Allowed

Saleem Ahmad and Another v. State of U.P. Thru. Addl. Prin. Secy. Home Deptt. Lko. and Another

Allahabad HC20 Nov 2024A482/10155/2024

Case brief

AI extract

What is this about?

The Allahabad High Court allowed an application under CrPC Section 482 to quash criminal proceedings under IPC Sections 147 and 188. The court held that Section 195 CrPC bars cognizance of an offence under Section 188 IPC without a written complaint by the public servant or their subordinate, and that no rioting was alleged against the applicant.

What did the court decide?

The entire proceedings of Criminal Case No. 2483 of 2021 were quashed in respect of the appellants.

Saleem Ahmad and Another vs State of U.P. Thru. Addl… — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:76434

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Court No. - 12

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Case :- APPLICATION U/S 482 No. - 10155 of 2024

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Applicant :- Saleem Ahmad And Another Opposite Party :- State Of U.P. Thru. Addl. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Ajmal Khan,Ambrish Kumar Dubey,Juned Khan,Parvez Khan Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Lavania,J.

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1. Heard.

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By means of this petition filed under Section 482 Cr.P.C., the petitioner has prayed the following reliefs:-

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"For the facts, reasons and circumstances stated in the accompanying affidavit, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the proceeding of Criminal Case No.- 2483/2021, State Vs Israr Ahmad and others, arising out of Case Crime No. 1051/2019, u/s 147, 188, I.P.C., Police Station- Kotwali Nagar, District- Pratapgarh, pending in the Court of Learned Chief Judicial Magistrate, Pratapgarh, as well as Charge-Sheet dated 16/02/2020 and Summoning order dated 22/01/2021, in the interest of justice.

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It is further prayed that proceeding of Criminal Case No.- 2483/2021, State Vs Israr Ahmad and others, arising out of Case Crime No.- 1051/2019, under section- 147, 188, I.P.C., Police StationKotwali Nagar, District- Pratapgarh, pending in the Court of Learned Chief Judicial Magistrate, Pratapgarh, may kindly be stayed during the pendency of this petition."

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Vide order dated 12.02.2024, this Court allowed the Application U/s 482 No. 1192 of 2024 filed by co-accused Israr Ahmad and quashed the criminal proceedings initiated against the co-accused. The relevant portion of the order dated 12.02.2024 reads as under:-

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"Attention has been drawn towards the impugned FIR wherein the FIR has been lodged under Sections 147 & 188 IPC. Sri Javed Khan has stated that none of the ingredients of Section 147 IPC is made out against the petitioner inasmuch as Section 147 IPC clearly indicates that whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both. He has further submitted that offence of rioting is defined under Section 146 IPC, which provides that whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. He has submitted that there is no such allegation against the petitioner and as per the allegation of the FIR, the petitioner and five named and 40-50 unknown persons were protesting during imposing of proclamation under Section 144 Cr.P.C. However, no allegations of using force or violence against public or public servant have been levelled against the petitioner.

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So far as imposing of Section 188 IPC is concerned, learned counsel for the petitioner has drawn attention of this Court towards Section 195 Cr.P.C., which clearly bars the Courts to take cognizance of an offence under Section 188 IPC unless such complaint in writing is lodged by the public servant or by some other public servant to whom he is administrative subordinate. Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.7 of the petition, which is a judgment and order dated 03.01.2024 passed by this Court in Application U/S 482 No.12525 of 2023, Israr Ahmad Vs. State of U.P. and Another , and in more or less similar and identical circumstances, such petition was allowed. In the order dated 03.01.2024 (supra), law on the subject has been explained referring various dictums of the Apex Court and other High Courts. Para-5 and para-8 of the judgment dated 03.01.2024 (supra) are being reproduced herein below:-

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"5. Attention has been drawn towards the judgment and order dated 18.06.2021 passed by Karnataka High Court in Writ Petition No. 13328 of 2018(GM-RES), Sri Rajashekharananda Swamiji and Another Vs. The State of Karnataka , referring para nos. 7, 8, 9,10 and 11 which read as under:

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"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:

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"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

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(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, 1860 (45 of 1860); or

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(ii) of any abetment of, or attempt to commit, such offence; or

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(iii) of any criminal conspiracy to commit such offence,

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except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

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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.

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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.

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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. Hemareddy [(1981) 2 SCC 185], the Hon'ble Supreme Court held as follows:

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"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 accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

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(Emphasis supplied)

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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.

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The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No. 3660/2016 are hereby quashed."

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(Emphasis supplied)

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Learned counsel for the petitioner has also drawn attention of this Court towards judgment of Apex Court rendered in the case of D.K. Rajendran and Ors. etc. etc. Vs. State of T.N., reported in AIR 2010 SC 3718, referring Para 25 which reads as under:

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"25. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the

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cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."

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(Emphasis supplied)

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Learned AGA has stated that the petitioner is in habit of protesting with so many persons when there is any proclamation in the town in question. He has further submitted that Annexure No.7 of the petition is an order passed in the case of the petitioner itself and there is one more case in the similar and identical circumstances against which the petitioner filed petition under Section 482 Cr.P.C. wherein the judgment has been reserved and the order has not been pronounced. So far as the legal submission of the learned counsel for the petitioner is that the cognizance under Section 188 IPC may not be taken by the Court if such complaint has not been filed by the administrative authority, who has issued such proclamation or by any authority subordinate to him issued such proclamation in view of Section 195 Cr.P.C. and in the present case, the FIR has been lodged by the Sub Inspector of the police station, not by the Administrative Magistrate, any appropriate order may be passed by this Court.

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Be that as it may, since the impugned FIR has been lodged by the Sub Inspector of the police station, not by the Administrative Magistrate, who has issued proclamation or any subordinate Administrative Officer on behalf of him, therefore, the Court concerned may not take cognizance of the offence under Section 188 IPC in view of the specific bar so imposed under Section 195 Cr.P.C. So far as the allegations of the FIR are concerned, prima facie it appears that the offence under Section 147 IPC does not make out. Therefore, in view of the above facts and circumstances of the issue in question and also having regard the dictum of the Apex Court in re; D.K. Rajendran (supra) and also in agreement with the judgment of Karnataka High Court in re; Sri Rajashekharananda Swamiji (supra), the present petition filed under Section 482 Cr.P.C. is allowed. The entire proceedings of Criminal Case No.2483 of 2021 (supra) are hereby quashed in respect of the present petitioner."

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Taking note of the facts of the present case as also that the case of the applicants is similar to the case of the co-accused Israr, this Court is of the view that the application is liable to be allowed. Accordingly, the present petition filed under Section 482 Cr.P.C. is allowed . Consequently, the entire proceedings of Criminal Case No.2483 of 2021 (supra) are hereby quashed in respect of the present applicants.

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Order Date :- 20.11.2024 Jyoti/-

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Digitally signed by :- JYOTI RAJWANI High Court of Judicature at Allahabad, Lucknow Bench

Saleem Ahmad and Another v. State of U.P. Thru. Addl. Prin. Secy. Home Deptt. Lko. and Another

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Saleem Ahmad and Another v. State of U.P. Thru. Addl. Prin. Secy. Home Deptt. Lko. and Another

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