ORDER :

This petition is filed under Section 482 Cr.P.C. for quashing FIR dated 05.05.2013 in Crime No.82/2013 registered by Gobbur police station, Deodurga, Raichur district for the offences punishable under Section 188 IPC and Section 130 of Representation of Peoples Act.

2. The facts leading to this petition are that on the complaint filed by Damodar Dass, who was deployed at a polling booth Nos.66/67 at Masarkal, Deodurga taluk, the respondent police have registered the case. The allegations are that on 05.05.2013 at about 12.30 hours, the petitioner along with his 100 to 150 supporters and followers entered the premises of polling station of Masarkal booth and told the voters to vote BJP and not to Congress. On the basis of the said complaint, respondent police have registered the case. After registering the case, the police have taken up investigation. But, the charge sheet was not filed. During the pendency of this petition, the police have submitted the charge sheet.

3. The learned counsel appearing for the petitioner has strenuously contended that Section 188 IPC is an offence. But, according to Section 195 of Cr.P.C., the Court cannot take cognizance unless a public servant files a private complaint under Section 200 Cr.P.C., therefore, registration of the case under Section 188 IPC by the police is illegal. Though, facts of this case attract the offences alleged, but the technicalities have to be examined by the Court.

4. Per contra, learned High Court Government Pleader submitted that the complainant has been appointed to look after the Assembly Election. After ascertaining that there was a violation of code of conduct, he lodged a complaint and on the basis of the said complaint, investigation has been taken and charge sheet has been filed. Hence, it cannot be held that such proceedings are illegal.

5. As could be seen from the provision of Section 195 of Cr.P.C., it says that:

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

(1) No Court shall take cognizance (a)(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, 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 of some other public servant to whom he is administratively subordinate;

(b) xxx xxx xxx xxx xxx

6. The above said provision clearly creates a statutory bar to the Court for taking cognizance unless the complaint in writing is made by the public servant concerned or some other public servant to whom he is administratively subordinate. In view of the above, the said provision takes away the general power of the Magistrate under Section 190 Cr.P.C.

7. On perusal of the complaint averments and other records, there is no complaint in writing by the official before the jurisdiction Magistrate alleging disobedience to the order duly promulgated by the complainant namely public servant. It is only stated that the petitioner came along with his followers and instructed them to vote for BJP and not to Congress. Thus, the allegations made in the complaint do not attract Section 188 IPC. Since the charge sheet is filed, the petition does not survive for consideration.

8. On the date of registration of the case itself, bar under Section 195 Cr.P.C. was operating as such the police gets no jurisdiction even to register the case under Section 188 IPC. Once the illegality perpetuates into the investigation, such investigation is hit by statutory principles. Then, it cannot be construed as legal proceedings or legal investigation.

9. During the course of arguments, learned counsel for the petitioner submitted that the present petition was filed for quashing FIR. During the pendency of this petition, the charge sheet was filed. Therefore, the charge sheet is required to be