Point of Law: Section 195 of Cr.P.C. deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this Revision Petition, filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing of FIR No.239 of 2018, dated 26.10.2018, registered under Sections 143 & 188 of the Indian Penal Code (hereinafter to be referred as “IPC”), at Police Station Sadar, Tehsil and District Shimla, H.P. A prayer has also been made to quash and set aside the subsequent proceedings resulting out of the lodging of the said FIR.

2. The case of the petitioner is that at the time when the petition was filed, he was a member of the legislative assembly of the State of Himachal Pradesh from the Shree Naina Devi Jee, Assembly Constituency, district Bilaspur. FIR No.239 of 2018, dated 26.10.2018 came to be registered against the petitioner and six other accused at Police Station Sadar, District Shimla, H.P. at the instance of one Hem Chand, ASI/ I.O. Police Station Sadar, District Mandi, H.P., copy whereof is appended with this petition as Annexure P­1. It was alleged in the FIR that on the said date, ASI Hem Chand alongwith his other colleagues was recruited to perform law and order duty at Rajeev Bhawan, Cart Road, Shimla, where they saw about 250­300 Congress workers led by the Congress Committee leaders. The leaders and workers after crossing the AG Chowk, proceeded towards Police Assistance Room from C.T.O., Mall Road by formulating an unlawful assembly. They raised slogans against the State Government as also Central Government etc. in public place. They formed an unlawful assembly at Mall Road, Shimla, which amounted to violation of provisions of Sections 143 and 188 of IPC. Rukka was sent through Constable Jitender Kumar. Investigation was carried out in the matter by ASI Naseeb Singh of Police Station Sadar, District Shimla, H.P. Statements of witnesses were recorded under Section 161 of Criminal Procedure Code (hereinafter to be referred as “Cr.P.C.”) and after preparation of spot map and post recording of the statements of witnesses, the FIR in issue was lodged against the petitioner and other accused. The petitioner and other accused were formally arrested on 13.11.2018 and released thereafter. After completion of investigation, challan was presented in the Court of learned Chief Judicial Magistrate, Shimla, on 28.11.2020 and it is at said stage that the present petition has been filed seeking quashing of the FIR.

3. Learned counsel for the petitioner has argued that the FIR which has been lodged against the petitioner and other accused is per se not maintainable in the eyes of law as the same has been lodged in violation of the statutory and salutary provisions contained in Section 195 of Cr.P.C.

4. By placing reliance upon Section 195 of Cr.P.C., learned counsel for the petitioner has argued that cognizance of an offence punishable under Section 188 of IPC cannot be taken except in terms of the procedure prescribed in Section 195 of Cr.P.C., but in the present case cognizance has been taken on the basis of the FIR and this vitiates the entire process. Learned counsel has argued that as Section 143 of IPC is there on account of same alleged incident, on the basis of which the petitioner and other accused have been booked under Section 188 of IPC, therefore also the FIR per se is liable to be quashed and aside.

5. Learned Additional Advocate General has submitted that the FIR was lodged on the facts as they stand narrated in the same and as the matter is now pending before learned Trial Trial Court, therefore, the appropriate course available to the petitioner is to raise all these issues before learned Trial Court.

6. I have heard learned counsel for the parties and carefully gone through the petition as well as documents appended therewith.

7. The facts which led to the lodging of the FIR have already been narrated by me hereinabove and the same are not being repeated for the sake of brevity. Suffice it to say that the FIR has been lodged against the petitioner and other acc