Allowed

Dr. Hargovind Bhargava and 3 Ors. v. State of U.P.

Allahabad HC13 Jul 2022/445/2021

Case brief

AI extract

What is this about?

An appeal filed by MLAs convicted under Section 188 IPC for violating a prohibitory order. The High Court allowed the appeal, holding that the conviction was void due to non-prosecution of the mandatory prohibitory order and lack of a required written complaint under Section 195 Cr.P.C.

What did the court decide?

The impugned judgment and order dated 3.3.2021 convicting the appellants is set aside.

Dr. Hargovind Bhargava and 3 Ors. Vs State… — Civil Procedure and Limitation | Allahabad HC (2022)

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Court No. - 10

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Case :- CRIMINAL APPEAL No. - 445 of 2021

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Appellant :- Dr. Hargovind Bhargava And 3 Ors. Respondent :- State of U.P. Counsel for Appellant :- Ishan Baghel,Sajeet Singh Counsel for Respondent :- G.A.

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Hon'ble Dinesh Kumar Singh, J.

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The present appeal under Section 374(2) Cr.P.C. has been filed against the judgment and order dated 3.3.2021 passed by the Additional Sessions Judge/Fast Track Court (OAW)/Special Judge (MP/MLA), Sitapur in Special Session Trial No.190 of 2017, arising out of Crime No.85 of 2017, under Section 188 IPC, Police Station Sidhauli, District Sitapur, whereby convicting and sentencing the appellants for offence under Section 188 IPC with simple imprisonment of ten days with fine of Rs.200/- each and in default of payment of fine, further sentence of one day simple imprisonment.

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Appellant no.1 is former Member of Legislative Assembly. He was contesting the election for Uttar Pradesh Legislative Assembly, which was held in February-March, 2017.

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The prosecution case, in brief, is that on 10.2.2017 at around 9 PM, appellant no.1, who was the candidate for Sidhauli Vidhan Sabha Constituency from Bahujan Samaj Party, was taking out procession along with his supporters. Sub-Inspector, Sachin Kumar Singh reached to the Village Gadiya Hasanpur and found that appellant no.1 along with appellant nos.2, 3 and 4, his supporters and several others in five four wheelers vehicles were taking out the procession and appealing the votes in his favour. It was further said that neither any permission was sought for taking out the procession nor the appellants would show any such permission. It was further said that appellant no.1 and his supporters had violated the prohibitory order

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issued under Section 144 Cr.P.C. and they had committed the offence under Section 188 IPC.

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On the basis of the aforesaid written complaint, an FIR at Case Crime No.85 of 2017 came to be registered under Section 188 IPC at Police station Sidhauli, District Sitapur.

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The investigation of the said offence was carried out by the Sub-Inspector, Satrughan Yadav, who after conducting the investigation, filed charge sheet against the appellants under Section 188 IPC. After taking cognizance, the appellants were summoned and they were tried for offence under Section 188 IPC. The prosecution to support its case, proved the complaint, cite map, charge sheet, FIR, carbon copy of the GD present in the court and also examined Sub-Inspector, Sachin Kumar Singh, the complainant as P.W.-1, Sub-Inspector, Satrughan Yadav, as P.W.-2 and Mohd. Harun as P.W.-3 and Sub-Inspector, Virendra Singh was examined as C.W.-1.

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Statement of the accused-appellants was recorded under Section 313 Cr.P.C., in which they denied any such incident. The trial court, however, after considering the evidence, found charge proved against the appellants and held that the accusedappellants and others on 10.2.2017 at around 9 PM in violation of the prohibitory order issued under Section 144 Cr.P.C., took out the procession in Village Gadiya Hasanpur and they are guilty for offence under Section 188 IPC. In view thereof, they have been convicted and sentenced as mentioned above.

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Sri I.B. Singh, learned Senior Advocate, assisted by Sri Sajeet Kumar Singh, learned counsel for the appellants has submitted that under Section 195 Cr.P.C. there is a complete bar for taking cognizance of any offence punishable under Sections 172 to 188 of IPC except on a compliant in wiring of public servant concerned or of some other public servant to whom he

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is administratively subordinate. He has further submitted that no FIR can be lodged for an offence under Section 188 IPC, and even if the FIR is lodged and the charge sheet is filed, cognizance cannot be taken on the said charge sheet as there is an absolute bar for taking cognizance for an offence under Section 188 IPC except on a written complaint by a public servant concerned or some other public servant to whom he is administratively subordinate. He has also submitted that in the present case, cognizance was taken on the charge sheet and not on a written compliant of a public servant concerned as provided under Section 195 Cr.P.C. Submission is that lodging of the FIR, filing of the charge sheet and taking cognizance on the charge sheet are completely void ab initio as no cognizance could have been taken by the learned trial court on the said charge sheet, which was filed for alleged offence under Section 188 IPC against the appellants.

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Learned Senior Advocate has also submitted that if the order of cognizance itself was void ab initio , further proceedings would be non est and, therefore, the impugned judgment and order is also void ab initio and is liable to be set aside. He has further submitted that the prosecution even otherwise failed to establish the charge. It was the duty of the prosecution to bring on record the prohibitory order allegedly issued under Section 144 Cr.P.C.. The prosecution never produced the prohibitory order issued by the competent authority imposing Section 144 Cr.P.C. in the area where the procession allegedly was carried out by the appellants and others. He has also submitted that the offence is otherwise not proved and, therefore, the impugned judgment of order passed by the learned trial court is liable to be set aside.

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On the other hand, Sri Ashwani Kumar Singh, learned AGA has submitted that charge against the appellants has been

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proved on the basis of the evidence led by the prosecution. Three witnesses who deposed in favour of the prosecution, have clearly gave the evidence regarding violation of the prohibitory order by the appellants on 10.2.2017 and they took out the procession in large number without there being any permission to take out the procession. He, therefore, submits that the appellants had clearly violated the prohibitory order issued under Section 144 Cr.P.C. and, therefore, the learned trial court has rightly convicted them for offence under Section 188 IPC. However, in respect of the legal position that for an offence under Section 188 IPC, there must be a complaint of public servant concerned whose lawful order has been violated and no cognizance can be taken otherwise than on a complaint of the public servant concerned, he has not been able to dispute the aforesaid legal position.

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I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record.

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It is not in dispute that the prosecution did not bring on rerecord the prohibitory order issued by the concerned Magistrate/Executive Officer and no such order was proved by the prosecution, which was allegedly violated by the appellants for which they were charge-sheeted for offence under Section 188 IPC. If the prosecution failed to bring on record the basic document to establish the charge, in my view the trial court failed to consider this aspect while convicting the appellants.

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In respect of other submission that under Section 195 Cr.P.C. there is a complete bar for taking cognizance of any offence under Section 188 Cr.P.C. except on a written complaint by the public servant concerned whose lawful order was allegedly violated, there was no complaint in writing by the concerned public servant. In the present case, no such

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complaint had never been filed. In such a eventuality, I am also of the view that it was not permissible to the trial court to frame charge under Section 188 IPC. Non-compliance of the provisions of Section 195 Cr.P.C. would vitiate the prosecution and other consequential order. The court could not have taken cognizance of the case for an offence under Section 188 IPC without a complaint by the public servant whose lawful order was allegedly violated by the appellants. In absence of such a complaint, the trial and conviction would be void an initio being without jurisdiction. Therefore, the trial court has erred in convicting and sentencing the appellants for an offence under Section 188 IPC, which deserved to set aside.

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Thus, the appeal is allowed and the impugned judgment and order dated 3.3.2021 passed by the Additional Sessions Judge/Fast Track Court (OAW)/Special Judge (MP/MLA), Sitapur in Special Session Trial No.190 of 2017, arising out of Crime No.85 of 2017, under Section 188 IPC, Police Station Sidhauli, District Sitapur is hereby set aside.

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Order Date :- 13.7.2022

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Rao/-

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Digitally signed by CHEBROLU SRINIVASA RAO Date: 2022.07.25 19:17:47 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Dr. Hargovind Bhargava and 3 Ors. v. State of U.P.

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Dr. Hargovind Bhargava and 3 Ors. v. State of U.P.

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