Delhi High Court Quashes Proceedings Under S.188 IPC Against Activist, Citing Procedural Lapse

New Delhi: In a significant ruling, the High Court of Delhi has quashed criminal proceedings initiated against social activist Shabnam Hashmi for allegedly violating a prohibitory order under Section 144 of the Code of Criminal Procedure (CrPC) during a protest. The court held that the Metropolitan Magistrate erred in taking cognizance of the offence under Section 188 of the Indian Penal Code (IPC) based on a police charge-sheet (Final Report) instead of a formal written complaint by the concerned public servant, as mandated by law.

The judgment, delivered by the bench of HON'BLE MR. JUSTICE NAVIN CHAWLA on February 7, 2024, underscored the mandatory nature of Section 195(1)(a)(i) of the CrPC, which governs the prosecution of offences against the lawful authority of public servants, including Section 188 IPC.

Case Background

The case originated from FIR No. 0222/2020 registered at Police Station Dwarka South. The FIR was filed based on a social media post ( Tweet ) containing a video allegedly showing Ms. Shabnam Hashmi and others protesting against the Citizen Amendment Act (CAA) in a park in Dwarka on June 3, 2020. The police alleged that the protest violated Prohibitory Order No. 5250-5339/R-ACP Dwarka dated June 1, 2020, issued under Section 144 CrPC by the Assistant Commissioner of Police (ACP) Dwarka, thereby constituting an offence under Section 188 IPC.

Following the investigation, the police filed a Final Report (charge-sheet) under Section 173 CrPC before the Metropolitan Magistrate. The Magistrate took cognizance of the offence based on this charge-sheet via an order dated October 8, 2021, stating there was "sufficient material on record to proceed against the accused."

The Legal Question: Charge-sheet vs. Complaint

The core legal question before the High Court was whether the Magistrate could validly take cognizance of an offence under Section 188 IPC on a police charge-sheet.

The petitioner, Ms. Hashmi , represented by Mr. Soutik Banerjee and Ms. Devika Tulsiani , argued that Section 195 CrPC explicitly bars a court from taking cognizance of an offence under Section 188 IPC except on a "complaint in writing" by the concerned public servant or their administrative superior. They contended that a police charge-sheet does not meet this requirement. They further submitted that a document titled "permission under Section 195 CrPC" filed along with the charge-sheet by the ACP was not a valid complaint as defined under Section 2(d) CrPC and cited previous judgments of the Delhi High Court in Vasudev v. State (1984) and Santokh Singh Chawla v. State NCT of Delhi (2023) in support of their arguments.

The respondent (State), represented by Mr. Aman Usman , APP, countered that the Magistrate could take cognizance not just of the Final Report but also the documents attached. They argued that the "permission" document from the ACP filed with the charge-sheet satisfied the requirement of a complaint under Section 195 CrPC and that cognizance was, therefore, rightly taken. They relied on the judgment in Decathlon Sports India Pvt. Ltd. v. State of NCT of Delhi (2022) .

Court's Analysis and Reasoning

Justice Navin Chawla meticulously examined Section 195(1)(a)(i) CrPC, confirming that it imposes a strict bar on the court's power to take cognizance of Section 188 IPC offences unless initiated by a proper complaint from the public servant.

The court concurred with the petitioner, citing and relying heavily on the precedents in Vasudev (Supra) and Santokh Singh Chawla (Supra) . It noted that both judgments held that filing a Final Report (charge-sheet) is impermissible for taking cognizance under Section 188 IPC and that documents merely granting "permission" or forwarding existing police complaints do not qualify as formal complaints under Section 195 CrPC addressed to the court.

Analysing the "permission under Section 195 CrPC" document filed by the ACP in the present case, the court found:

> "A reading of the above would clearly show that the above document is not a Complaint as defined by Section 2(d) CrPC. It was, in fact, in the nature of a permission given by the ACP for prosecution of the petitioner and for seeking exemption from his own personal appearance in the Court."

The court reiterated that such a document does not satisfy the legal requirements of a complaint under Section 195 CrPC, consistent with the findings in the cited judgments.

The court also distinguished the Decathlon Sports judgment relied upon by the prosecution, clarifying that while Decathlon Sports affirmed that cognizance without a proper complaint is bad and liable to be quashed, it primarily held that the FIR itself could not be quashed on this ground because the bar under Section 195 CrPC applies to the court taking cognizance , not the police registering an FIR or conducting an investigation. Since the challenge in the present case was specifically to the cognizance order based on the charge-sheet, Decathlon Sports did not support the prosecution's stand.

The Ruling and Implications

Based on its analysis, the Delhi High Court held that the Metropolitan Magistrate's order taking cognizance of the offence under Section 188 IPC based on the Final Report was clearly impermissible due to non-compliance with Section 195 CrPC.

The court, therefore, quashed the order dated October 8, 2021 , passed by the Metropolitan Magistrate and all consequential proceedings emanating therefrom.

However, the court clarified that its order does not prevent the authorities from initiating fresh proceedings. It stated:

> "However, it is made clear that the respondent shall be at liberty to file a fresh complaint, if so advised. In case such complaint is filed, the same would be considered in accordance with law."

This ruling reaffirms the critical procedural requirement under Section 195 CrPC for prosecuting offences like disobedience to public servants' orders, emphasizing that technical compliance with the law is essential for valid legal proceedings. While the FIR itself remains valid, the current case based on the improperly taken cognizance stands terminated. A new case would require the public servant to file a proper complaint in writing before the Magistrate.