The importance of determining the maintainability of proceedings before proceeding to decide the case on merits, as per the provisions of Section 195 of Cr.P.C.

Sandeep Sharma, J.

By way of instant petition filed under Section 482 of the Code of Criminal Procedure, a prayer has been made on behalf of the petitioners-accused (hereinafter referred to as the accused) for quashing of the FIR No. 259 of 2013, dated 22.11.2013, under Sections 188 and 147 of IPC registered at Police Station, Sadar District Chamba, H.P., summoning orders dated 18.12.2013 and further proceedings in Criminal Case No. 2097 of 2013, pending adjudication before the learned Chief Judicial Magistrate, Chamba, District Chamba, H.P.

2. Briefly stated facts as emerge from the record are that one Sh. Vipan Khanna filed a civil suit against one Shri Narender Kumar, in the court of learned Civil Judge (Senior Division), Chamba, for declaration and permanent prohibitory injunction. Learned trial Court passed ex-parte ad interim order against Sh. Narender Kumar, who being aggrieved with the aforesaid order, preferred an appeal in the court of learned District Judge, Chamba, however, fact remains that same was dismissed on 18.11.2013. It also emerge from the record that being aggrieved with rejection of his appeal, aforesaid Sh. Narender Kumar, approached this Court by way of CMPMO No.4216 of 2013. This Court, vide judgment dated 27.11.2013 (Annexure P-1) set-aside the order of ad interim injunction and directed the learned court below to decide the matter.

3. During the pendency of the proceedings before learned court below, Sh. Vipin Khanna moved an application before the SDM seeking police assistance for removal of debris and reconstruction of property under dispute. The Superintendent of Police, Chamba as per direction issued by the SDM, provided police assistance to Sh. Vipin Khanna. However, when police officers went on the spot on 22.11.2013 alongwith Sh. Vipin Khanna, who had also taken JCB for removing the debris from the disputed suit, they were allegedly obstructed by the petitioners. As per case of the prosecution, present petitioners despite having been informed with regard to the order passed by the authorities in terms of the order passed by the learned District Judge, Chamba, continued to obstruct the police officials on the site from implementing the Court order. In the aforesaid background, FIR as mentioned above came to be registered against the present petitioners. Police after completion of the investigation, presented the challan in the competent court of law i.e. Annexure P-2.

4. Learned trial Court taking cognizance of the offence allegedly committed by the petitioners, summoned the present petitioners by way summoning orders (Annexure P-3). Being aggrieved with the issuance of aforesaid summoning order, present petition came to be filed before this Court.

5. Mr. Nimish Gupta, learned counsel representing the petitioners, while inviting attention of this Court to the summoning orders having been issued by the learned trial court, contended that proceedings, if any, initiated against the petitioners pursuant to the FIR lodged under Section 188 and 147, of IPC are not maintainable before the court below as such same deserve to be quashed and setaside. Learned counsel representing the petitioners further contended that proceedings, if any, under Section 188 of IPC could only be initiated on the written complaint, if any, of the public servant concerned, whose orders were allegedly disobeyed by the petitioner. Bare perusal of Section 195 Cr.P.C clearly suggest that no court shall take cognizance of any offences punishable under section 172 to 188 of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Learned counsel further contended that since in the instant case allegation of prosecution is that the petitioners despite having been informed with regard to passing of order by the court, obstructed the police officials to carry out demolition on the disputed suit, action, if any, for disobedience of orde