ORDER :

In the instant petition, order dated 7.12.2018 passed by learned Judicial Magistrate First Class, Court No. VI, Shimla in Case No. 429 of 2018, has been assailed by petitioners, whereby on the basis of final report submitted by police under Section 173 of Code of Criminal Procedure (in short ‘Cr.PC), cognizance has been taken by learned Judicial Magistrate First Class against the petitioners for an offence alleged to have been committed under Section 188 of IPC read with Section 34 IPC.

2. It is the case of prosecution that on 15.7.2018, on the basis of statement of Smt. Usha Sharma, complainant, recorded by Investigating Officer, a case under Section 188 read with Section 34 IPC was registered by police for violation of order passed by Municipal Corporation Shimla, restraining the petitioners from carrying out construction and repair of building.

3. Learned counsel for petitioners has submitted that in view of provisions of Section 195 of Cr.P.C., cognizance of offence committed under Section 188 of IPC can only be taken on the basis of complaint, made in writing, of public servant concerned or some other public servant administratively superior to him, whereas, in present case, neither the public servant concerned, who had issued the order, nor any other officer superior to him, has made any complaint either to police or to the Court. Therefore, he has prayed for quashing the FIR as well as proceedings in reference in this case.

4. Learned counsel for petitioners, to substantiate his plea, has placed reliance upon Daulat Ram vs. State of Punjab, reported in AIR 1962 SC 1206; and C. Muniappan and others vs. State of Tamil Nadu, reported in (2010)9 SCC 567.

5. 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 any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

(ii) of any abetment of, or attempt to commit, such offence, or

(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) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or s