Cognizance under Section 188 I.P.C. is invalid without a public servant's complaint, rendering related proceedings void.

JUDGMENT :

Rajesh Singh Chauhan, J.

1. Heard Sri Sushil Kumar Singh (S.K. Singh), learned counsel assisted by Sri Janardan Singh, learned counsel for the applicant and Sri Ran Vijay Singh, learned Additional Government Advocate for the State.

2. Learned counsel for the applicant has filed Supplementary affidavit, today in the Court, the same is taken on record.

3. By means of this application/petition filed under Section 528 of Bharatiya Nyaya Sanhita , 2023 (Old U/S 482 Cr.P.C.), the applicant has prayed for the following relief:-

"For the facts, reasons and circumstances, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash and set aside the impugned order dated 31.07.2024, passed by the learned Additional Civil Judge, Magistrate Court Room No.1, (Special Court MP/ MLA), Gonda in Crime No.348 of 2014, under Section 341 I.P.C., Police Station-Kotwali Nagar, District-Gonda and further be pleased to allow the applicant for withdrawal of prosecution dated 03.11.2020, under Section 321 Cr.P.C., moved by the State of U.P. through Additional DGC (Crl.), Gonda in the interest of justice."

4. This is the second application on the same prayer as the first application was dismissed being withdrawn vide order dated 27.09.2024 (Annexure No.1) passed in Application (U/S 482 Cr.P.C.) No.8632 of 2024; Brij Bhushan Sharan Singh vs. State of U.P. & another, giving liberty to the applicant to file a fresh application. Pursuant to that order, the present application has been filed.

5. Before adverting to the contentions of learned counsel for the applicant, I find it appropriate that the order dated 20.08.2022 passed by this Court in Application (U/S 482 Cr.P.C.) No.3167 of 2022; Brij Bhushan Sharan Singh vs. State of U.P. and another, be reproduced here-in-below inasmuch as the purported genesis of the impugned order dated 31.07.2024 passed by the learned Additional Chief Judicial Magistrate, Court No.1/ Special Magistrate MP/MLA, Gonda is based on the aforesaid order dated 22.08.2022 (supra). The order dated 22.08.2022 reads as under:-

"1. Heard learned counsel for the parties.

2. Present petition under section 482 Cr.P.C. has been filed seeking quashing of the Chargesheet no. 77/2014 dated 30-04-2014 submitted by the police against the petitioner for the offences under sections 341, 188 I.P.C. relating to Case Crime No. 348 of 2014, Police Satation-Kotwali Nagar, district-Gonda as well as summoning order dated 22-01-2018 passed in Case No. 120 of 2018, State Versus Brij Bhushan Singh including further proceedings pending before Additional Chief Judicial Magistrate-I,Gonda.

3. Sri Janardan Singh, learned counsel for the petitioner submits that under section 195 Cr.P.C., there is a bar for taking cognizance for the offfence under section 188 I.P.C. except on a complaint made by public servant. He has further submitted that neither any F.I.R. could have been registered for the offence under section 188 I.P.C. nor any chargesheet could have been filed.

4. It has further been submitted by the learned counsel for the petitioner that order of taking cognizance and initiating further proceedings are against the express provisions of section 195 Cr.P.C., therefore, they are void ab-initio.

5. It has further been submitted that lodging of the F.I.R. and filing of the chargesheet and taking cognizance on the said charghesset are wholly illegal and against the bar created under section 195 Cr.P.C.

6. Sri Rao Narendra Singh, learned A.G.A. does not dispute the fact that there is a bar created under section 195 Cr.P.C.

7. Considering the aforesaid position and taking into consideration the provisions of Section 195 Cr.P.C., this court is of the view that no cognizance could hav