Prosecution under IPC Sections 188 and 171-F lacks validity without a complaint from the concerned public servant, rendering proceedings void ab initio.

ORAL JUDGMENT

Date : 09-12-2025 Heard learned counsel appearing on behalf of the petitioner and learned APP for the State.

2. The petitioner has preferred application under Section 528 of BNSS for quashing the order taking cognizance dated 28.09.2012 passed by the learned Sub-Divisional Judicial Magistrate, Sikrahna at Motihari, East Champaran in connection with Patahi P.S. Case No. 25 of 2009, by which learned Sub- Divisional Judicial Magistrate, Sikrahna at Motihari, East Champaran has taken cognizance of offence under Sections 188 and 171 F of the Indian Penal Code .

3. As per the allegation made in the FIR, on

17.04.2009, during the parliamentary election, while the informant, who is a police personnel, was on patrolling duty, stopped a Scorpio vehicle bearing Registration No. DL3CAS 2475 registered in the name of the petitioner, for checking near Champapur village but the petitioner could not produce any chit of paper relating to the vehicle and he along with the driver, fled away from the spot. One co-accused Ram Chandra Sah was arrested on the spot and vehicle of the petitioner was seized.

4. Learned counsel appearing on behalf of the petitioner submitted that petitioner was going to cast his vote to his native place in the district of Supaul by his own vehicle through National Highway NH 227F, while he was crossing the Champapur Village, his vehicle was stopped by the police personnel and was forced to surrender his vehicle for the purpose of election duty. The petitioner refused to surrender, which led to failing of criminal case against him. He further submitted that no incriminating articles were recovered from the vehicle. The FIR was lodged against unknown and driver of the vehicle along with the petitioner were made accused on the basis of ownership. The arms were recovered from co-accused, who can be said to be a passers by namely, Ram Chandra Shah unknown to the petitioner. On these grounds, learned counsel submitted that from the very perusal of the FIR, in absence of violation of any law and order having been not complied by the petitioner, no offence under Sections 188 and 171 F of the Indian Penal Code is made out.

5. Per contra, learned A.P.P. for the State submitted that the petitioner was accompanying the co-accused Ram Chandra Shah, who was apprehended along with loaded pistol and live cartridges. He submitted that the very content of the FIR, it can be found that the petitioner had allegedly participated in the offence along with the co-accused Ram Chandra Shah to impede the election process under influence of some political parties. He further draws attention to the Prohibitory orders and promulgation of 'Mode Code of Conduct', the petitioner and co-accused persons violated these orders and hence charge-sheet has been submitted, in which the petitioner and co-accused persons have found to be accused of offence under Section 171 F of the Indian Penal Code and cognizance has also been taken under Sections 188 and 171 F of the Indian Penal Code .

6. Heard the parties.

7. Petitioner is aggrieved by the cognizance order dated 28.09.2012 taken under Sections 188 and 171 F of the Indian Penal Code . Before examining the legality of the order, I find it gainful to reproduce Section 195 (1) (1) of the Code of Criminal Procedure , which is the guidelines to take cognizance of offence under Sections 171 to 188 (both inclusive) of the Indian Penal Code , which is as follows:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-

(1)No Court shall take cognizance -

(a)(i)of any offence punishable under sections

172 to 188 (both i