IMPORTANT POINT
A notice issued under Sec. 149 of Cr.P.C. does not constitute an 'order duly promulgated' under Sec. 188 of IPC, and cognizance of offences under Sec. 188 IPC requires a written complaint from the concerned public servant as per Sec. 195(1)(a) of Cr.P.C.

JUDGMENT/ORDER

SHARMILA U.DESHMUKH, J. - By this application filed under Sec. 482 of Cr.P.C., the Applicant seeks quashing of the proceeding bearing SCC No. 41 of 2011 pending before the learned Judicial Magistrate, First Class, 3rd Court, Kalyan arising out of CR. No. II/94/2010 registered with Dombivali Police Station.

2. Heard Mr. Sayaji D. Nangre, learned Advocate for the Applicant and learned APP for the Respondent-State. Perused record.

3. CR. No. II/94/2010 came to be registered with the Dombivali Police Station at the instance of the Shri. Laxmikant Vasudev - Assistant Police Inspector, for the offence punishable under Sec. 188 of Indian Penal Code.

4. The case of the prosecution as spelt out from the FIR is that, in the year 2010 the municipal elections were scheduled for Kalyan Dombivali Municipal Corporation and the Election Commission of Maharashtra had imposed Code of Conduct by Order dtd. 23/9/2010 and the campaigning was to cease from 10.00 p.m. of 29/10/2010. That, Circular dtd. 9/4/2010, was issued by the Election Commission which provided that, any leader/worker or any other person belonging to the political parties who have entered the local jurisdiction of Kalyan Dombivali Municipal Corporation from outside for campaigning, shall not stay within the local jurisdiction after the time period for campaigning is over. That, as per Sec. 126 of the Representation of People Act, 1951, prior to 48 hours of the commencement of polling, no person shall convene, hold, attend, join or address any public meeting or procession in any polling area.

4.1. It is alleged that, as per the circular dtd. 9/10/2010 issued by the Election Commission of Maharashtra, the Deputy Commissioner of Police, Division-3, Kalyan had issued notice dtd. 27/10/2010 under Sec. 149 of Cr.P.C. to the Applicant directing that, the leader/worker or any other person belonging to the political party or connected with political rally from outside for campaigning shall not stay within the local jurisdiction of Kalyan Dombivali Municipal Corporation or should not visit the office of the political party, temple, hotel, lodge or guesthouse etc. for any reason, failing which, legal action will be taken for breach of Code of Conduct under Sec. 126 of Representation of Peoples Act, 1951. That the Complainant along with senior PI Shri. R. D. Shinde and Police Constable Shri. Sawant visited Block No. 603, Manjunath Tower, VP Road, Dombivali (East) where the Applicant was staying, for the purpose of effecting service of the notice under Sec. 149 of Cr.P.C. The notice was sought to be served on 29/10/2010 at 10.00 p.m. however, the Applicant refused to accept the said notice stating that, he would not accept the service today and that the service would be accepted tomorrow. That as the Applicant refused to accept service of the notice, the notice came to be pasted on the outer door of the premises where the Applicant was staying and a noting to that effect was made in the station diary. The allegation is that despite issuing notice to the Applicant under Sec. 149 of Cr.P.C, the Applicant continued to reside within the jurisdiction of Kalyan Dombivali Municipal Corporation till 30/10/2010 till 2.00 p.m. and has thereby committed an offence under Sec. 188 of Indian Penal Code("IPC") .

5. Mr. Nangre, learned Advocate for the Applicant has canvassed two submissions for consideration of this Court. Firstly, that notice under Sec. 149 of Cr.P.C is not an order promulgated within the meaning of Sec. 188 of IPC and secondly, that, the FIR could not have been registered for the offence under Sec. 188 of IPC in view of the bar contained in Sec. 195 (1)(a) of Cr.P.C. According to him, a plain reading of the definition of the complaint under Sec. 2(d) of Cr.P.C. indicates that, the same does not include a police report. Alternatively, he would submit that, the allegations in the FIR taken as it is does not satisfy the second part of Sec. 188 of IPC. In support of his submissions