No Cognizance Under Section 188 IPC Without Complaint by Competent Public Servant: Allahabad High Court Quashes Entire Criminal Case

 

In a significant judgment concerning the mandatory requirements of Section 195 Cr.P.C., the Allahabad High Court has quashed criminal proceedings arising from alleged violation of prohibitory orders under Section 144 Cr.P.C., holding that cognizance of an offence under Section 188 IPC cannot be taken unless a written complaint is made by the competent public servant concerned.

Justice Rajesh Singh Chauhan delivered the judgment in Israr Ahmad v. State of U.P. & Others, allowing a petition under Section 482 Cr.P.C. and quashing the charge-sheet, summoning order and entire criminal proceedings.

Background of the Case

The petitioner challenged the criminal proceedings arising out of Case Crime No. 839 of 2019 registered under Sections 143, 188 and 342 IPC at Police Station Kotwali Nagar, District Pratapgarh. The charge-sheet had been filed on 24.11.2019 and cognizance was taken by the Chief Judicial Magistrate on 12.02.2020.

The principal contention raised by the petitioner was that the prosecution under Section 188 IPC was barred by Section 195(1)(a)(i) Cr.P.C. because the FIR had not been lodged by the authority who had issued the prohibitory order under Section 144 Cr.P.C., but by a police officer.

High Court's Findings

The Court reiterated that Section 195 Cr.P.C. creates a statutory bar against taking cognizance of offences under Sections 172 to 188 IPC unless there is a written complaint by the concerned public servant or by a superior officer. The provision is mandatory and non-compliance renders the prosecution without jurisdiction.

The Court relied upon the decision of the Supreme Court in D.K. Rajendran v. State of Tamil Nadu, wherein it was held that in the absence of a written complaint by the competent authority, the prosecution and all consequential proceedings are void ab initio.

Entire Proceedings Quashed

Rejecting the argument that prosecution could continue for offences under Sections 143 and 342 IPC, the Court held that these offences formed part of the same transaction and were inseparably connected with the alleged violation of the order promulgated under Section 144 Cr.P.C.

The Court observed that:

If there had been no promulgation order under Section 144 Cr.P.C., there would have been no offence under Section 188 IPC and consequently the allegations of unlawful assembly and wrongful confinement would not survive independently.

Accordingly, the Court held that the prosecution could not bypass the statutory bar under Section 195 Cr.P.C. by splitting the offences and continuing proceedings for Sections 143 and 342 IPC alone.

Final Decision

Allowing the petition, the High Court quashed:

• Charge-sheet dated 24.11.2019;
• Summoning order dated 12.02.2020;
• Criminal Case No. 2355 of 2020; and
• Entire proceedings arising out of Case Crime No. 839 of 2019 under Sections 143, 188 and 342 IPC.

Significance of the Judgment

The judgment reaffirms that:

• Section 195 Cr.P.C. is mandatory and jurisdictional.
• Cognizance of an offence under Section 188 IPC cannot be taken on a police report alone.
• When allied offences arise from the same transaction as an offence covered by Section 195 Cr.P.C., courts cannot artificially split the prosecution to sustain proceedings.
• Criminal prosecutions initiated in violation of Section 195 Cr.P.C. are liable to be quashed in their entirety.

Key Takeaway

The Allahabad High Court has held that where prosecution under Section 188 IPC is barred for want of a proper complaint under Section 195 Cr.P.C., and offences under Sections 143 and 342 IPC arise from the same transaction, the entire criminal proceedings are liable to be quashed.

Case: Israr Ahmad v. State of U.P. & Others, Application U/S 482 No. 12525 of 2023, decided on 03.01.2024.

https://elegalix.allahabadhighcourt.in/elegalix/WebDownloadJudgmentDocument.do?judgmentID=11142659

https://elegalix.allahabadhighcourt.in/elegalix/WebDownloadJudgmentDocument.do?judgmentID=11142659