Cognizance for offences under Section 188 IPC requires a written complaint by a public servant; police reports cannot substitute this requirement, emphasizing that essential offence elements were not established.

JUDGMENT :

SAMEER JAIN, J.

1. Heard Sri Praveen Kumar Singh, learned counsel for the applicant and Sri Manish Goyal, learned AAG assisted by Sri Rupak Chaubey, learned AGA for the State-respondent.

2. The instant application u/s 528 BNSS has been filed by the applicant with a prayer to quash the summoning order dated 9.9.2019 and the charge sheet dated 7.11.2017 as well as the entire proceedings of case No. 2436 of 2019 ( State Vs. Surendra Patel and others ) arising out of case crime No. 193 of 2017 u/s 188 IPC, Police Station Kotwali, District Varanasi, pending in the court of Additional Civil Judge (JD)-V/J.M., Varanasi.

Brief facts of the case:-

3. FIR of the present case was lodged on 20.9.2017 for offence punishable under section 188 IPC against the applicant and ten others and 500 unknown persons and according to the FIR on 20.9.2017 at about 11:50 am applicant and other accused were agitating against the government and they in spite of the restrictions laid the procession and therefore, they violated the provisions of section 144 Cr.P.C. and thus committed offence under section 188 IPC.

4. After registration of the FIR investigation was commenced and after investigation charge sheet has been filed against the applicant and others on 7.11.2017 under section 188 IPC and after submission of charge sheet court concerned took the cognizance on 9.9.2019 and issued summons.

5. Hence, the instant application.

Argument advanced on behalf of the applicant:-

6. Learned counsel for the applicant submitted that only due to political vendetta, applicant has been roped in the present case alongwith others on the basis of false allegations.

7. He further submitted, applicants and others carried out a peaceful procession and merely by doing so it can not be said that they committed offence under section 188 IPC.

8. He further submitted that mere violation of section 144 Cr.P.C does not attract the provisions of section 188 IPC and for offence punishable under section 188 IPC it is also necessary that the alleged disobedience committed by an accused must cause or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed.

9. He further submitted that from the evidence collected by the Investigating Officer during investigation, it could not be reflected that either applicant or any other accused caused or tended to cause any obstruction or injury to any person lawfully employed but inspite of that charge sheet under section 188 IPC has been filed against the applicant and court concerned also took the cognizance and issued summons on 9.9.2019.

10. He further submitted that even as per section 195(1)(a)(i) Cr.P.C., no court shall take cognizance for an offence punishable under section 178 to 188 (both inclusive) of the IPC except on the complaint in writing made by a public servant concerned and therefore, cognizance and summoning order dated 9.9.2019 is illegal as in the present matter admittedly court concerned took the cognizance for offence under section 188 IPC on the police report submitted u/s 173(2) Cr.P.C.

11. He further submitted that therefore, considering the facts and circumstances of the case argued above, cognizance and summoning order dated 9.9.2019 as well as charge sheet filed against the applicant dated 7.11.2017 and entire proceeding pending against the applicant are bad and are liable to be quashed.

Argument advanced on behal