The central legal point established in the judgment is the mandatory requirement of written complaints by public servants for offenses under Sec. 188 of the IPC and the non-cognizable nature of offenses under Sec. 135 of the Maharashtra Police Act.

JUDGMENT

M.S.SONAK , J. - Heard. Shri R.R. Vyas, who appears with Shri Vishwarupe, learned counsel for the applicant, and Shri S.S. Doifode, learned Additional Public Prosecutor for non-applicant/State.

2. Rule. The Rule is returnable forthwith at the request of and with the consent of the learned counsel for the parties.

3. Even otherwise, by way of order dtd. 25/10/2021 we had made it clear that this matter would be disposed of finally at the stage of admission.

4. The applicant seeks the following substantive reliefs in this application:

"(i) Call for the record of FIR No.4190/2016 dtd. 09/11/2016, registered with non-applicant, Sadar Police Station, Dist. Nagpur, and Charge-sheet No.79/2017 filed before learned Judicial Magistrate First Class, Court No.6, Nagpur on 16/08/2017 (Annexure No.I) for commission of offences punishable under Sec. 188 of the Indian Penal Code and 135 of Maharashtra Police Act.

(ii) Upon perusal of same, quash and set aside, FIR No.4190/2016 dtd. 09/11/2016, registered with Non Applicant, Sadar Police Station, Dist. Nagpur, and Charge- sheet No.79/2017 filed before learned Judicial Magistrate First Class, Court No.6, Nagpur on 16/08/2017 (Annexure-I) for commission of offences punishable under Sec. 188 of the Indian Penal Code and 135 of Maharashtra Police Act, so far as applicant is concern, on such terms and conditions, in the interest of justice."

5. The record indicates that on 8/11/2016, one Vikas Thakare, purporting to represent Nagpur City (District) Congress Committee, applied to Senior Police Inspector, Sadar Police Station, Nagpur for permission to hold demonstrations on 9/11/2016 at the Civil Lines, Nagpur.

6. By response dtd. 8/11/2016 itself, the Senior Police Inspector declined such permission. The allegation is that despite the permission being declined, the applicant and 40 to 50 others participated in the demonstrations which took place at Civil Lines on 9/11/2016. Based upon this, an FIR came to be registered against the applicant, and about 40 to 50 alleged demonstrators alleging that they have committed offenses punishable under Sec. 188 of Indian Penal Code (for short "IPC") and Sec. 135 of Maharashtra Police Act, 1951.

7. The investigating agency investigated the allegations and filed Charge-sheet No.79 of 2017 before the learned Judicial Magistrate First Class only against six persons including the present applicant, alleging the commission of offenses under Sec. 188 of IPC and Sec. 135 of Maharashtra Police Act. Aggrieved by this action, the applicant is before us seeking aforesaid relief.

8. Shri Vyas, learned counsel for the applicant submits that having regard to the provisions of Sec. 188 of IPC and Sec. 195 of Code of Criminal Procedure (for short "Cr.P.C."), the learned Magistrate has no power to take cognizance of the offenses alleged, based on the procedure adopted by non- applicant in the present case. He submits that cognizance can be taken only upon a complaint by the public servant whose order is alleged to have been disobeyed or some other public servant to whom he is administratively subordinate. Shri Vyas submits that the offense punishable under Sec. 135 of the Maharashtra Police Act provides for a penalty of a maximum of one-year imprisonment. He, therefore, submits that such offense is non- cognizable and non-applicant had no jurisdiction to register an FIR or investigate into the same. He relied on the decision of the Hon'ble Supreme Court in C. Muniappan and others Vs. State of Tamil Nadu reported in AIR 2010 SC 3718 in support of his submissions.

9. Shri S.S. Doifode, learned Additional Public Prosecutor for non-applicant/State, submits that in this case since the police authorities have themselves filed the charge-sheet and therefore, there is substantial compliance with the provisions of Sec. 195 of Cr.P.C. and there is no serious error in the procedure adopted. He submits that since Sec. 188 is a cognizable offense, there was nothing wrong in clubbing