force
by the appellant to deter any public servant from
discharging his duty. Hence, taking cognizance of the said
FIR by the CJM, Varanasi under Section 353 of the IPC
was unwarranted and illegal. 3.7 Accordingly, the
appellant approached the Allahabad High Court invoking
jurisdiction under Section 482 of the CrPC seeking
quashing of the aforesaid proceedings, that is, Crime
Case No. 290 of 2015 pending before the CJM, Varanasi
and orders taking cognizance and issuing summons in
that regard.
3.8 The Allahabad High Court on perusal of the FIR
No.290/15 and the statement of witnesses recorded
under Section 161 of the CrPC held that a prima facie
case has been made out against the appellant for being
summoned and for prosecution under the aforesaid
Sections 353 and 186 of the IPC and declined his plea for
quashing the aforesaid criminal case which was pending
before the CJM, Varanasi.
3.9 While dismissing the petition filed by the appellant,
the Allahabad High Court referred to an earlier decision of
the High Court in rejecting the application filed by the co-
accused seeking quashing of the aforesaid proceedings
under Section 482 of the CrPC which was affirmed by this
Court on 13.04.2017 by dismissing the SLP in limine.
In the present impugned order, the High Court observed
that the allegations against the present appellant and co-
accused are same as well as the evidence collected
against them and since the plea of quashing the charge
sheet and cognizance taken against the said co-accused
had already been rejected on merits by the High Court,
which was not disturbed by this Court, no interference
was warranted for quashing the proceedings under
Section 482 of the CrPC, filed by the present appellant
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and dismissed the petition. Accordingly, the appellant is
before us.
SUBMISSION OF THE APPELLANT
4. It is the specific plea of the appellant that cognizance
in respect of an offence under Section 186 of the IPC can
be taken by the court only after a complaint is made in
writing by the public servant to the court as provided
under Section 195 (1) of the Cr.P.C. It has been
submitted that in the present case no such written
complaint was filed by any public official as also
ascertained by him from the concerned authority through
an application filed to the competent authority under the
Right to Information Act, 2005, whereby he was informed
that no written complaint was filed before the court by
any public servant in connection with Case No. 9790 of
2015 (State Vs B.N. John and Anr.).
4.1 Further, for invoking the provision of Section 353 of
the IPC there must be a clear allegation of assault or
criminal force by the accused for preventing the public
servant from discharging his duty. However, a careful
reading of the FIR would indicate that no such allegation
was made against the appellant of using criminal force or
assault and accordingly, even if the allegations made in
the FIR are taken at their face value, it does not disclose
the commission of any cognizable offence as
contemplated under Section 353 of the IPC.
4.2 Accordingly, it has been submitted that taking
cognizance by the CJM, Varanasi, of the aforesaid case
under the stated facts and circumstances is quite illegal
and perverse in law, as such, the same ought to have
been quashed by the Allahabad High Court. It was
contended that the Allahabad High Court, however, had
misdirected itself by observing that a prima facie case is
made out on the basis of the contents of the FIR and the
statement of the witnesses recorded under Section 161
CrPC.
4.3 It has also been contended that the Allahabad High
Court in the present case ought not to have taken into
consideration the order passed in respect of the other co-
accused, as the legal issues as highlighted in this appeal,
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were not considered by the Allahabad High Court while
rejecting the plea of the co-accused for quashing the
complaint. As such, the said decision cannot be used
against the present appellant.
PLEA OF THE RESPONDENT
5. Per contra, it has been submitted on behalf of the
State that the decision rendered by the Allahabad High
Court is in consonance with the law and no grievance can
be made as the High Court had applied the relevant law
to the facts of the present case.
Further, it has also been submitted that this Court must
be very slow in interfering with a reasoned order passed
by the High Court, and the impugned order cannot be
said to be perverse, illegal, or without any jurisdiction. It
was contended that merely because a different view could
have been taken by the High Court, it does not render the
decision of the High Court illegal, warranting interference
from this Court, and the High Court passed the order
after going through the records.
ANALYSIS
6. We have heard learned counsel for the parties and
perused the record.
7. As far as quashing of criminal cases is concerned, it is
now more or less well settled as regards to the principles
to be applied by the court. In this regard, one may refer
to the decision of this Court in State of Haryana Vs. Ch.
Bhajan Lal and Ors., 1992 Supp. (1) SCC 335 wherein
this Court has summarized some of the principles under
which FIR/complaints/criminal cases could be quashed in
the following words:
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of
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cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list
of myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused. (2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under
Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
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and continuance of the proceedings and/or where there is
a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to
private and personal grudge.” (emphasis added)
8. Of the aforesaid criteria, clauses no. (1), (4) and (6)
would be of relevance to us in this case.
In clause (1) it has been mentioned that where the
allegations made in the first information report or the
complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused, then
the FIR or the complaint can be quashed.
As per clause (4), where the allegations in the FIR do not
constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by police
officer without an order dated by the Magistrate as
contemplated under Section 155 (2) of the CrPC, and in
such a situation, the FIR can be quashed.
Similarly, as provided under clause (6), if there is an
express legal bar engrafted in any of the provisions of the
CrPC or the concerned Act under which the criminal
proceedings is instituted, such proceeding can be
quashed.
9. Our criminal justice system, rooted in the rule of law,
contemplates different approaches for dealing with
serious and non-serious offences. When complaints
pertaining to serious offences are filed, which are
generally categorized as cognizable offences under the
CrPC, the police, on receiving such information of the
commission of a cognizable offence can immediately start
the investigation as contemplated under Section 156 of
the CrPC. On the other hand, when it relates to non-
serious offences which are generally categorized as non-
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cognizable offences, the law is more circumspect in letting
the full force of the criminal justice system operate. When
it is related to non-cognizable offence there are certain
safeguards put in place so that the invasive, intrusive,
and coercive power of the police is not immediately
brought into operation, as enabled under Section 156 of
the CrPC. In such a situation any complaint alleging
commission of non-serious offence(s) or non-cognizable
offence(s) made before the police, has to be vetted by a
legally trained person in the presence of a Judicial
Magistrate before the police can initiate the investigation.
Thus, even if the police receives any such complaint
relating to non-cognizable offence, the police cannot start
investigation without there being a green signal from the
Magistrate. Further, when such non- cognizable
offence(s) pertaining to officials who are obstructed from
discharging their official duties, there is the additional
safeguard before the Magistrate which permits the
investigating authority to investigate. It must be
preceded by a complaint filed by a public servant before
the court/Magistrate. This is to ensure that only genuine
complaints relating to non-serious offences or non-
cognizable offences are entertained by the Magistrate.
This is so for the reason that in a democracy, interactions
of the citizen with the public servants is more frequent in
wherein there may be instances where the members of
the public cause obstruction to public servants preventing
them from discharging public duties properly.
With these safeguards, the fine balance between the
liberties of the citizens and the imperatives of the State
endowed with coercive authority to maintain law and
order is preserved.
10. Keeping the aforesaid principles and aspects in mind,
we shall proceed to examine the issues and contentions
of the parties before us.
11. Chapter XII of the CrPC deals with information given
to the police and their powers to investigate.
Section 155 (2) of the CrPC provides that when
information is given to an officer in charge of a police
station of the commission within the limits of such station
of a non-cognizable offence, he shall enter or cause to be
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entered the substance of the information in a book to be
kept by such officer in such form as the State
Government may prescribe in this behalf, and refer the
informant to the Magistrate. Section 155(2) of the CrPC
further provides that no police officer shall investigate a
non-cognizable case without the order of a Magistrate
having power to try such a case or commit the case for
trial.
Relevant portions of Section 155 of the CrPC reads as
under:
“155. Information as to non-cognizable cases and
investigation of such cases.– (1) When information is
given to an officer in charge of a police station of the
commission within the limits of such station of a non-
cognizable offence, he shall enter or cause to be entered
the substance of the information in a book to be kept by
such officer in such form as the State Government may
prescribe in this behalf, and refer the informant to the
Magistrate.
(2) No police officer shall investigate a non-cognizable
case without the order of a Magistrate having power to
try such case or commit the case for trial.
…………………………………………………………..
……………………………………………………………” Thus, there is a
specific bar on the police to investigate any such non-
cognizable offence, without the order of a Magistrate.
12. However, no such bar has been placed when it relates
to a cognizable offence as provided under Sections 154
and 156 of the CrPC, under which, any officer in charge of
a police station may, without the order of a Magistrate,
investigate any cognizable case that a court having
jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the
provisions of Chapter XII, as reproduced herein below:
“154. Information in cognizable cases.–(1) Every
information relating to the commission of a cognizable
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offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving
it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf:
Provided that if ……………………………………………” “156. Police
officer’s power to investigate cognizable case.– (1) Any
officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case which a
Court having jurisdiction over the local area within the
limits of such station would have power to inquire into or
try under the provisions of Chapter XIII.
(2) …………………………………………………..
………………………………………………………….”
13. While Section 155 of the CrPC deals with all non-
cognizable offences, where the police cannot investigate
without a prior order of the Magistrate, Section 195 of the
CrPC provides additional conditions under which the
Magistrates can take cognizance in respect of certain
kinds of non-cognizable offences as mentioned in the said
section, which includes Section 186 of the IPC with which
we are directly concerned, only after a written complaint
is filed by the concerned public servant to the
court/Magistrate.
Relevant portions of Section 195 of the CrPC read as
follows:
“195. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and for
offences relating to documents given in evidence.
(1) No Court shall take cognizance–
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(a) (i) of any offence punishable under sections 172 to
188 (both inclusive) of the Indian Penal Code, (45 of
1860), or
(ii) of any abetment of, or attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate;
……………………………………… ………………………………………….”
14. Since, the appellant has been charged for committing
offences under Sections 186 and 353 of the IPC, it may
be appropriate to reproduce the same.
Section 186 of the IPC reads as follows:
“186. Obstructing public servant in discharge of public
functions.–Whoever voluntarily obstructs any public
servant in the discharge of his public functions, shall be
punished with imprisonment of either description for a
term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.
Section 353 of the IPC reads as follows:
“353. Assault or criminal force to deter public servant
from discharge of his duty.–Whoever assaults or uses
criminal force to any person being a public servant in the
execution of his duty as such public servant, or with
intent to prevent or deter that person from discharging
his duty as such public servant, or in consequence of
anything done or attempted to be done by such person to
the lawful discharge of his duty as such public servant,
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or
with both.”
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15. A bare perusal of Section 195 (1) of the CrPC clearly
indicates that there is a bar on the court to take
cognizance of any offence punishable under Section 172
to 188 (both inclusive) of the IPC except on a complaint
in writing made by the concerned public servant to the
court. Therefore, if it is found as contended by the
appellant that in respect of the offence under Section 186
of the IPC against him, no such complaint was filed by the
concerned public servant as contemplated under Section
195 (1)(a) CrPC, the CJM could not have taken
cognizance of the offence under Section 186 of the IPC.
In this regard, the appellant has specifically pleaded to
which there is no rebuttal from the State that no such
complaint was made in writing by a public servant as
required under Section 195(1) of the CrPC relating to the
commission of offence by the appellant under Section 186
of the IPC.
16. The State has, however, made a feeble attempt to
show that there was indeed a complaint filed by the
District Probation Officer to the City Magistrate, Varanasi,
on 03.06.2015, alleging that the appellants and his party
were creating obstructions to the officials in the process
of sending the minor children residing in the institution
run illegally by Sampoorn Development India to other
approved institutions and requested the City Magistrate to
take cognizance of the same and take legal action.
The aforesaid complaint reads as follows:
“To, City magistrate Varanasi Sir, By your order dated
June 3, 2015, letter no. 1346, Mr B.N. John, Ms Susan
John and their people are creating obstruction in the
process of sending the minor children residing in the non-
legal institution run by the Sampoorna Development Trust
to other Institutions legally. Please take cognizance of this
and take further legal action.
Sincerely Prabhat Ranjan 03/06/2013 District Probation
Officer.
Station Head Cantt/CO Cantt.
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S/O is creating obstruction in important work necessary
action.”
17. A careful examination of the aforesaid letter,
however, would reveal the following crucial aspect.
The said letter in the form of complaint is addressed to
the City Magistrate and not to any Judicial Magistrate. As
to what is a complaint is defined under Section 2 (d) of
the CrPC which reads as follows:
“2. Definitions.–In this Code, unless the context
otherwise requires,
(a) ……………………………
(b) ……………………………
(c) ……………………. ……..
(d) “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
Thus, a complaint within the meaning and scope of the
Criminal Procedure Code would mean such a complaint
filed before a Judicial Magistrate and not an Executive
Magistrate.
18. As regards the difference between a Judicial
Magistrate and an Executive Magistrate, it has been
clarified by this Court in Gulam Abbas v. State of U.P.,
(1982) 1 SCC 71 as follows:
“24. Turning to the 1973 Code itself the scheme of
separating Judicial Magistrates from Executive
Magistrates with allocation of judicial functions to the
former and the executive or administrative functions to
the latter, as we shall presently indicate, has been
implemented in the Code to a great extent. Section 6
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provides that there shall be in every State four classes of
criminal courts, namely,
(i) Courts of Session, (ii) Judicial Magistrates of the First
class and, in any metropolitan area, Metropolitan
Magistrates;(iii) Judicial Magistrates of the Second Class;
and (iv) Executive Magistrates; Sections 8 to 19 provide
inter alia for declaration of metropolitan area,
establishment of Courts of Session, Courts of Judicial
Magistrates, Courts of Metropolitan Magistrates and
appointments of Sessions Judges, Additional Sessions
Judges, Assistant Sessions Judges, Chief Judicial
Magistrates, Judicial Magistrates, Chief Metropolitan
Magistrates and Metropolitan Magistrates together with
inter se subordination, but all appointments being
required to be made by the High Court, while Sections 20,
21, 22 and 23 deal with appointments of District
Magistrates, Additional District Magistrates, Executive
Magistrates, Sub-Divisional Magistrates and Special
Executive Magistrates and their respective jurisdictions in
every district and metropolitan area together with inter se
subordination, but appointments being made by the State
Government. Chapter III comprising Sections 26 to 35
clearly shows that Executive Magistrates are totally
excluded from conferment of powers to punish, which are
conferred on Judicial Magistrates; this shows that if any
one were to commit a breach of any order passed by an
Executive Magistrate in exercise of his administrative or
executive function he will have to be challenged or
prosecuted before a Judicial Magistrate to receive
punishment on conviction. Further, if certain sections of
the present Code are compared with the equivalent
sections in the old Code it will appear clear that a
separation between judicial functions and executive or
administrative functions has been achieved by assigning
substantially the former to the Judicial Magistrates and
the latter to the Executive Magistrates. For example, the
power under Section 106 to release a person on
conviction of certain types of offences by obtaining from
him security by way of execution of bond for keeping
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peace and good behaviour for a period not exceeding
three years — a judicial function is now exclusively
entrusted to a Judicial Magistrate whereas under Section
106 of the old Code such power could be exercised by a
Presidency Magistrate, a District Magistrate or Sub-
Divisional Magistrate; but the power to direct the
execution of a similar bond by way of security for keeping
peace in other cases where such a person is likely to
commit breach of peace or disturb the public tranquillity
— an executive function of police to maintain law and
order and public peace which was conferred on a
Presidency Magistrate, District Magistrate, etc. under the
old Section 107 is now assigned exclusively to the
Executive Magistrate under the present Section 107;
Chapter X of the new Code deals with the topic of
maintenance of public order and tranquillity and in that
Chapter Sections 129 to 132 deal with unlawful
assemblies and dispersal thereof, Sections 133 to 143
deal with public nuisance and abatement or removal
thereof, Section 144 deals with urgent cases of nuisance
and apprehended danger to public tranquillity and
Sections 145 to 148 deal with disputes as to immovable
properties likely to cause breach of peace — all being in
the nature of executive (“police”) functions, powers in
that behalf have been vested exclusively in Executive
Magistrates whereas under equivalent provisions under
the old Code such powers were conferred indiscriminately
on any Magistrate, whether Judicial or Executive. In
particular it may be stated that whereas under the old
Section 144 the power to take action in urgent cases of
nuisance or apprehended danger to public tranquillity had
been conferred on “a District Magistrate, a Chief
Presidency Magistrate, a Sub-Divisional Magistrate or any
other Magistrate, specially empowered by the State
Government”, under the present Section 144 the power
has been conferred on “a District Magistrate, a Sub-
Divisional Magistrate or any other Executive Magistrate
specially empowered by the State Government in that
behalf”. Having regard to such implementation of the
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concept of separation of judicial functions from executive
or administrative functions and allocation of the former to
the Judicial Magistrates and the latter to the Executive
Magistrates under the Code of 1973, it will be difficult to
accept the contention of the counsel for Respondents 5
and 6 that the order passed by a District Magistrate, Sub-
Divisional Magistrate or any other Executive Magistrate
under the present Section 144 is a judicial or quasi-
judicial order, the function thereunder being essentially
an executive (police) function. ………………………….”
19. Since the Magistrate referred to under Section 155
under Chapter XII of the CrPC refers to a Magistrate who
has the power to try such case or commit the case for
trial and thus exercises judicial function, he has to be a
Judicial Magistrate. Further, under Section 195 (1) of the
CrPC read with Section 2 (d) of the CrPC, the complaint,
has to be filed before the court taking cognizance, and
the complaint which is required to be filed under Section
195 (1) of the CrPC, can only be before a Judicial
Magistrate and not an Executive Magistrate who does not
have the power to take cognizance of an offence or try
such cases.
20. In the present case, since the complaint was filed
before the City Magistrate and not before a Judicial
Magistrate, the requirement of Section 195 (1) of the
CrPC was not fulfilled.
21. Under such circumstances, we are satisfied that the
appellant has been able to make out a case that taking
cognizance of the offence under Section 1State of
Haryana vs. Bhajan Lal (supra); State of Bihar vs. PP
Sharma, 1992 SCC (Cr) 192; and Zandu Pharmaceutical
Works Ltd. vs. Mohd. Saraful Haq and another 86 of the
IPC by the Court of CJM, Varanasi, was illegal, as before
taking such cognizance it was to be preceded by a
complaint in writing by a public servant as required under
Section 195(1) of the CrPC. A written complaint by a
public servant before the court takes cognizance is sine
qua non, absence of which would vitiate such cognizance
being taken for any offence punishable under Section 186
of the IPC.
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22. This leads us to the next consideration as to whether
taking cognizance of the offence under Section 353 of the
IPC by the CJM, Varanasi, was in order or not.
23. For a prohibited act to come within the scope of the
offence under Section 353 of the IPC, such an act must
qualify either as an assault or criminal force meant to
deter public servant from discharge of his duty.
Obviously, such an act cannot be a mere act of
obstruction which is an offence under Section 186 of the
IPC. The offence contemplated under Section 353 of the
IPC is of a more serious nature involving criminal force, or
assault which attracts more stringent punishment that
may extend to two years. On the other hand, the offence
of obstruction covered under Section 186 of the IPC is
punishable by imprisonment, which may extend to three
months at the maximum.
A close examination of Section 353 of the IPC would
indicate that to invoke the aforesaid offence, there must
be use of criminal force or assault on any public servant
in the execution of his official duty or with the intent to
prevent or deter such public servant from discharging his
duty. It would be clear from a reading of the provisions of
Section 186 as well as Section 353 of the IPC that Section
353 of the IPC is the aggravated form of offence where
criminal force or assault is involved. Unlike in the case of
Section 186 of the IPC where voluntarily obstructing any
public servant in discharge of his official function is
sufficient to invoke the said section, in the case of offence
under Section 353 of the IPC as mentioned above, not
only obstruction but actual use of criminal force or assault
on the public servant is necessary.
24. In the present case, however, what can be seen from
a perusal of the contents of the FIR, is that no such
allegation of assault or use of criminal force has been
made. The aforesaid FIR is based on the complaint filed
by the District Probation Officer, which has already been
quoted above, and the same has been reproduced
verbatim in the said FIR in which only the allegation of
creating disturbance has been made.
25. In the FIR there is no allegation of use of criminal
force or assault by the appellant so as to invoke the
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provision of Section 353 of the IPC. It is to be
remembered that a criminal process is initiated only with
the lodging of an FIR. Though FIR is not supposed to be
an encyclopedia containing all the detailed facts of the
incident and it is merely a document that triggers and
sets into motion the criminal legal process, yet it must
disclose the nature of the offence alleged to have been
committed as otherwise, it would be susceptible to being
quashed as held in Bhajan Lal‘s case (supra) (vide clause
1 of Para 102 of the decision).
This Court in CBI v. Tapan Kumar Singh, (2003) 6 SCC
175 observed as follows:
“20. It is well settled that a first information report is not
an encyclopaedia, which must disclose all facts and
details relating to the offence reported. An informant may
lodge a report about the commission of an offence though
he may not know the name of the victim or his assailant.
He may not even know how the occurrence took place. A
first informant need not necessarily be an eyewitness so
as to be able to disclose in great detail all aspects of the
offence committed. What is of significance is that the
information given must disclose the commission of a
cognizable offence and the information so lodged must
provide a basis for the police officer to suspect the
commission of a cognizable offence. At this stage it is
enough if the police officer on the basis of the information
given suspects the commission of a cognizable offence,
and not that he must be convinced or satisfied that a
cognizable offence has been committed. If he has reasons
to suspect, on the basis of information received, that a
cognizable offence may have been committed, he is
bound to record the information and conduct an
investigation. At this stage it is also not necessary for him
to satisfy himself about the truthfulness of the
information………………………” (emphasis added)
26. However, a perusal of the FIR in issue does not at all
indicate the commission of any crime of use of criminal
force or assault by the appellant to the public servant,
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except for the offence of obstruction which is punishable
under Section 186 of the IPC. As such the ingredients of
offence under Section 353 of the IPC are clearly absent in
the FIR. To that extent, we are in agreement with the
appellant that since no ingredient for the offence under
Section 353 of the IPC is found in the FIR, taking
cognizance by the CJM of an offence that is not made out
in the FIR does not appear to be correct.
27. The High Court, however, has held that on a perusal
of the contents of the FIR and the statement made by the
witnesses recorded under Section 161 of the CrPC, it can
be said that a prima facie case has been made out
against the appellant for commission of offences under
Section 353 and Section 186 of the IPC. It is to be noted
that the FIR was filed under Section 353 of the IPC
without mentioning Section 186 of the IPC.
What is to be noted in the present case is that if the
appellant had actually used criminal force or had
assaulted the public servants, which would bring the said
acts within the scope of Section 353 of the IPC, nothing
prevented the complainant from mentioning the same in
the FIR being the first information. If such vital and
crucial facts are missing from the FIR of which the
complainant was fully aware of and was already cognizant
of, which he could have mentioned at the first instance, it
would indicate that any subsequent mentioning of these
facts in the case by the complainant would be an
afterthought as has happened in the present case. The
alleged fact of assault, or use of criminal force by the
appellant could not be said to have been discovered at a
later point of time, as these offensive acts, if really had
happened, would have happened before the filing of the
FIR/complaint and thus should have found mention in the
FIR. These acts were not something that had happened at
a later point of time, but would have been known to the
complainant had these happened when the complainant
and official party were raiding the hostel managed by the
appellant. Thus, the absence of mentioning these alleged
acts which would constitute ingredients of the offence
under Section 353 of the IPC, renders the FIR legally
untenable as far as the offence under Section 353 of the
IPC is concerned. We do not see any reason why the
complainant failed to mention in the FIR the alleged use
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of criminal force or assault of the public servants to
prevent them from discharging their official duties when
they were raiding the premises.
28. It appears from the impugned order of the High Court
that the High Court also perused the statements of the
witnesses recorded under Section 161 of the CrPC during
the investigation. We have also gone through these
statements made by Sh. Prabhat Ranjan, District
Probation Officer; Sh. Satyendra Nath Shukla, City
Magistrate; Sh. Vindhavasini Rai, Addl. District
Magistrate; and Sh. Surendra Dutt Singh, ACM-IV.
What is interesting to note is that Sri Prabhat Ranjan, the
District Probation Officer, Varanasi, who filed the
complaint to the City Magistrate stated in his statement
recorded under Section 161 of the CrPC that the people in
the hostel premises attacked the official team, and
thereafter, the FIR was lodged. However, when the FIR
was lodged soon after the alleged incident of attack on
the officials, nothing was mentioned in the complaint filed
by him about the attack, which was the basis for
registering the FIR, which we are unable to comprehend.
If indeed there was an attack as alleged, it should have
found mention in the FIR or the written complaint filed
before the City Magistrate soon after the incident.
29. We have also perused the statement of Sri Satyendra
Nath Shukla, the City Magistrate who in his statement
recorded under Section 161 of the CrPC on 20.06.2015,
stated that the people in the hostel premises “were
creating obstruction in the government work in the
proceeding being carried out. In such a situation, when
asked to submit the records again, the husband, wife and
some other people along with them became aggressive by
speaking loudly, due to which, while somehow trying to
escape, around 5:30 pm, the husband, the wife and
others created a difficult situation by obstructing the
work, which did not allow the rescue to be completed
successfully. After this some children were rescued by the
Women District Program Officer with the help of the
District Horticulture officer, and the children were sent to
Ramnagar, after which they were free. Then when we
asked for the record, Ben John spoke loudly, and his wife
and other children got very angry and seemed to be
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intent on becoming forceful. After this, the District
Probation Officer came to me with an application
regarding obstruction and assault in government work, on
which I passed the order and the SHO Cantt registered a
case.” On examination of the said statement of the City
Magistrate, we are of the view that even if the said
statement is taken at its face value, it does not disclose
any ingredient of criminal force or assault to make the
offence under Section 353 of the IPC, except for making a
bald statement that they were aggressive without
disclosing in what manner the officials were obstructed or
attacked.
30. We have also gone through the statement made by
Sri Surendra Dutt Singh, ACM, 4th District. While he
mentions that the appellant and others became
aggressive and attacked all the officers, nothing has been
mentioned as to how they were attacked, but only a very
generalized allegation has been made without specifics.
Similarly, the other witnesses also stated the same effect.
31. We do not see any reason why the aforesaid alleged
assault or attack was not mentioned in the FIR since soon
after the alleged incident happened in the hostel
premises, the FIR was lodged. On the other hand, the
written complaint to the City Magistrate only uses the
expression of “creating obstruction” by stating that “Mr.
B.N. John, Ms. Susan John and their people are creating
obstruction in the process of sending the minor children
residing in the non-legal institution run by the Sampoorna
Development Trust to other institutions legally. Please
take cognizance of this and take further legal action”.
32. There can be no doubt that there is a sea of
difference between “creating disturbance” and the
“assault” and “criminal force” terms mentioned under
Section 353 of the IPC and defined under Sections 350
and 351 of the IPC respectively.
“Criminal force” has been defined under Section 350 IPC,
which reads as follows:
“350. Criminal force. –Whoever intentionally uses force
to any person, without that person’s consent, in order to
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the committing of any offence, or intending by the use of
such force to cause, or knowing it to be likely that by the
use of such force he will cause injury, fear or annoyance
to the person to whom the force is used, is said to use
criminal force to that other.” “Assault” has been defined
under Section 351 of the IPC which reads as follows:
“351. Assault. –Whoever makes any gesture, or any
preparation intending or knowing it to be likely that such
gesture or preparation will cause any person present to
apprehend that he who makes that gesture or preparation
is about to use criminal force to that person, is said to
commit an assault.
Explanation.–Mere words do not amount to an assault.
But the words which a person uses may give to his
gestures or preparation such a meaning as may make
those gestures or preparations amount to an assault.”
33. If “disturbance” has to be construed as “assault” or
“criminal force” without there being specific acts
attributed to make such “disturbance” as “assault” or
“criminal face” within the scope of Section 353 of the IPC,
it would amount to abuse of the process of law. While
“disturbance” could also be caused by use of criminal
force or assault, unless there are specific allegations with
specific acts to that effect, mere allegation of “creating
disturbance” cannot mean use of “criminal force” or
“assault” within the scope of Section 353 of the IPC.
34. As noted and discussed above, nothing was
mentioned in the complaint/FIR of any specific acts apart
from alleging that the appellant and his party were
creating disturbance. Nothing has been mentioned how
disturbance was created because of assault or use of
criminal force. Thus, the contents of the statements
recorded later under Section 161 of the CrPC clearly
appears to be an afterthought and the allegation of
assault/attack was introduced later on, which is
inconsistent with the contents of the original FIR.
35. Under the circumstances, we are of the view that non
mentioning of these vital facts in the FIR/first complaint,
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which would indicate assault or criminal force within the
scope of Section 353 of the IPC, would vitiate the
cognizance taken by the CJM. These vital facts, which
constitute the ingredients for offence under Section 353
of the IPC, were not revealed in the FIR. On the other
hand, the contents of the FIR would reveal the
commission of only non-cognizable offence of obstructing
the discharge of official duties of public servants, which
would fall within the scope of Section 186 of the IPC, in
which event, without the order of the Judicial Magistrate,
no investigation could have been launched by the police
against the appellant in the said FIR.
It is also to be noted that in the said FIR, Section 186 of
the IPC was not even mentioned. We have already found
that no complaint was lodged by a public servant against
the appellant and his party before the Magistrate/court
alleging commission of offence under Section 186 of the
IPC as required under Section 195 (1) of the CrPC read
with Section 155 of the CrPC. The written complaint filed
by the District Probation Officer was not to a Judicial
Magistrate but to an Executive Magistrate, hence was not
valid. The police could not have investigated the said
offence under Section 186 of the IPC. Thus, the very act
of taking cognizance at the initial stage by the CJM,
Varanasi, on the basis of the FIR under Section 353 of the
IPC, which does not disclose the ingredients and
commission of cognizable offence under Section 353 of
the IPC, appears to be contrary to law. If the initial
process is vitiated, the subsequent process would also
stand vitiated.
In State of Punjab vs. Davinder Pal Singh Bhullar (2011)
14 SCC 770, it was held as follows:
“107. It is a settled legal proposition that if initial action is
not in consonance with law, all subsequent and
consequential proceedings would fall through for the
reason that illegality strikes at the root of the order. In
such a fact situation, the legal maxim sublato fundamento
cadit opus meaning thereby that foundation being
removed, structure/work falls, comes into play and
applies on all scores in the present case.
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108. In Badrinath v. Govt. of T.N. [(2000) 8 SCC 395 :
2001 SCC (L&S) 13 : AIR 2000 SC 3243] and State of
Kerala v. Puthenkavu N.S.S. Karayogam [(2001) 10 SCC
191] this Court observed that once the basis of a
proceeding is gone, all consequential acts, actions, orders
would fall to the ground automatically and this principle is
applicable to judicial, quasi-judicial and administrative
proceedings equally.”
36. What is evident from the records is that the police
entertained the FIR under Section 353 of the IPC and
investigated the same by conferring jurisdiction upon
itself as if it was a cognizable offence as provided under
Section 156 of the CrPC, when commission of any
cognizable offence was not made out in the FIR, which is
not permissible in law. The police added Section 186 of
the IPC later, and the CJM, Varanasi, took cognizance of
the offence of Section 186 of the IPC along with Section
353 of the IPC when no complaint was made by any
public servant to the CJM or any court as required under
Section 195 (1) of the CrPC.
37. We are mindful of the position that where, during the
investigation of a cognizable or non-cognizable offence on
the basis of an FIR lodged, new facts emerge that will
constitute the commission of a non-cognizable offence
under IPC, in which event, the police can continue with
the investigation of the non-cognizable offence of which
there cannot be any dispute.
Thus, even if it is assumed that in the course of the
investigation of a cognizable offence, the ingredients of a
non-cognizable offence are discovered then the police
could have continued the investigation without the written
complaint to the court or the order of the court in respect
of such non-cognizable offence, as it would also be
deemed to be a cognizable offence under Section 155(4)
of the CrPC, but where the investigation of the cognizable
office itself suffers from legal infirmity and without
jurisdiction from the initial stage, the entire investigation
would be vitiated. For this reason, the police cannot seek
the shield under Section 155 (4) of the CrPC when the
FIR did not disclose the commission of a cognizable
offence.
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38. As discussed above, the offence allegedly committed
by the appellant as disclosed in the FIR can, at best, be
that of a non-cognizable offence under Section 186 of the
IPC, though Section 186 of the IPC is not even mentioned
in the FIR. It is evident that Section 186 of the IPC was
added subsequently, of which the CJM took cognizance
later. The FIR does indicate that a letter was written by
the District Probation Officer to the City Magistrate, but
the said letter pertains to the filing of the FIR under
Section 353 of the IPC and not for offence under Section
186 of the IPC. Further, the said letter dated 03.06.2015
was not addressed to the CJM, Varanasi, before whom
such a written complaint was supposed to be made to
enable the Court to take cognizance of the offence under
Section 186 of the IPC.
39. We have also perused the order dated 13.10.2015
passed by the High Court in the earlier case filed by Mrs.
Susan John, the co-accused, wherein the High Court
declined to quash the charge sheet No. 162 of 2015 dated
20.6.2015 in the same Case Crime No. 290 of 2015
pending before the Court of CJM, Varanasi, on the ground
that perusal of the material on record and looking into the
facts of the case at that stage, it cannot be said that no
offence is made out against the applicant, and all the
submissions made at the Bar relate to the disputed
questions of fact, which cannot be adjudicated by the
court under Section 482 of the CrPC, and at that stage
only the prime facie case is to be seen in the light of the
law laid down by this Court in the cases of R P Kapoor vs.
State of Punjab, AIR 1960 SC 866; State of Haryana vs.
Bhajan Lal (supra); State of Bihar vs. PP Sharma, 1992
SCC (Cr) 192; and Zandu Pharmaceutical Works Ltd. vs.
Mohd. Saraful Haq and another, 2005 SCC(Cr) 283.
40. However, it is noticed that the High Court did not
examine any of the issues as discussed above in this
appeal. The said decision of the High Court was not
interfered with by this Court, and the SLP filed against the
said order dated 13.10.2015 was dismissed in limine by
this Court.
This Court has reiterated that in limine dismissal of a
Special Leave Petition at the threshold without giving any
detailed reasons does not constitute any declaration of
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law or a binding precedent under Article 141 of the
Constitution. In State of Punjab vs. Davinder Pal Singh
Bhullar (2011) 14 SCC 770, it was held as follows:
“113. A large number of judicial pronouncements made
by this Court leave no manner of doubt that the dismissal
of the special leave petition in limine does not mean that
the reasoning of the judgment of the High Court against
which the special leave petition had been filed before this
Court stands affirmed or the judgment and order
impugned merges with such order of this Court on
dismissal of the petition. It simply means that this Court
did not consider the case worth examining for a reason,
which may be other than the merit of the case. An order
rejecting the special leave petition at the threshold
without detailed reasons, therefore, does not constitute
any declaration of law or a binding precedent.” We are,
thus, of the view that said decision of the High Court and
dismissal in limine by this Court will not come in the way
of disposal of this appeal on merits.
41. Under the circumstances, we are of the opinion that
taking cognizance by the CJM, Varanasi, of the offences
under Section 353 of the IPC and 186 of the IPC was not
done by following the due process contemplated under
the provisions of law, and accordingly, the same being
contrary to law, all the orders passed pursuant thereto
cannot be sustained and would warrant interference from
this Court.
42. For the reasons discussed above, we are satisfied that
the appellant has been able to make out the case for
quashing the criminal proceedings pending against the
appellant before the CJM, Varanasi.
43. Accordingly, we allow this appeal by quashing Case
No. 9790 of 2015 arising out of Case Crime No. 290 of
2015 under Sections 353 and 186 of the IPC, under P.S.
Cantt, District Varanasi, pending before the Court of the
CJM, Varanasi, and the consequent orders passed by the
CJM, Varanasi in taking cognizance and issuing summon
to the appellant.
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Consequently, the impugned order dated 22.09.2023
passed by the Allahabad High Court in Application Under
Section 482 No. 35311 of 2023 is also set aside.”
4. A Coordinate Bench of this Court in the case of SRI
RAJASHEKHARANANDA SWAMIJI AND ANOTHER v. THE
STATE OF KARNATAKA, in Crl.P.No. 13328/2018 disposed
off on 18.06.2021 has held as under:
“Whether the proceedings in C.C.No.3660/2016 on the file
of Judicial Magistrate First Class (III Court), Mangalore,
Dakshina Kannada against the petitioners are sustainable in
law? is the question involved in this case.
2. On the basis of the complaint (Annexure-B) filed by
A.K.Rajesh, Police Inspector, Mangalore Rural Police
registered the first information report in Crime
No.428/2014 (Annexure-C) against the petitioners and
others for the offences punishable under Sections 143, 144,
145, 147, 148, 153, 188, 332, 353 of IPC and Sections
2(a) and 2(b) of the Karnataka Prevention of Destruction
and Loss of Property Act, 1981 (‘KPDLP Act’ for short).
3. On investigation, Mangalore Rural Police charge sheeted
the petitioners and others for the offences punishable
under Sections 143, 144, 145, 147, 148, 153, 188, 332,
353 of IPC and Sections 2(a) and 2(b) of the KPDLP Act. In
the charge sheet the petitioners are shown as accused
Nos.1 and 12.
4. The case of the prosecution in brief is as follows:
The Commissioner of Police, Mangalore city
promulgated the prohibitory order from 6.00 a.m. to 6.00
p.m. of 08.12.2014 and prohibited assembling of five or
more persons in Mangalore city. The accused persons
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violating such prohibitory order organized procession
consisting 2000 persons belonging to Hindu Organization.
When the complainant and his colleagues tried to prevent
the accused from proceeding with the procession advising
that, that is likely to create communal tensions, the
accused obstructed the police from discharging their duties,
crashed the barricades erected at the scene of offence,
damaged the police vehicles and caused injuries to CWs.5
to 8.W.P.No.13328/2018
5. On receipt of charge sheet, the Magistrate by order
dated 24.10.2016 took cognizance of the offences
punishable under Sections 143, 144, 145, 147, 148, 153,
188, 332, 353 of IPC and Sections 2(a) and 2(b) of the
KPDLP Act and summoned the accused to face trial for the
said offences.
6. The petitioners seek quashing of Annexures-A to
Annexures-D on the ground that the prime offence was
under Section 188 of IPC and Section 195 of Cr.P.C. bars
taking cognizance of such offences, except upon the
complaint as required under Section 200 of Cr.P.C,
therefore the whole proceedings are without jurisdiction.
7. As rightly pointed out, Section 188 of IPC is the main
offence. The other offences flow from that Section
195(1)(a) of Cr.P.C. bars the Court to take cognizance of
such offence unless in accordance with the procedure laid
down therein. Section 195(1)(a) reads as follows:
“195. Prosecution for contempt of lawful
authority of W.P.No.13328/2018 justice and
for offences relating to documents given in
evidence(1) No Court shall take cognizance-
(a)(i) of any offence punishable under sections
172 to 188 (both inclusive) of the Indian Penal
Code, 1860 (45 of 1860 ); or
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(ii) of any abetment of, or attempt to commit,
such offence; or
(iii) of any criminal conspiracy to commit such
offence, except on the complaint in writing of
the public servant concerned or of some other
public servant to whom he is administratively
subordinate;”
8. Reading of the above provision makes it clear that to
take cognizance there should be a written complaint and
such complaint should be filed either by the officer issuing
such promulgation order or the officer above his rank. In
the case on hand, as per the complaint itself, prohibitory
order under Section 144 of IPC was promulgated by the
Commissioner of Police and not the complainant.
9. Further Section 2(d) of Cr.P.C. defines complaint as
allegations made orally or in writing to the Magistrate with
a view to the Magistrate taking action on such complaint
under the Code. Only on such complaint, the Magistrate
can take cognizance under Section 190(1)(a) of Cr.P.C.
Thereafter the procedure prescribed under Section 200 of
Cr.P.C. has to be followed. Therefore the first information
report, charge sheet and the order taking cognizance on
such charge sheet are without jurisdiction.
10. Then the question is Annexures-A to D get vitiated only
so far as the offence under Section 188 of IPC. In para 8 of
the judgment in State of Karnataka v. Hemareddy1, the
Hon’ble Supreme Court held as follows:
“8. We agree with the view expressed by the
learned Judge and hold that in cases where in
the course of the same transaction an offence
for which no complaint by a Court is necessary
under Section 195(1)(b) of the Code of
Criminal Procedure and an offence for which a
complaint of a Court is necessary under that
sub-section, are committed, it is not possible
to split up and hold that the prosecution of the
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accused for the offences not mentioned in
Section 195(1)(b) of the Code of Criminal
Procedure should be upheld.”
(Emphasis supplied)
11. Reading of the above judgment makes it clear that if
the offences form part of same transaction of the offences
contemplated under Section 195(1) of Cr.P.C, then it is not
possible to split up and hold that prosecution of the
accused for the other offences should be upheld. Therefore
the entire complaint, first information report, charge sheet
and the order taking cognizance are liable to be quashed.
The petition is allowed. The impugned first information
report, complaint, the charge sheet and the proceedings in
C.C.No.3660/2016 are hereby quashed.
5. Similarly, another Coordinate Bench of this Court in
the case of UMESH SHETTY v. STATE OF KARNATAKA, in
W.P.No.7228/2023 c/w W.P.No.14239/2023 disposed off on
27.02.2024 has observed as under:
“The fact matrix of both these cases is substantially
similar and they arise from the very same complaint as
well wherein violation of the provisions of Section 188 of
Indian Penal Code, 1860 has been alleged. Cognizance
having been taken by the learned Judge of the Court
below, process has been issued to the
accused/petitioners. That is how they are before this
court seeking quashment of the same.
2. Learned Sr. Advocate Mr.Aruna Shyam appearing
for the petitioners submits that the cognizance of the
offence could not have been taken by the court below, the
private complaint filed u/s 200 of the Code of Criminal
Procedure, 1973, for the subject offence itself being
incompetent. In support of this, he banks upon of a
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Coordinate Bench decision in W.P.No.13328/2018 (GM-
RES) between SRI. RAJASHEKHARANANDA SWAMIJI AND
ANOTHER vs. STATE OF KARNATAKA, disposed off on
18.6.2021. He further submits that the provisions of
Section 195 of the Code of Criminal Procedure, 1973
having been held mandatory by the Apex Court in SALONI
ARORA V. STATE (NCT OF DELHI), (2017) 3 SCC 286, the
quashment has to be granted by this court.
3. Learned Addl. SPP appearing for the respondent
opposes the petitions contending that there can be
delegation of power to lodge the complaint and therefore,
in such an event, the author who promulgated the order
in question need not go before the court to complain.
Even otherwise, according to him, the arguable infirmity
not going to root of the matter, no relief can be granted
to the petitioners, as prayed for. So contending, he seeks
dismissal of the petitions.
4. Having heard the learned counsel for the parties
and having perused the Petition Papers, this court is
inclined to grant relief to the petitioners, broadly agreeing
with the submission made on their behalf. Similar
question had cropped up before the Coordinate Bench in
Rajashekharananda Swamiji supra. A paragraphs 8 & 10
of the judgement, it is observed as under:
“8. Reading of the above provision makes it clear
that to take cognizance there should be a written
complaint and such complaint should be filed
either by the officer issuing such promulgation
order or the officer above his rank. In the case on
hand, as per the complaint itself, prohibitory order
under Section 144 of IPC was promulgated by the
Commissioner of Police and not the complainant.
10. Then the question is Annexures-A to D get
vitiated only so far as the offence under Section
188 of IPC. In para 8 of the judgment in State of
Karnataka v. Hemareddy1, the Hon’ble Supreme
Court held as follows:
“8. We agree with the view expressed by the
learned Judge and hold that in cases where in the
course of the same transaction an offence for
which no complaint by a Court is necessary under
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Section 195(1)(b) of the Code of Criminal
Procedure and an offence for which a complaint of
a Court is necessary under that sub-section, are
committed, it is not possible to split up and hold
that the prosecution of the accused for the
offences not mentioned in Section 195(1)(b) of the
Code of Criminal Procedure should be upheld.”
(Emphasis supplied)”
The above observations come to the aid of petitioners.
5. The vehement submission of learned Addl. SPP that
there can be delegation of “power to complain” in terms
of promulgated order in question, is bit difficult to
countenance in the absence of such delegation being
demonstrated from the text of the said order itself. It has
been a settled position of law vide In Re Delhi Laws Act,
1951 SCC OnLine SC 45 that a delegate cannot further
delegate: delegatus non potesta potestas delegare.
Contra having not been shown, the contention of the kind
cannot be countenanced.
In view of the above, these petitions being
meritorious are allowed to meet the ends of justice and to
prevent the abuse of process of the court; the impugned
proceedings in C.C.No.24636/2022 pending on the file of
learned VI Addl. Chief Metropolitan Magistrate, Bengaluru,
are quashed.”
5. In fact, at paragraph No.11 of
RAJASHEKHARANANDA SWAMIJI case supra also indicates that
in addition to the offences p/u/s 186 offences covered in
addition to the offences covered under Section 195 (1)(a), if
other offences are also included in the FIR/Charge sheet even
then it is only a private complaint that would be maintainable
and a police complaint and registration of an FIR and all
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further proceedings are impermissible in law and would deserve
to be quashed.
6. In the instant case, a perusal of the material on
record will indicate that the Petitioners are charged of the
offences p/u/s 186 of IPC without there being a prior private
complaint as envisaged under Section 195(1)(a) of Cr.P.C. and
consequently the impugned proceedings nor deserves to be
quashed. In so far as offences p/u/s 160 are concerned, in the
light of the principles enunciated in RAJASHEKHARANANDA
SWAMIJI case, at Paragraph No.11, and reiterated by another
Coordinate Bench in UMESH SHETTY case supra, this Petition
deserves to be allowed.
7. In the result, I pass the following:-
ORDER
i) The petition is allowed.
(ii) The proceedings in C.C.No.50876/2020 (arising out
of Crime No.413/2019 registered for the offences punishable
under Sections 186, 160 OF IPC, pending on the file of XXIX
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ACMM, Mayohall Unit, Bengaluru insofar as the petitioners are
concerned are hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BSV
List No.: 1 Sl No.: 45
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