Patna High Court
Bijay Kumar @ Bijay Kumar Bimal @ Sri Dr … vs State Of Bihar And Anr on 7 January, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.28002 of 2016
Arising Out of PS. Case No.-176 Year-2015 Thana- GAMAHARIYA District- Madhepura
======================================================
Bijay Kumar @ Bijay Kumar Bimal @ Sri Dr Vijay Kumar Bimal @ Vijay
Kumar Bimal son of Sri Pulkit Prasad Yadav, Resident of Mohalla- Vidyapuri,
Ward No. 18, Madhepura, P.O. and P.S. Madhepura, District- Madhepura.
... ... Petitioner
Versus
1. State Of Bihar
2. Dhrub Kumar, son of not known to the petitioner, Presently posted as the
Circle Officer, Gamharia, P.O. and P.S. Gamharia, District- Madhepura.
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner/s : Mr. Shashi Bhushan Kumar Manglam, Advocate
Mr. Awnish Kumar, Advocate
Mr. Vikash Kumar Singh, Advocate
For the Opposite Parties : Mr. Upendra Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 07-01-2025
The present petition under Section 482 Cr.PC has
been preferred against the impugned order dated 07.04.2016,
passed by Sri Sunil Kumar Singh-III, learned A.C.J.M-IV,
Madhepura, whereby learned A.C.J.M has taken cognizance of
offence punishable under section 188/171C of IPC.
2. The relevant facts of the case are that on a written
report of Circle Officer-cum-Incharge Officer, Flying Squad,
Gamhariya P.S. Case No. 176 of 2015, was lodged on
31.10.2015
for offence punishable under Section 188/171C of
the Indian Penal Code against the petitioner.
3. As per the written report, on 31.10.2015 at 1:30
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PM, the petitioner, a BJP candidate for Bihar General Assembly
Election 2015, was doing road show along with his party
workers on State highway in Gamhariya market, along with
more than ten two-wheeler vehicles and more than two four-
wheeler vehicles. Even videography of the occurrence was done
by the officer of the Statistic Surveillance Party.
4. I heard learned counsel for the petitioner and
learned APP for the state and perused the materials on record.
5. Learned counsel for the petitioner submits that the
petitioner is innocent and has falsely been implicated in this
case. He further submits that as per the allegation made in the
written report, no case is made out either under Section 188 or
under Section 171C of IPC. No reference to any
order/proclamation of the State Government, which has been
violated by the petitioner, has been made in the written report,
nor is any allegation in the written report that the alleged
disobedience of the petitioner has caused or tended to cause
obstruction, annoyance or injury or risk to any person lawfully
employed, nor is any allegation that the alleged disobedience
caused or tended to cause danger to human life, health or safety
or riot or affray. Hence, Section 188 IPC is not attracted in the
alleged facts and circumstances of the case.
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6. He also submits that even Section 171C of IPC is
not attracted in the alleged facts and circumstances. There is no
allegation that the petitioner has interfered or tended to interfere
with the free exercise of any electoral right of any voter.
7. He further submits that cognizance of learned
Magistrate under Section 188 IPC is also not sustainable in view
of Section 195(1)(a) Cr.PC, which provides that no Court shall
take cognizance of any offence punishable under Section 172 to
188, (both inclusive) of Indian Penal Code, except on the
complaint in writing of a public servant concerned or by some
other public servant to whom he is administratively subordinate.
But in the case on hand, no complaint was filed by the
concerned public servant. In stead of complaint, written report
was submitted before the police which registered FIR on the
basis of the said written report and after investigation charge-
sheet was submitted and on the basis of which, cognizance of
offence punishable under Section 188 and 171C of IPC was
taken by learned Magistrate against the petitioner by the
impugned order.
8. However, learned APP for the State defends the
impugned order submitting that there is no illegality or infirmity
in it and the present petition is liable to be dismissed.
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9. To substantiate his submission, he submits that the
offence under Section 188 IPC is a cognizable offence and
hence, the police has rightly registered FIR and submitted
charge-sheet and learned Magistrate has rightly passed the
impugned order taking cognizance of offence punishable under
Sections 188 and 171C of IPC against the petitioner. He refers
to and relies upon Lalita Kumari Vs. State of U.P., (2014) 2
SCC 1.
10. In view of rival submissions of the parties, it
would be pertinent to refer to Sections 188 and Section 171C
of IPC, which are as follows.
“188. Disobedience to order duly promulgated by public
servant.–
Whoever, knowing that, by an order promulgated by a public
servant lawfully empowered to promulgate such order, he is
directed to abstain from a certain act, or to take certain order
with certain property in his possession or under his
management, disobeys such direction,
shall, if such disobedience causes or tends to cause obstruction,
annoyance or injury, or risk of obstruction, annoyance or
injury, to any person lawfully employed, be punished with
simple imprisonment for a term which may extend to one
month or with fine which may extend to two hundred rupees,
or with both;
and if such disobedience causes or trends to cause danger to
human life, health or safety, or causes or tends to cause a riot or
affray, shall be punished with imprisonment of either
description for a term which may extend to six months, or with
fine which may extend to one thousand rupees, or with both
.Explanation.– It is not necessary that the offender should
intend to produce harm, or contemplate his disobedience as
likely to produce harm. It is sufficient that he knows of the
order which he disobeys, and that his disobedience produces,
or is likely to produce, harm.
171C. Undue influence at elections.–
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5/15(1) Whoever voluntarily interferes or attempts to interfere with
the free exercise of any electoral right commits the offence of
undue influence at an election.
(2) Without prejudice to the generality of the provisions of sub-
section (1), whoever–
(a) threatens any candidate or voter, or any person in whom a
candidate or voter is interested, with injury of any kind, or
(b) induces or attempts to induce a candidate or voter to believe
that he or any person in whom he is interested will become or
will be rendered an object of Divine displeasure or of spiritual
censure,
shall be deemed to interfere with the free exercise of the
electoral right of such candidate or voter, within the meaning of
sub-section (1).
(3) A declaration of public policy or a promise of public action,
or the mere exercise of a legal right without intent to interfere
with an electoral right, shall not be deemed to be interference
within the meaning of this section.”
11. It is also pertinent to refer to Section 195(1)(a)
Cr.PC, which reads as follows:-
“(1) No court shall take cognizance-
(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 other public servant to whom he is
administratively subordinate;
…………………………………………………………………”
12. The plain reading of the aforesaid statutory
provisions of Section 195(1)(a) Cr.PC, clearly shows that
general power of Magistrate to take cognizance of a cognizable
offence on police report is curtailed by providing that
cognizance of offence punishable under Sections 172 to 188 IPC
can be taken only upon the complaint in writing of the public
servant concerned or his administratively superior public
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servant. In other words, a Magistrate cannot take cognizance of
offence punishable under Section 188 IPC upon police report,
though the offence under Section 188 IPC is cognizable as per
schedule 1 to Cr.PC.
13. Now question is what is complaint and whether it
is different from police report. Complaint has been defined by
Section 2(d) of Cr.PC as per which, complaint means any
allegation made orally or in writing to a Magistrate, with a view
to his taking action under the Code. But it does not include a
police report. Even under the Explanation to Section 2(d), a
police report disclosing cognizable offence is not deemed to be
a complaint. As per Section 2(d), only such police report which
discloses commission of any non-cognizable offence is deemed
as complaint. Section 2(d) of Cr.PC reads as follows:-
“2. Definitions.- In this code, unless the context otherwise
requires.-
(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.
Explanation.- A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall
be deemed to be the complainant;”
14. As such, the Magistrate is not competent to take
cognizance of offence punishable under Section 188 IPC on
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police report. He can take cognizance of such offence only on
complaint of the public servant whose order has been violated or
on the complaint of an administratively superior public servant.
15. The object of Section 195 Cr.PC is to protect
persons from vexatious prosecution prompted by malice or ill-
will at the instance of private individuals for the offences
specified in Section 195 Cr.PC.
16. It has been also consistently held by Hon’ble
Supreme Court that the provisions under Section 195 Cr.PC is
mandatory and the Court has no jurisdiction to take cognizance
of any of the offences mentioned therein, unless there is a
complaint in writing of the public servant concerned in terms of
Section 195 Cr.PC, without which the trial for the offence
punishable under Section 188 IPC becomes void ab initio.
17. In this regard, one may refer to State of U.P. Vs
Mata Bhikh case [1994 (4) SCC95], wherein Hon’ble Apex
Court has held as follows:-
“6. The object of this section is to protect persons from
being vexatiously prosecuted upon inadequate materials or
insufficient grounds by person actuated by malice or ill-
will or frivolity of disposition at the instance of private
individuals for the offences specified therein. The
provisions of this section, no doubt, are mandatory and the
Court has no jurisdiction to take cognizance of any of the
offences mentioned therein unless there is a complaint in
writing of ‘the public servant concerned’ as required by
the section without which the trial under Section 188 of
the Penal Code, 1860 becomes void ab initio. See Daulat
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8/15Ram v. State of Punjab [1962 Supp 2 SCR 812]. To say in
other words a written complaint by a public servant
concerned is sine qua non to initiate a criminal proceeding
under Section 188 of the IPC against those who, with the
knowledge that an order has been promulgated by a public
servant directing either ‘to abstain from a certain act, or to
take certain order, with certain property in his possession
or under his management’ disobey that order. Nonetheless,
when the court in its discretion is disinclined to prosecute
the wrongdoers, no private complainant can be allowed to
initiate any criminal proceeding in his individual capacity
as it would be clear from the reading of the section itself
which is to the effect that no court can take cognizance of
any offence punishable under Sections 172 to 188 of the
IPC except on the written complaint of ‘the public servant
concerned’ or of some other public servant to whom he
(the public servant who promulgated that order) is
administratively subordinate.
7. A cursory reading of Section 195(1)(a) makes out that
in case a public servant concerned who has promulgated
an order which has not been obeyed or which has been
disobeyed, does not prefer to give a complaint or refuses
to give a complaint then it is open to the superior public
servant to whom the officer who initially passed the order
is administratively subordinate to prefer a complaint in
respect of the disobedience of the order promulgated by
his subordinate. The word ‘subordinate’ means
administratively subordinate i.e. some other public servant
who is his official superior and under whose
administrative control he works.”
(Emphasis supplied)
18. It would also profitable to refer to C. Muniappan
vs. State of T.N., (2010) 9 SCC 567 wherein Hon’ble Supreme
Court has held as follows:-
“33. Thus, in view of the above, the law can be
summarised to the effect that there must be a complaint by
the public servant whose lawful order has not been
complied with. The complaint must be in writing. The
provisions of Section 195 CrPC are mandatory. Non-
compliance with it would vitiate the prosecution and all
other consequential orders. The court cannot assume the
cognizance of the case without such complaint. In the
absence of such a complaint, the trial and conviction will
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(Emphasis supplied)
19. In Apurva Ghiya v. State of Chhattisgarh, 2020
SCC OnLine Chh 454, High Court of Chhattisgarh after
referring to various judicial precedents in reference to Section
188 IPC and Section 195 Cr.PC, has held as follows:-
“32. From a conspectus of the aforesaid judgments
rendered by their Lordships of the Supreme Court (supra)
and the Madras High Court (supra), it is quite vivid that in
order to prosecute an accused for the offence punishable
under Section 188 of the IPC, it is imperative to undergo
the procedure envisaged under Section 195(1)(a)(i) of the
Code i.e. complaint in writing of public servant concerned
or some other public servant to whom he is subordinate,
otherwise cognizance of offence under Section 188 of the
IPC cannot be taken and if this imperative procedure is
not complied with, the entire prosecution for offence
under Section 188 of the IPC would be rendered void ab
initio, as Section 195 of the Code is an exception to the
general rule contained in Section 190 of the Code wherein
any person can set the law in motion by making
complaint. The provisions of Section 195 of the Code are
mandatory and non-compliance with it will make the
entire process void ab initio and without jurisdiction as
well. As such, since cognizance of offence under Section
188 of the IPC can be taken on the basis of complaint in
writing filed by the public servant concerned within the
meaning of Section 2(d) of the Code, offence under
Section 188 of the IPC being cognizable offence is not
also saved by Explanation appended to Section 2(d) of the
Code, as by Explanation to Section 2(d) of the Code,
report made by police officer after investigation of
noncognizable offence is only to be treated as complaint
and person making the complaint is to be treated as
complainant and police report or FIR is not a complaint
and further, charge-sheet is a report of police officer.
Therefore, the first information report also cannot be
registered under Section 154 of the Code for offence
under Section 188 of the IPC, as registration of FIR after
investigation would culminate into police report under
Section 173(8) of the Code which cannot be taken
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10/15cognizance of by the Magistrate under Section 190 of the
Code, as such registration of FIR for offence under
Section 188 IPC is barred.”
(Emphasis supplied)
20. I also find unable to agree with the submission of
learned APP for the State that in the light of the Lalita Kumari
case (supra), the police is duty bound to register FIR under
Section 154 Cr.PC, if information regarding the commission of
offence punishable under Section 188 IPC is received by it,
because offence under Section 188 IPC is cognizable. Here it is
pertinent to refer to Union of India Vs. Ashok Kumar
Sharma, (2021) 12 SCC 674, wherein Hon’ble Apex Court
was considering the applicability of the principles as laid down
in Lalita Kumari case (supra) with reference to registration of
FIR for offence punishable under the Drugs and Cosmetics Act,
1940. Here, in view of Section 32 of the Act of 1940, dealing
with cognizance of offence and providing similar provisions like
those of Section 195 Cr.PC, Hon’ble Apex Court held that the
principles as laid down in the Lalita Kumari case (supra) could
not be applicable to registration of FIR under the Drugs and
Cosmetics Act, 1940, observing as follows:-
“Impact of Lalita Kumari Vs. State of U.P.
80. In the said case, a Constitution Bench of this Court has
held that registration of an FIR is mandatory under
Section 154CrPC, if the information discloses commission
of a cognizable offence and no preliminary inquiry is
permissible in such a situation. It was further held that a
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whether a cognizable offence is disclosed or not, if the
information received does not disclose a cognizable
offence but indicates the need for such an inquiry. The
Court has also indicated certain cases where a preliminary
inquiry may be conducted, depending on the facts and
circumstances of each case. They include matrimonial
disputes, commercial offences and cases where there is
abnormal delay/laches. This Court also held that the
aforesaid were not exhaustive of all conditions which may
warrant a preliminary inquiry.
81. We would think that this Court was not, in the said
case, considering a case under the Act or cases similar to
those under the Act, and we would think that having
regard to the discussion which we have made and on a
conspectus of the provisions of CrPC and Section 32 of
the Act, the principle laid down in Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] is not attracted when an information is made
before a police officer making out the commission of an
offence under Chapter IV of the Act mandating a
registration of an FIR under Section 154 CrPC.”
21. Similarly in the light of Section 195 Cr.PC, the
principles as laid down in Lalita Kumari case (supra) will not be
applicable to registration of FIR for offence punishable under
Section 188 IPC, though it is cognizable. The competent public
servant is required to file complaint before Magistrate for
prosecution of an accused for offence punishable under Section
188 IPC and only then the Magistrate may take cognizance of
the offence.
22. I also find that even otherwise, no prima facie
case is made out under Section 188 IPC as per the allegation
made in the written report. For offence under Section 188 IPC,
the following ingredients are required to be satisfied:-
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12/15“(a) that there must be an order promulgated by the public
servant;
(b) that such public servant is lawfully empowered to
promulgate it;
(c) that the person with knowledge of such order and
being directed by such order to abstain from doing certain
act or to take certain order with certain property in his
possession and under his management, has disobeyed; and
(d) that such disobedience causes or tends to cause;
(i) obstruction, annoyance or risk of it to any
person lawfully employed; or
(ii) danger to human life, health or safety; or
(iii) a riot or affray.”
23. But from perusal of the written report, it clearly
transpires that there is no reference to the order which has been
promulgated and disobeyed, let alone any other ingredients of
the offence under Section 188 IPC being satisfied.
24. I further find that Section 171C IPC is not a penal
provision. It only defines “undue influence at election”. It is
Section 171F IPC, which provides for punishment for undue
influence or impersonation at an election. But even Section
171F is not attracted as per allegation made in the written report
by the informant. There is no allegation that the petitioner has
threatened or induced or attempted to induce any candidate or
voter. Hence, no prima facie offence is made out even under
Section 171F read with Section 171C IPC.
25. Moreover, I find that the offence punishable under
Section 171F IPC is non-cognizable and hence, as per Section
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155 Cr.PC a police can neither register an FIR, nor investigate
the allegation on its own. As per Section 155 Cr.PC, if any
information is given to any police officer of a police station
regarding the commission of non-cognizable offence, the police
officer is required to refer the informant to the Magistrate. The
police officer is also not authorized to investigate the case
involving non-cognizable offence without the order of the
Magistrate having empowered to try to such case or commit the
case for trial. Section 155 Cr.PC read as follows:-
“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.
(3) Any police officer receiving such order may exercise
the same powers in respect of the investigation (except the
power to arrest without warrant) as an officer in charge of
a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which
at least one is cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the other offences
are non-cognizable.”
(Emphasis Supplied)
26. Hence, in case of Section 171F read with Section
171C IPC, neither FIR is maintainable nor any police report is
sustainable.
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27. I have already discussed that even in case of
Section 188 IPC, a Magistrate is required to take cognizance
only on the complaint of competent public servant and not on
police report in the light of the procedure as provided in Section
195(1)(a) Cr.PC.
28. Hence, impugned order is not sustainable in the
eye of law and hence, liable to be dismissed under Section 482
Cr.PC. The present case is squarely covered by the guidelines as
given in sub paras (1) and (6) of para 102 of State of Haryana
Vs. Bhajan Lal, [1992 Supp (1) SCC 335] by Hon’ble Apex
Court, because neither any offence is prima facie made out,
nor the procedure as adopted is permissible in the law. The
relevant para of Bhajan Lal case (supra) reads as follows:-
“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 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.
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………………………………………………………….
(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
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.
…………. …… ………………………………………….”
(Emphasis Supplied)
29. Accordingly, the present petition is allowed
setting aside the impugned order and quashing the criminal
proceeding arising out of it.
(Jitendra Kumar, J.)
Shoaib/Ramesh-
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