IMPORTANT POINT
Cognizance for offences under IPC Section 188 must be based on a written complaint from a public servant, and failure to comply with this requirement invalidates the proceedings.

JUDGMENT :

Harkesh Manuja J.

By way of present petition filed under Section 482 of the Code of Criminal Procedure, 1973, prayer has been made for quashing of FIR No.04, dated 07.01.2022, registered at Police Station Central Sector 17, Chandigarh for an offence punishable under Section 188 IPC along with order dated 29.03.2023 passed by the Court of Chief Judicial Magistrate, Chandigarh, convicting/passing order of sentence against the petitioners on having been pleaded guilty.

2. The petitioners were arrayed as accused in FIR No.04, dated 07.01.2022, registered at Police Station Central Sector 17, District Chandigarh, at the instance of SI Vivek Kumar regarding the alleged violation of an order dated 15.11.2021 under Section 144 Cr.P.C. passed by the concerned District Magistrate, resulting into commission of an offence under Section 188 IPC.

3. Investigation in the aforementioned FIR was concluded and challan was filed against the petitioners on 29.03.2023. On the same date, the petitioners, without being represented by the Advocate, pleaded themselves guilty and were thus convicted and sentenced to pay a fine of Rs.1000/- each and in case of default of payment of fine, to undergo simple imprisonment for 10 days.

4. By way of present petition, the aforementioned FIR besides the order dated 29.03.2023 passed by the Chief Judicial Magistrate, Chandigarh has been assailed by learned counsel for the petitioners on the following grounds:-

(i) In the present case, the FIR in question was registered on 07.01.2022, whereas, the challan was filed against the petitioners on 29.03.2023 for commission of an alleged offence under Section 188 IPC. Since, maximum punishment that can be awarded under Section 188 IPC being 6 months, therefore, in terms of Section 468 Cr.P.C., the Court concerned could not have taken cognizance on the final report submitted beyond one year;

(ii) In terms of specific bar under Section 195 Cr.P.C. read with Section 2 thereof, cognizance under Section 188 IPC could not have been taken by the Trial Court on the basis of challan as only a complaint was maintainable in this regard. In support of this submission, ld. counsel placed reliance upon the following judgments:-

a) “Muniappan v. State of Tamil Nadu”, reported as 2010(4) R.C.R. (Criminal) 268

b) “Jiwan Kumar v. State of Punjab”, reported as 2009(1) R.C.R. (Criminal) 415

c) “State of Punjab v. Davinder Singh Pal Bhullar”, reported as 2012(1) RCR (Criminal) 126

(iii) Ld. Counsel also pointed out that the proceedings were carried out against the petitioners by the Trial Court on 29.03.2023 without affording opportunity to engage any lawyer which apparently was violative of Article 21 of the Constitution of India. In support, he placed reliance upon the following judgments:

a) “Md. Sukur Ali v. State of Assam”, reported as 2011(2) R.C.R. (Criminal) 121

b) “Subedar v. State of Uttar Pradesh”, reported as 2020 (17) SCC 765.

He further contended that since the petitioners pleaded guilty in absence of any representation by a lawyer, such conviction on plea of guilt was liable to be set aside and for the same, he placed reliance upon the following judgments:

a) “Khudeswar Dutta v. State of Assam”, reported as 1998(2) R.C.R. (Criminal) 328

b) “Pascal Mendonza v. State of M.P.”, reported as ILR 1990 MP 358

c) “Mousham v. State”, bearing case no CRR No 466 & 467 of 2012 (Delhi High Court).

5. On the other hand, learned counsel representing respondent-State vehemently opposed the prayer made at the instance of the petitioners while submitting that in the present case though a complaint under Section 195 Cr.P.C. was filed on behalf of the District Magistrate on 07.02.2023 which was even appended along with the challan, however, the learned Court below instead of taking cognizance on the complaint, proceeded further and took cognizance on the basis of challan filed by the investigating agency and as such it was merely an irregularity on the part of the trial court for which the petitioners