The central legal point established in the judgment is that the protection under Section 195 Cr.P.C is available only to public servants and not to accused who are not public servants.

JUDGMENT :

Anil Kshetarpal, J.

Through present petition filed under Section 482 Cr.P.C, petitioners pray for issuing directions/ orders to secure ends of justice and to prevent abuse of the process of law.

2. Fundamental issue which arises for consideration is whether protection under Section 195 Cr.P.C is also available to the accused who are not public servants.

3. Some facts are required to be noticed. FIR has been lodged by officials of Service Tax Department alleging that when they went for search of the premises being run by the accused-petitioners namely M/s World Laparoscopy Hospital Cyber City, DLF Phase II, Gurgaon on 21.3.2017 on the strength of visit authorization issued by their superior officials for the purpose of inquiry regarding payment of service tax, the members of team were manhandled, obstructed and illegally confined. FIR in this regard was registered on 22.3.2017. Investigating agency after completing the investigation filed report under Section 173 Cr.P.C. Learned Trial Court after finding prima facie case, framed charges against the petitioners.

4. This petition has been filed at this stage calling upon this Court to set aside final report, charges framed on the ground that the Judicial Magistrate, First Class could not have taken cognizance as it is in violation of mandatory provision of Section 195 Cr.P.C.

5. At this stage, it would be appropriate to extract Section 195 Cr.P.C, which is reproduced as below:-

"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 by such officer of the Court as that Court may authorise in writing in this behalf, 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 sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whos