Cognizance of offences under Section 188 IPC requires a written complaint from the concerned public servant, and not a police report; failure to adhere to this renders proceedings void.

JUDGMENT :

(JITENDRA KUMAR, J.)

The present petition under Section 482 Cr.PC has been preferred against the impugned order dated 07.04.2016, passed by Sri Sunil Kumar Singh-III, learned A.C.J.M-IV, Madhepura, whereby learned A.C.J.M has taken cognizance of offence punishable under Section 188 /171C of IPC.

2. The relevant facts of the case are that on a written report of Circle Officer-cum-Incharge Officer, Flying Squad, Gamhariya P.S. Case No. 176 of 2015, was lodged on 31.10.2015 for offence punishable under Section 188 /171C of the INDIAN PENAL CODE against the petitioner.

3. As per the written report, on 31.10.2015 at 1:30 PM, the petitioner, a BJP candidate for Bihar General Assembly Election 2015, was doing road show along with his party workers on State highway in Gamhariya market, along with more than ten two-wheeler vehicles and more than two four- wheeler vehicles. Even videography of the occurrence was done by the officer of the Statistic Surveillance Party.

4. I heard learned counsel for the petitioner and learned APP for the state and perused the materials on record.

5. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in this case. He further submits that as per the allegation made in the written report, no case is made out either under Section 188 or under Section 171C of IPC. No reference to any order/proclamation of the State Government, which has been violated by the petitioner, has been made in the written report, nor is any allegation in the written report that the alleged disobedience of the petitioner has caused or tended to cause obstruction, annoyance or injury or risk to any person lawfully employed, nor is any allegation that the alleged disobedience caused or tended to cause danger to human life, health or safety or riot or affray. Hence, Section 188 IPC is not attracted in the alleged facts and circumstances of the case.

6. He also submits that even Section 171C of IPC is not attracted in the alleged facts and circumstances. There is no allegation that the petitioner has interfered or tended to interfere with the free exercise of any electoral right of any voter.

7. He further submits that cognizance of learned Magistrate under Section 188 IPC is also not sustainable in view of Section 195 (1)(a) Cr.PC, which provides that no Court shall take cognizance of any offence punishable under Section 172 to 188, (both inclusive) of INDIAN PENAL CODE , except on the complaint in writing of a public servant concerned or by some other public servant to whom he is administratively subordinate. But in the case on hand, no complaint was filed by the concerned public servant. In stead of complaint, written report was submitted before the police which registered FIR on the basis of the said written report and after investigation charge- sheet was submitted and on the basis of which, cognizance of offence punishable under Section 188 and 171C of IPC was taken by learned Magistrate against the petitioner by the impugned order.

8. However, learned APP for the State defends the impugned order submitting that there is no illegality or infirmity in it and the present petition is liable to be dismissed.

9. To substantiate his submission, he submits that the offence under Section 188 IPC is a cognizable offence and hence, the police has rightly registered FIR and submitted charge-sheet and learned Magi