Mandatory nature of Section 195 Cr.P.C. and its specific bar on taking cognizance of offences indicated in the chargesheet under Section 188 of IPC in the absence of a written complaint by the authorized officer.

JUDGMENT :

1. Heard Sri Ajmal Khan, learned counsel for the petitioner and Sri Aniruddha Kumar Singh, learned Additional Government Advocate-I for the State.

2. By means of this petition filed under Section 482 Cr.P.C., the petitioner has prayed to quash the proceeding of Criminal Case No. 2355 of 2020, State Vs. Israr Ahmad and Others, arising out of Case Crime No. 839 of 2019, under Sections 143, 188, 342 IPC, Police Station Kotwali Nagar, District Pratapgarh, pending in the court of learned Chief Judicial Magistrate, Pratapgarh as well as chargesheet dated 24.11.2019 and summoning order dated 12.02.2020.

3. The contention of learned counsel for the petitioner is that the Investigating Officer has conducted the investigation in sheer casual and cursory manner and filed the chargesheet against the petitioner under Sections 143, 188, 342 IPC. The court concerned took cognizance in a mechanical manner and has issued the summoning order without applying its judicial mind against the petitioner on 12.02.2020.

4. Learned counsel for the petitioner has stated that the cognizance of the chargesheet by the learned Chief Judicial Magistrate, Pratapgarh in the present case is violation of Section 195(1)(a)(i) of Cr.P.C. He has further submitted that Section 195(1)(a)(i) provides that no court shall take cognizance of an offence under Section 188 IPC except on the complaint in writing of the public servant concerned or of some other public servant, to whom he is administratively subordinate.

5. Attention has been drawn towards the judgment and order dated 18.06.2021 passed by Karnataka High Court in Writ Petition No. 13328 of 2018(GM-RES), Sri Rajashekharananda Swamiji and Another Vs. The State of Karnataka, referring para nos. 7, 8, 9,10 and 11 which read as under:

"7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:

"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, 1860 (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;"

8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.

9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy [(1981) 2 SCC 185], the Hon'ble Supreme Court held as follows:

"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Proc