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IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJEEV SACHDEVA, J.
Mohan Kukreja – Petitioner
Versus
The State Govt. of NCT of Delhi and Another – Respondents
Crl. M.C. No. 662 of 2018
Decided On : 08-01-2019
Criminal Procedure Code - Cognizance - Section 188 Indian Penal Code, 1860 - Section 195 Criminal Procedure Code, 1973 - [Section 188 IPC, Section 195 Cr.P.C.] - The court discussed the provisions of Section 195 Cr.P.C. and its mandatory nature, emphasizing that no court can take cognizance of an offence under Section 188 IPC except on a complaint in writing of the public servant concerned. The court highlighted that non-compliance with Section 195 Cr.P.C. vitiates the entire trial and renders it void ab initio, as established in previous judgments. The court concluded that the trial court erred in taking cognizance of the offence under Section 188 IPC, and the impugned orders were quashed.
Fact of the Case:
The petitioner challenged the orders of the Trial Court taking cognizance of the offence under Section 188 IPC, contending that it was done without a complaint satisfying the requirements of Section 195 Cr.P.C.
Finding of the Court:
The court found that the Trial Court erred in taking cognizance without a valid complaint as required by Section 195 Cr.P.C., rendering the entire proceedings void ab initio.
Issues: The issues revolved around the validity of the cognizance taken by the Trial Court under Section 188 IPC without a complaint satisfying the requirements of Section 195 Cr.P.C.
Ratio Decidendi: The court held that non-compliance with the mandatory provisions of Section 195 Cr.P.C. vitiates the trial and renders it void ab initio, as established in previous judgments.
Final Decision: The impugned orders taking cognizance of the offence under Section 188 IPC were quashed, and the petition was allowed.
SANJEEV SACHDEVA, J.
CRL. M.C. 662/2018 & CRL. M.A. 2398/2018 (stay), CRL. M.A. 2400/2018 (seeking permission to file additional documents)
1. Petitioner impugns orders dated 09.12.2016 and 14.11.2017 of the Trial Court, whereby, the Trial Court has taken cognizance of the offence under Section 188 Indian Penal Code, 1860.
2. Learned counsel for the petitioner submits that in terms of Section 195 Criminal Procedure Code, 1973 (Cr.P.C.) no Court can take cognizance of an offence under Section 188 IPC except on a complaint of the public servant concerned.
3. It is contended that the Trial Court erred in taking cognizance on 09.12.2016 and erred in not noticing the fact that no complaint satisfying the requirements of Section 2(d) of Cr.P.C. had been filed and cognizance was taken on a police report. It is further contended that, subsequently, a complaint under Section 195 Cr.P.C. was filed on 05.05.2017. However, the Trial Court without following the procedure prescribed took cognizance of the supplementary charge-sheet.
4. Brief facts leading to the present petition are that the petitioner was having a licence of “M Cinemas” (earlier called Sapna Cinema). An inspection was carried out by respondent No. 2-ADM/CEO, District Disaster Management Authority and certain alleged shortcomings were identified. The premises were directed to be closed for entry for visitors.
5. On the alleged failure of the petitioner to comply with the directions and to rectify the shortcomings, a complaint was filed by the respondent No. 2 with the SHO, Police Station Amar Colony on 19.02.2016 under Section 188 IPC. Based on the complaint, an FIR was registered on 26.05.2016. Consequent to the registration of the FIR, final report/charge-sheet was filed on 22.11.2016. Based on the final report, cognizance was taken by the Magistrate by the impugned order dated 09.12.2016 and summons were issued.
6. By the impugned order dated 14.11.2017, the Trial Court was of the view that a written complaint had been given on 19.02.2016 by Respondent No. 2 - the ADM/CEO, District Disaster Management Authority, which fell within the definition of complaint given by a public servant and as such, was of the view that cognizance had been correctly taken and thereafter framed notice under Section 251 Cr.P.C. against the petitioner for the offence under Section 188 IPC.
7. Section 195 Cr.P.C. reads as under:-
“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 an offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860).
(ii) of any abetment of, or attempt to commit, such offence.
(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)............”
8. Under Section 195 Cr.P.C. no Court can take cognizance of an offence punishable under the sections enumerated therein (including Section 188 IPC) except on a compliant in writing of the public servant. Section 195 Cr.P.C. has been held to be mandatory and contravention of which vitiates the entire trial being without jurisdiction and void ab initio (Daulat Ram vs. State of Punjab, (1962) Supp. 2 SCR 812, State of U.P. vs. Mata Bhikh, (1994) 4 SCC 95, C. Muniappan vs. State of Tamil Nadu, (2010) 9 SCC 567 and Saloni Arora vs. State (NCT of Delhi), (2017) 3 SCC 286).
9. A complaint has been defined under Section 2(d) of Cr.P.C. as under:-
“2(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation – A report made by a police officer in a case which discloses, after investigation, the commission of an non-
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