Cognizance of an offence under Section 188 IPC requires a mandatory written complaint by the concerned public servant under Section 195 CrPC; a police report is insufficient. Additionally, investigation of non-cognizable offences requires prior permission from the jurisdictional Magistrate under Section 155(2) CrPC.

ORDER:

This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973, seeking quashment of the proceedings against the petitioners/accused Nos.1 to 5 in C.C. No.78 of 2024 on the file of the X Additional Chief Metropolitan Magistrate, Secunderabad.

2. Heard learned counsel for the petitioners and Mr. M. Vivekananda Reddy, learned Additional Public Prosecutor appearing for respondent No.1/State.

3.1. The brief facts necessary for adjudication of the present petition are that, on 19.04.2024, the de facto complainant, who was a government employee on election duty in connection with the Secunderabad Parliamentary Constituency elections, was posted at the Nomination Centre of 08-Secunderabad at the GHMC Zonal Office, Secunderabad.

3.2. It is alleged that on the said date a contesting candidate, accompanied by about 30 to 40 supporters, gathered near the GHMC office and formed an unlawful assembly. The said persons allegedly raised slogans such as “Vardhilalli Praja Udyamam”, displayed placards and flex banners, and approached within 100 metres of the Nomination Centre without obtaining prior permission from the competent authority. Based on the said allegations, the police registered a case alleging commission of offences punishable under Section 188 of the Indian Penal Code, 1860, and Sections 21 and 76 of the City Police Act.

4. Learned counsel for the petitioners submits that the allegations in the charge sheet disclose an offence under Section 188 IPC, which relates to disobedience to an order duly promulgated by a public servant.

5.1. However, it is contended that the mandatory procedure prescribed under Section 195 of the Code of Criminal Procedure has not been followed. According to the learned counsel, Section 195 Cr.P.C. creates a statutory bar prohibiting courts from taking cognizance of offences under Sections 172 to 188 IPC except upon a complaint in writing by the concerned public servant or by a public servant to whom he is administratively subordinate. Nonetheless, the prosecution was initiated on the basis of a police report and investigation, rather than a complaint made before the Magistrate by the concerned public servant. Therefore, the cognizance taken by the Magistrate is legally unsustainable.

5.2. Learned counsel further contends that the alleged offence under Sections 21 /76 of the City Police Act is non-cognizable in nature. Therefore, in terms of Section 155(2) Cr.P.C., the police could not have undertaken investigation without obtaining prior permission from the jurisdictional Magistrate. As no such permission was obtained, the entire investigation and the charge sheet stand vitiated.

5.3. In support of his submissions, learned counsel places reliance on the judgment of this Court in Kottu Satyanarayana v. State of Andhra Pradesh ,[2014 SCC ONLINE HYD 777] wherein it was held that prosecution for an offence under Section 188 IPC on the basis of a police report, without a complaint as contemplated under Section 195 Cr.P.C., would amount to an abuse of process of law. Accordingly, it is prayed that the proceedings against the petitioners be quashed.

6.1. Learned Additional Public Prosecutor submits that respondent No.2, who is a government employee and was on official duty at the relevant time, submitted a report regarding the incident. It is further submitted that the alleged acts of the accused constitute violation of orders issued by the competent authority during the election process.

6.2. However, it is fairly submitted that the procedural requirements under Section 195 Cr.P.C. and the provisions governing non-cognizable offences may be considered by this Court wh