A court cannot take cognizance of an offence under Section 188 of the Penal Code without a written complaint by the concerned public servant as mandated by Section 195 of the Code of Criminal Procedure; failure to follow this procedure renders the proceedings legally unsustainable and vitiated.

The Court made the following:

COMMON ORDER:

These two Criminal Petitions are heard and disposed of by way of this common order, as the facts and circumstances in these two cases are identical, but, of course, the Petitioners are same, albeit they arise out of two different cases.

2. The Criminal Petition have been filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.,’)/Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) seeking to quash the proceedings against the Petitioner/Accused No.1 in C.C.Nos.629 and 627 of 2020 on the file of the learned Judicial First Class Magistrate, Nandikotkur, registered for the alleged offence punishable under Section 188 of the Indian Penal Code, 1860 (for brevity ‘the I.P.C’) and Section 32 of the Andhra Pradesh Police Act, 1861 (for brevity ‘the Act’).

3. The allegation against the petitioner in is that on 05.03.2019, at about 11:30 hours, at Thudicherla village within the jurisdiction of the Court, he, in utter disregard of the prohibitory orders duly promulgated under Section 30 of the Police Act, 1861, which were in force during the General Elections, convened and participated in a roadshow and public assembly without obtaining prior sanction from the competent authority/Returning Officer. Such conduct amounts to a manifest violation of the Model Code of Conduct. Based on the report submitted, a case in Crime No. 59/2019 was registered for the offences punishable under Section 188 of the Indian Penal Code and Section 32 of the A.P. Police Act. The said acts constitute prima facie wilful disobedience of lawful orders promulgated by a public servant, thereby attracting penal consequences under the aforesaid provisions.

4. The facts and circumstances of the case in disclose that on 02.04.2019, at about 12:00 noon, at W. Prathakota village, within the limits of Muchumarri Police Station and within the jurisdiction of the Hon’ble Court at Kurnool, the accused conducted a roadshow and organised a public meeting without obtaining prior permission from the competent authority, despite prohibitory orders being in force during the General Elections. It is further alleged that an unregistered vehicle was used for the said purpose without authorization. These acts were noticed by officials on election duty and were reported to the police. Based on the said report, a case in Crime No. 28/2019 was registered for the offence punishable under Section 188 of the Indian Penal Code, and upon completion of the investigation, a charge sheet was filed against the accused.

5. Heard the learned counsel for the Petitioners and the learned Assistant Public Prosecutor.

6. Thoughtful consideration is bestowed on the arguments advanced by the learned Counsel for both sides. I have perused the entire record.

7. In the light of the case of the prosecution and the contentions of the learned Counsel for both the sides, now the point for consideration is:

“Whether the proceedings in C.C.Nos.627 and 629/2020 on the file of the learned Judicial First Class Magistrate, Nandikotkur, Kurnool District are liable to be quashed in exercise of the inherent powers of the High Court under Section 482 of ‘the Cr.P.C.,’/Section 528 of ‘the BNSS’?"

8. It is submitted that, as per the charge sheets, the alleged offences against the petitioner fall under Section 32 of ‘the Act.