JUDGMENT :

1. Rule. Mr. Pranav Trivedi, learned Additional Public Prosecutor waives service of notice of rule on behalf of respective parties. Respondent No.2 – original complainant is the Circle Officer, Aslali Division, Office of Mamlatdar, Daskroi, Ahmedabad.

2. The present petition has been filed under Article 226 of the Constitution of India and under section 482 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) for quashing and setting aside the complaint being FIR No.II/325/2017, dated 19.12.2017 registered with Bopal Police Station, Dist.: Ahmedabad for the offences punishable under section 188 of IPC, charge-sheet, Criminal Case No.4708 of 2018 and the proceedings initiated pursuant thereto.

3. The petitioner is arraigned as accused no.3 along with other two accused namely Rajubhai Natvarbhai Patel – accused no.1 and Sureshbhai Narendrabhai Patel – accused no.2. It is alleged in the FIR that Rajubhai Natvarbhai Patel and Sureshbhai Narendrabhai Patel had requested permission to carry out rally, which was rejected by way of communication dated 10.12.2017.

3.1 On 11.12.2017, without taking any permission, the accused persons along with other persons including that of the petitioner had carried out rally in car and motorcycle at Bopal, Guma, Shilaj and Bhadaj area and thereby violated the order promulgated by the Additional District Magistrate. Hence, the impugned FIR came to be lodged on 19.12.2017 with Bopal Police Station, Ahmedabad by respondent no.2 Circle Officer, Aslali Division, office of Mamlatdar, Daskroi, Ahmedabad upon receiving written order from the Mamlatdar of Daskroi after carrying out inquiry about the alleged incident.

3.2 Thereafter, on 14.05.2018, charge-sheet was filed by the investigating officer before the Court of learned Judicial Magistrate, First Class, Ahmedabad. The learned 6th Additional Civil Judge and Judicial Magistrate, First Class, Mirzapur, Ahmedabad has taken cognizance on the basis of the charge-sheet and the case been registered as Criminal Case No.4708 of 2018. Thereafter, it was transferred to the Court of learned 3rd Additional Senior Civil Court, at Ahmedabad in the month of July, 2020.

4. Mr. A.J.Yagnik, learned advocate for the petitioner, stated that the FIR is nothing but an abuse of process of law and is filed with ulterior motive. He submits that in order to take cognizance under Section 188 of IPC, learned Court below must satisfy the criteria of Section 195 of the Cr.P.C., more particularly section 195(1)(a)(i) of the Cr.P.C., and for the satisfying the same, there has to be a complaint by the public servant concerned or by some other public servant to whom he is administratively subordinate. He states that in the present case instead of a complaint, an FIR is filed by the Circle Officer – respondent no.2 at the behest of Mamlatdar and subsequently the charge-sheet came to be submitted before the court below. Mr. Yagnik, therefore, stated that the cognizance taken on the basis of FIR and charge-sheet is itself not maintainable under section 188 of IPC without there being any complaint by the public servant concerned.

4.1 Mr. Yagnik stated that the learned Magistrate has taken cognizance on the basis of the police report and not on the basis of any complaint by the public servant concerned and therefore the trial itself is void-ab-initio, without jurisdiction and deserves to be quashed and set aside. He stated that the person who is authorized to file a complaint is not a good substitute to confer jurisdiction. It is stated by Mr. Yagnik that assuming without admitting that the Mamlatdar had power to sanction Circle Officer – respondent no.2 to register a complaint, but the Circle Officer has not moved any complaint before the learned Court below as envisaged under Section 195 Cr.P.C. and has rather chosen to register an FIR.

4.2 It is stated by Mr. Yagnik that, Section 195 Cr.P.C. does not permit delegation, or else the legislature would have made an express prov