Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. refused the application for grant of leave to appeal against acquittal and dismissed the petition in limine.

The factual matrix of the case is that the respondents on 4-5-2013 at 7.15 p.m. entered into the prohibited area without permission and violated the promulgated order of the Government and thereby committed the offence under Section 188 IPC.

The counsel Vikram Sharma appearing for the petitioner submitted that the Judicial Magistrate First Class was absolutely unjustified in acquitting the respondents of the offence under Section 188 IPC on the ground that despite sufficient opportunity, no witnesses were examined to support the case of the prosecution as no reasonable opportunity was granted to adduce evidence.

The Court relied on the judgment titled C. Muniappan v. State of T.N., (2010) 9 SCC 567 and Babita Lila v. Union of India, (2016) 9 SCC 647 held that the offence under Section 188 IPC can be taken cognizance of by the Magistrate under Section 190 CrPC except in accordance with Section 195(1)(a)(i) CrPC and unless complaint in writing is filed by the public officer concerned, on the basis of police report, offence under Section 188 IPC cannot be taken cognizance of by the jurisdictional Magistrate. He further held that this principle has to be given a strict interpretation and not a liberal one and hence trial of the respondents for the offence under Section 188 IPC on the basis of police report and charge-sheet filed subsequent thereto by the State police was absolute without jurisdiction and without authority of law.

In view of the above, application for grant of leave to appeal against acquittal stands refused and the petition dismissed.[State of Chhattisgarh v. Rikki Sahu, 2020 SCC OnLine Chh 110, decided on 14-07-2020]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. allowed a petition filed against order of the trial court whereby it has taken cognizance of offence under Section 188 IPC (disobedience to order duly promulgated by public servant) against the petitioner.

The District Disaster Management Authority carried out an inspection of “M Cinemas” of the petitioner and identified certain shortcomings. The premised was directed to be closed for visitors. On petitioner’s failure to comply with the directions, CEO of the Authority filed a complaint with SHO of the police station concerned. An FIR was registered and chargesheet was assailed by the police, based on which cognizance was taken by the Magistrate vide the impugned order. Aggrieved thereby, the petitioner was before the High Court.

The petitioner was represented by Nina R. Nariman with Vrinda Bhandari and Geetika Kapur, Advocates. It was submitted that in terms of Section 195 CrPC, no Court can take cognizance of an offence under Section 188 IPC except on complaint of public servant concerned. It was contended that no complaint satisfying requirements of Section 2(d) CrPC was filed in the present case. As per Section 2(d), a “complaint” has to be in writing to the Magistrate.

The High Court held that the complaint made by CEO of the Authority was a complaint made to SHO which could not be treated as a complaint to the Magistrate so as to satisfy the requirements of Section 195 (1)(a)(i) CrPC. It was observed, “Non-compliance of Section 195 is a defect which cannot be cured subsequently as was sought to be done by the prosecution by filing a supplementary chargesheet or by way of a complaint given by the public servant after cognizance has been taken.” Holding that the present proceedings suffered from infraction of Section 195, the Court allowed the petition and quashed the impugned order. [Mohan Kukreja v. State (NCT of Delhi), 2019 SCC OnLine Del 6398, decided on 08-1-2019]

Case BriefsSupreme Court

Supreme Court: Explaining the scope of the expression “the public servant or his administrative superior” under Section 195(1) (a)(i) CrPC, the bench of A.K. Goel and U.U. Lalit, JJ held that the expression cannot exclude High Courts.

Interpreting Section 195(1) (a)(i) CrPC which says that cognizance in respect of offence under sections 172 to 188 IPC cannot be taken except “on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate”, the Court said that that while the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person.

It was further held that direction of the High Court is at par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. [CBI v. M. Sivamani, 2017 SCC OnLine SC 845, decided on 01.08.2017]