Allowed¶68

Syed Shaker v. The State of Telangana

Telangana HC18 Feb 2025CRLP/2275/2025

Case brief

AI extract

What is this about?

Telangana High Court quashes entire proceedings in SC No.155/2023 against accused; cognizance of S.188 IPC offence without written complaint of public servant barred by S.195(1)(a)(i) Cr.P.C.; same-transaction rule applied per State of Karnataka v. Hemareddy to vitiate cognizance of Ss.272, 273, 269, 328 r/w 34 IPC and 20(2) COTP Act; continuation held abuse of process; petition under S.528 BNSS allowed.

What did the court decide?

Criminal Petition allowed; the proceedings against the petitioner-accused No.1 in S.C.No.155 of 2023 on the file of the II Additional Metropolitan Sessions Judge at Hyderabad are quashed; miscellaneous applications, if any pending, stand closed. ¶68

Syed Shaker Vs The State of Telangana — Telangana HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

¶68

Issue for consideration

Whether the proceedings in S.C.No.155 of 2023 against the petitioner-accused No.1 for offences under Sections 188, 272, 273, 269, 328 r/w 34 IPC and Sec 20(2) of the COTP Act are liable to be quashed, given that cognizance of the Section 188 IPC offence was taken without the written complaint of the public servant concerned as mandated by Section 195(1)(a)(i) Cr.P.C., and whether the allied offences fall with it under the same-transaction rule. +1 more

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Court's answer

Section 195(1)(a)(i) Cr.P.C. bars the Court from taking cognizance of any offence punishable under Section 188 IPC unless there is a written complaint by the public servant concerned for contempt/violation of his lawful orders; since the present crime was registered and cognizance taken on the complaint of the 2nd respondent-de facto complainant, who is not a competent person, the proceedings against the petitioner for the offence under Section 188 IPC are liable to be quashed.

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Ratio / Principle

Following State of Karnataka v. Hemareddy (Supreme Court), where the other alleged offences (Sections 272, 273, 269 and 328 r/w 34 IPC and 20(2) of the COTP Act) formed part of the same transaction as the offence contemplated under Section 195 Cr.P.C., it is not possible to split up the prosecution; accordingly the FIR culminating in taking cognizance of those offences against the petitioner stands vitiated, and continuation of the criminal proceedings against him amounts to abuse of process of law.

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Detailed headnote1 paragraphs

Quashing of proceedings — Criminal Petition under Section 528 BNSS allowed; proceedings in S.C.No.155/2023 (II Additional Metropolitan Sessions Judge, Hyderabad) against petitioner-accused No.1 for offences under Sections 188, 272, 273, 269, 328 r/w 34 IPC and Section 20(2) COTP Act quashed. Held: (i) Section 195(1)(a)(i) Cr.P.C. bars the Court from taking cognizance of a Section 188 IPC offence unless there is a written complaint by the public servant concerned for contempt/violation of his lawful orders; the crime here was registered on the complaint of the de facto complainant, who is not a competent person, so the Section 188 IPC proceedings were liable to be quashed. (ii) Relying on State of Karnataka v. Hemareddy (Supreme Court), offences forming part of the same transaction as a Section 195-barred offence cannot be split up and prosecuted severally; the FIR and cognizance of the allied offences stand vitiated, and continuance of the proceedings amounts to abuse of process of law. Miscellaneous applications closed.

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oF^IELANGANA rN THEHTGH ".".lIB$JffifJsE

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.--uf i ."-- u rsdk'r,r^{H E Elc HrEE Nr H DAY o-f} .^{F-EqSU ARY} TWO THOUSAND^{ANDTWENTYFIVE}

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PRESENT

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THE HONOURABLE^{SMT JUSTICEJUWADI SRIDEVI}

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CRIMINA^{L PETITION NO:2275oF 2025}

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Between:

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Sved Shaker'^{S/o.AbdulRazhak, age.30years, occ.Business,R/o.H.No} 12-1idEln,iiii)n' ruamrat^{xrtt[ina, Asii Nagai'Hvderabad'}

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...PETITION^ER/ACCUSED.l

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AND

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The State of Telangana,^{Rep by its Public Prosecutor,HighCourt fOi the} State of Telangana^HYderabad.

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The Sub-lnspector^{of Police, Tappachabutra Police Station, Hyderabad} District.

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... RESPONDElf,T/COMPLAI^NANT

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Petition under Section 528 of BNSS^{prayingthat in the circumstances} stated in the Memorandum of Grounds^{of Criminal Petition,the High Court may be} pleased to quash the proceedings in SC NO.155 of 2023 on the file of^Hon'blell Additional Metropolitan Sessions Judge at Hyderabad^{for the offencespunishable} under Sections 188,272,273,269,328 rlw 34 IPC and Sec 20(2) of^{COTPA ACT} against the petitioner.

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l.A. NO: 2OF 2025

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Petition under Section 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to direct the respondents / Tappachabutra Police station to release the property l.Baba-120 grms(54 tins), 2.RR Gold Pan Masala-45 Packets(each packet contains 70 pouches), 3. RR Gold Zardha 45 Packets (each packet contains 70 pouches), 4. K-9000-100 Packets (each packet contains 65 pouches), 5. Baba-120 Zardha -150 Packets (each packet contains 58 pouches), 6. Win Cigarette -38 Boxes (each box contains 10 cigarette packets), 7. Paris Cigaratte1 3 Boxes (each box contains 10 cigarette packets), 8. Dunhill-S Boxes(each box contains 10 cigarette packets) all of worth Rs 1,00,000/-, seized in SC No. '155 of 2023 on the file of Hon'ble ll Additional Metropolitan Sessions Judge at r Hyderabad in favour of the petitioner.

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Groun This Petition coming on for hearing,upon perusing the Merr,crandum of MURALIds of Advocate Criminal petition for the and petitionerupon hearing and Sri the Jithender arguments Rao of Sri Veeramallay. BALA Additionat.&lnEli6 pros*ukjr on behatf of the Respondents

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The Court made the foilowing ORDER:

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THE HONOURABLE SMT. JUSTICE JUWADISRIDEVI CRIMINAL PETITION No.2275 ot 2025

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ORBLft

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This Criminal Petition is filed by the^{petitioner-accusedNo.1} to quash the^proceedings against^{him in S.C.No.'155of 2023 on} the file of ll Additional Metropolitan Sessions^{Judge at} Hyderabad, registered for the^{offences underSections188,272'} 273,269 and 328 r/w. 34 of IPC^{and 20(2) ot the Cigarettesand} Other Tobacco Products^{(Prohibitionof Advertisementand} Regulation of Trade and Commerce,^{Production,Supply and} .' Distribution) Act, 2003^(for short^'COTP Act').

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Heard Sri Y.Bala Murali, learned counsel^{for the petitioner-} accused No.1 and Sri Jithender Rao^VeeramalL learned Additional Public Prosecutor appearing^{for the respondentState.}

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Learned counsel for^{petitioner submitsthat though the} petitioner is innocent of the offences alleged against^{him, he has} been falsely implicated in the case.^{He further submits that} Section 195(1Xa)(1) of Cr.P.C. bars^{the Court fromtaking} cognizance of any offence^{punishable underSection 188 of IPC'} unless there is a written complaint^{by public servantconcerned} for contempUviolation of his^lawful orders.^{Hence,he prayed to} quash the proceedings against the^petitioner.

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On the other hand, learned Additional Public t)rosecutor submitted thal the petitioner has also been charged with the offences other than 188 of lPC. Hence, the learned lVlagistrate has rightly laken cognizance of the aforesaid offences against the petitioner, basing on the final report filed by the Police, as such, the proceedings cannot be vitiated and the cognizance taken by the learned [Vlagistrate cannot be said to be one without authority of Law. He further submitted that the truth or otherwise of the allegations levelled against the petitioner can only be krrown after conducting full-fledged trial, and hence, he prayed to dismiss the petition.

¶29

For the sake of convenience, Section 188rof lpC and Section^'195 of Cr.P.C. are extracted hereunder.

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Disobedience to order duly promulgated tty public ssrv6r1 - Whoever, knowing that, by an order prornulgated by a public servant lawfully empowerecl to promulgate such order, he is directed to abstaln from a certain act, or to take. certain order w,ith certain propefty rn his posses sion or under ,\ls management, disobeys such direction, shall, if such dis:obedience causes Io tender to cause obstruction, annoyance or injury, or isk of obstructi<tn, annoyance or injury, to any person lavvft,lly enrployed, be punished with simple imprisonment rctr a tenn 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 ht cause danger to human life, health or safety, cr cal,,ses or tends to cause a riot or affray, shalt be punished with impisonment of either description for a t'erm which may extend to six months, or with fine

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which may^{extend to one thousandrupees' or with} both.

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. f'^ - oi iuOtic lgi. Arosecution^{servants,for for contempt of offencesagainst lavvful public.iusticeaulhonty} and for offences^{relating to documents given in} evidence.^{(1) No Coutlsshalltakecognizance-} tul il^{of a'ny offence punishableunder sections 172} io' i6a^{poti,inclusive)of the lndian Penal Code(45} of 1860), or attemPt to^{commit, such} (ii)of any abetment^{of ,} offence, i;i^{;i' ;ry} or^{ciminatconspira.cv tl *ry!']'^i',il} iff"n"", except^{on the complaintin writing ol me} oublic servant^{concernedor of some otherpuofic} '"iiinl to whom he is administratively subordinate"' (bl(ilof anv offence punishabte^{under any of} lhe tiJiirg i""tions^{of the lndian PenalCode (45 of} 'iaaiili,iriav, sectlons 193 to 196 (both inctusive)' tsg:'boo zo6'to^{ztt (both inclusive)and 228' *h"n} .. tii'n oiin".^{is atleged to havebeen commifted in' or '} in retation^{to, any proceeding in anyCou.rt' or} . ^^ tiilif anv offeice^{descibedin section463'} .or 'oli,itiuirc under section 471, section 475 or^section i\a iiti,i said^{code, when such offence is} lleged 'iroiuna ioiiu" been^{committed in respect of a doiument} or given in^{evidence in a proceedingin any} Court, lii-i1ii'uny or^{criminalconspiracyto commit' *} ?yT!:2 commit,'or^{the abetmentof, any offence spectttedtn} sub-clause^{(i) or sub-clause(ii)'}

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6 Having heard^{both sides and perused the materialon} record, it^{is evident that Section 195(1XaX1)of Cr'P'C' barsthe} Court from^{taking cognizanceof any offence punishableunder} Section^{188 of lPC,unless there is a written complaint by public} servant concerned^{for contempUviolation of his lawful orders'In} the^{present case, basing on the complaintlodgedby the 2nd} respondent-de^{facfo complainant, who is not a competent person'}

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present crime was registered and cognizance was taken by the learne(.. Mag$;trate. Hence, the proceedings against the . -+., petitioner for the offence under Section 188 of IPC are liable to be quashed

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ln the^judgment of Sfate of Karnataka v. Hemareddyl , al paragraph No.8, the Hon'ble Supreme Court held as follows

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" We agree with the view expressed by lhe leamed Judge and hold that rn cases where in lhe ccturse of the same transaction an offence for whic:h nct complaint by a Court is necessary under Sectic'n 1Sl5(1) (b) of the Code of Criminal Procedure and an offsns. for which a complaint of a Court is necess,?rlr' under that sub-section, are committed, it is not possrb/e to split up and hold that the prosecution of the accused for the offences not mentioned tn Section 195(1)(b) of the Code of Criminal Procedure should be upheld".

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(Emphasis supplied)..

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lnsofar as other offences i.e., Sections 272, 273, 269 and 328 rlw. 34 of IPC and 20(2) of the COTP Act, as per the judgment of Hon'ble Supreme Court. in Hemareddy's case (supra), it is clear that if the offences formed part of lhe same transaction of the offences contemplated under Section i95 of Cr.P.C., it is not possible to split up and hold the prosec,ution of the petitioner. Hence, the FIR culminating in taking cognizance of the aforesairl offences against the petitioner stands vitiated and

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'^{atn t98t sc t.t t''}

the continuation of criminal proceedings against the petitioner amoultq,lo ,.?$" _9f^{process of law}

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