Prosecution under Section 188 IPC requires a complaint from a public servant; failure to meet this requirement invalidates related charges.

Petitioners are the accused in C.C.No.588/2013 on the files of the Judicial First Class Magistrate Court, North Paravur, arising out of Crime No.286/2010 of Vadakkekara Police Station. It is submitted that the 5th accused has already expired.

2. According to the prosecution, accused had on 19.04.2010 formed themselves into an unlawful assembly and in furtherance of their common object to construct a compound wall around a property in violation of the prohibitory orders of the District Collector and while they were indulging in the construction, the local people who had questioned the same was intimidated with threats to kill them and thereby committed the offences punishable under Sections 143 , 147, 148, 188, 283, r/w Section 149 of the Indian Penal Code, 1860 , apart from Section 235W (2) of the Kerala Panchayat Raj Act, 1994 .

3. I have heard Sri.P.Samsudin, the learned counsel for the petitioners as well as Sri.Noushad K.A., the learned Public Prosecutor and Sri.Franklin Arackal, the learned counsel for the second respondent.

4. On a reading of the prosecution allegations, as revealed from the final report, it is evident that, the construction of the compound wall was alleged to be in violation of a prohibitory order issued by the District Collector, based on which, the offences are alleged to have been committed. Admittedly the FIR was registered not at the behest of the District Collector, who had issued the prohibitory order under Section 188 of IPC , instead it is initiated by the second respondent, who is a private individual.

5. As per the provisions of Section 195 Cr.P.C. an offence under Section 188 IPC can be initiated only on the basis of a complaint filed by the public servant, who issued the order or by a public servant who is administratively subordinate to the person who issued the order.

Admittedly, complaint having been initiated by the second respondent-a private individual, the requirement under Section 195 Cr.P.C. is not satisfied. Hence, Section 188 IPC is not attracted under any circumstances, whatsoever.

6. Once the offence under Section 188 IPC is not attracted, the alleged assembly of five or more persons cannot be stated to be unlawful.

Therefore, the offence under Sections 143 , 147, 148 r/w Section 149 of IPC also cannot be attracted.

7. As far as Section 235W (2) of the Panchayat Raj Act is concerned, the same confers power upon the Secretary of the local authority to initiate prosecution proceedings for any unauthorised construction. The provision confer power upon the Panchayat to initiate prosecution proceedings. A complaint filed by a private individual is not the proceeding contemplated under Section 235W (2) of the Act. Since the power under Section 235W (2) is vested solely with the Secretary of the local authority, the prosecution is without legal backing.

8. Even otherwise, the requirement of a license to construct the compound wall was brought in only as per Rule 87 of the Kerala Panchayat Building Rules, 2011; with effect from February 14, 2011, that too with the condition that the property abuts a public road. There is no reference in the final report that the alleged property is adjacent to any public road as such. In view of the above circumstances, the offence under Section 235W (2) of the Panchayat Raj Act is also not attracted.

9. Viewed in the above perspective, I find that the prosectuion initiated against petitioners in C.C.No.588/2013 on the files of the Judicial First Class Magistrate Court, North Paravur, arising out of Crime No.286/2010 of Vadakkekara Police Station, is an abuse of the process of law.

10. Accordingly, all proceedings against petitioners in C.C.No.588/2013 on the files of the Judicial First Class Magistrate Court, North Paravur, arising out of Crime No.286/2010 of Vadakkekara Police Station, are quashed.

The Crl.M.C.is allowed.