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IN THE HIGH COURT OF ALLAHABAD
Shamim Ahmed, J.
Ashish Kumar Tiwari @ Rahul And Others - Applicant
Vs.
State Of Uttar Pradesh Thru. A.C.S/Prin. Secy. Deptt. Home Govt. Lko. And Another - Opposite Party
Application U/S 482 No. - 2784 of 2024
Decided On : 14-06-2024
Cognizance - Criminal Procedure Code, Indian Penal Code, Disaster Management Act - Sections 143, 147, 188, 269, 283 IPC; Section 51(b) Disaster Management Act; Sections 195(1)(a)(i), 2(d), 155(2) Cr.P.C. - The court discussed the procedural requirements for taking cognizance of offences under the IPC and the necessity of a written complaint from a public servant as mandated by Section 195(1)(a)(i) Cr.P.C. It emphasized that the FIR registered under Section 188 IPC was without jurisdiction due to the absence of such a complaint, rendering the cognizance and summoning order legally unsustainable. The court highlighted the non-cognizable nature of the offences and the requirement for prior permission from a magistrate for police investigations, ultimately leading to the quashing of the proceedings against the applicants.
Fact of the Case:
The applicants filed an application under Section 482 Cr.P.C. to stay the cognizance and summoning order issued by the trial court regarding charges of unlawful assembly and violation of COVID-19 guidelines. The FIR was lodged based on allegations of a candle march that violated social distancing norms, leading to the applicants being charged under various sections of the IPC and the Disaster Management Act.
Finding of the Court:
The court found that the FIR was registered without jurisdiction as it lacked a written complaint from the concerned public servant, which is a mandatory requirement under Section 195(1)(a)(i) Cr.P.C. The court noted that the charges lacked sufficient evidence and that the police had no authority to investigate non-cognizable offences without prior magistrate permission.
Issues: Whether the cognizance and summoning order were valid given the absence of a written complaint from a public servant and whether the charges against the applicants were substantiated by sufficient evidence.
Ratio Decidendi: The court held that the FIR and subsequent proceedings were invalid due to the lack of a necessary written complaint as required by Section 195(1)(a)(i) Cr.P.C. It reiterated that the police cannot investigate non-cognizable offences without magistrate permission, and emphasized the need for concrete evidence to support the charges under the IPC and the Disaster Management Act.
Final Decision: The court quashed the cognizance and summoning order dated 13.09.2022 and the entire criminal proceedings against the 28 applicants, allowing their application under Section 482 Cr.P.C.
JUDGMENT :
Shamim Ahmed, J.
1. Heard Shri Manuvendra Singh, learned counsel for the applicants, Shri Ashok Kumar Singh, learned A.G.A-I for the State-opposite parties and perused the material placed on record.
2. The instant application under Section 482 Cr.P.C. has been filed on behalf of the applicant, namely- Ashish Kumar Tiwari @ Rahul and 27 others with a prayer to stay the cognizance and summoning order dated 13.09.2022 passed by the court of Civil Judge (Senior Division) / F. T. C. IInd Pratapgarh, which has been taken on the charge sheet dated 06.08.2022, arising out of the Case Crime No.0106 of 2021, under section 143, 147, 281, 283, 188, 269, I.P.C. & 51(b) Disaster Management Act, 2005, Police Station Kohandaur, District-Pratapgarh with a further prayer seeking any other order or direction this Court may kindly pass.
3. Learned Counsel for the applicants submitted that a First Information Report (FIR) was lodged at the police station Kohandaur Pratapgarh by opposite party no.2, on 30.05.2021 at 23:31 and as per Prosecution Story information was received through an informer that some people are going to take out a candle march from Shivpur Khurd and block the road of Kohandaur, Kandharpur in front of Shivpur village regarding the arrest of the accused related to the murder of Arvind Dubey in village Shivpur Khurd. On the information, the opposite party No.2 left from Kandharpur with his associates and reached village Shivpur Tiraha and saw that the accused persons alongwith 50-60 persons (name and address unknown) from village Shivpur Khurd were violating the Covid-19 guidelines without following social distancing and without permission people were coming carrying placards with anti-police and anti-police slogans in their hands and raising anti-police slogans. When they saw police coming to Shivpur intersection they sat on the road going to Kohdaur Near Khushhali Baba Temple and blocked the Kandharpur Road.
4. Learned Counsel for the applicants further submitted that the statement of the complainant was recorded by the investigation officer under section 161 Cr.P.C. in which the complainant reiterated the same version of the FIR dated 30.05.2021.
5. Learned Counsel for the applicants further submitted that the statement of the witnesses namely Constable Amit Kumar PNO 192612874, Cons. Vivek Pratap Kushwaha, PNO 192612630, Sub Inspector Virendra Kumar Tripathi PNO- 880897817, & Sub Inspector Vijay Kumar PNO-0902340147, have been recorded by the Investigating Officer under section 161 Cr.P.C. their statements were also similar to the version of the FIR dated 30.05.2021.
6. Learned Counsel for the applicants further submitted that the statements of the independent witnesses, namely-Manoj Kumar Dubey Son of Indramani, Satish Dubey Son of Indramani Dubey, have been recorded by the Investigating Officer under section 161 Cr.P.C. wherein they stated that Shanu Dubey son of Nandu Dubey was not present on the spot at the time of incident and on basis of their statements name of the accused Shanu dubey was removed.
7. Learned Counsel for the applicants further submitted that the applicants were violating the Covid-19 Guidelines which were promulgated by District Magistrate, Pratapgrh, thus, the District Magistrate, Pratapgarh was duty bound to make a complaint to the learned Area Judicial Magistrate concerned either under his own signature or through any authorized official subordinate to him, but in this case a police has been lodged FIR dated 30.05.2021 and also submitted Police Report dated 06.08.2022 against the present applicants and it is very surprising that concerning Trail Court without applying its own mind, issued summoning dated 13.09.2022 in absence of a separate complaint under section 195(1)(a)(i) Cr.P.C. which is inevitable for the purpose of taking cognizance and putting the accused to trial.
8. Learned counsel for the applicants further submitted that the F.I.R. was registered under Sections 188 I.P.C., which is witho
Cognizance of an offence under Section 188 IPC requires a written complaint by a public servant; FIRs based solely on police reports are prohibited and rendered void.
The court emphasized the need for a simpler procedure in dealing with petty offences and criticized the delay in disposing of cases related to violation of orders under the Disaster Management Act, 2....
The judgment emphasizes the mandatory nature of legal provisions such as Section 195(1) Cr.P.C., Section 2(d) Cr.P.C., and Section 155(2) Cr.P.C. in determining jurisdiction and procedural compliance....
The registration of FIR under Section 188 IPC without a written complaint from the concerned public servant is impermissible and renders the proceedings void ab initio.
The central legal point established in the judgment is the mandatory compliance with legal provisions, the requirement for evidence to support charges, and the need for proper service through the Emb....
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