Section 195 crpc and section 188 ipc
Munish Kumar Garg
(Querist) 27 March 2012
This query is : Resolved
Hello Members
Can anyone please help me out that if a person is committing an offence under section 188 IPC and FIR was lodged against him by the order of the court, as per Section 195 CrPC it is clearly mention that "No court shall take cognizance" which implies to me that only a private complaint can be filed before the learned Illaqa Magistrate instead of lodging an FIR, as it is now where mention in the Section that an FIR can be lodged against the accused except the complaint " as word complaint is used in the section".
So my request to you is that please tell me that FIR can be lodged against the accused under this section directly or not.
Or the public servant has to resort to step by filling complaint before the Court in whose jurisdiction the offense was committed.
Thanks
Munish Garg, Adv
Punjab And Haryana High Court, CHD
Adv.R.P.Chugh
(Expert) 27 March 2012
Dear Colleague,
Cognizance by the Magistrate can be taken only on a COMPLAINT by the concerned public servant, FIR cannot be lodged directly - the idea being that where public justice is attempted to be thwarted it is in the fitness of things that those appointed to uphold the same complain themselves. These public justice matters cannot be allowed to be left in hands of private persons.
Raj Kumar Makkad
(Expert) 27 March 2012
Punjab-Haryana High Court
Ashwani Garg vs State Of Punjab And Others on 25 February, 2010
Crl.Misc. No.M-6816 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-6816 of 2009
Date of Decision:February 25 , 2010
Ashwani Garg ...........Petitioner Versus
State of Punjab and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina
Present: Mr. Pankaj Jain,Advocate
for the petitioner.
Mr.J.S.Sandhu,Assistant Advocate General,Punjab **
Sabina, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.) seeking quashing of FIR No. 144 dated 22.6.2007 registered under Section 188 of the Indian Penal Code (for short `IPC') at Police Station City Sangrur,District Sangrur (Annexure P5) and all further proceedings arising there from . Learned counsel for the petitioner has submitted that in the present case FIR could not be registered as offence was under Section 188 IPC. With regard to the said offence, the Court could take cognizance only on the basis of a complaint in writing by the concerned Officer. In support of his arguments, learned counsel has placed reliance on Jiwan Kumar vs. State of Punjab and others 2008 CRI.L.J.3576. Paras 8 and 10 of the said Crl.Misc. No.M-6816 of 2009 2 judgment reads as under:-
"Coming to the attack of the petitioner in regard to registration of the FIR, it may be noticed that proceedings under Section 188 IPC can only be initiated on the basis of a complaint in writing of the public servant concerned made to the Court or to some other public servant to whom he is administratively subordinate. Section 195(1) of the Code restrains the Court from taking cognizance of any offence punishable under Section 188 IPC unless a complaint in writing is made to it by the public servant concerned. In other words, no FIR can be registered by the police. It would not be open to the police to register a case against the offender for offence under Section 188 IPC and then to submit a report under Section 173 of the Code to the concerned Court. Reliance in this regard can be plaed on Jagtar Singh v. Union Territory, Chandigarh 1996(1) RCR 669, wherein this Court held as under:-
"These facts are not disputed. Language of Section 195 (1) of the Code does not leave scope for any ambiguity and is the section which has to be construed strictly. In accordance with the settled principles of interpretation applicable to criminal jurisprudence the provisions of Criminal Procedure Code or Penal Laws have to be strictly construed so as to be given meaning except what is intended by the Legislature in the language used itself. The relevant portion of Section is that, "No Court shall take cognizance except on the complaint in Crl.Misc. No.M-6816 of 2009 3 writing of the public servant concerned or of some other public servant to whom he is administratively subordinate." The intention appears to be clear that where an offence is committed under Section 188 IPC, the Legislature has made it obligatory that the public servant before whom such an offence is committed, he will file a complaint to the Magistrate and the cognizance of the offence by the concerned Court is dependent upon the complaint in writing by such officer or an officer superior to such officer.
The counsel for the petitioner has relied upon Sawarn Singh v. The State of Punjab, 1994(3) Recent CR 352 and Bhagat Ram v. The State of Punjab, 1991(1) Recent CR 192. In both these cases the Court has indicated that the scope of Section 195(1) of the Code does not contemplate investigation in a normal way by the police and filing of he challan, but the complaint has to be presented directly to the concerned Court. In the present case though the complaint is stated to be addressed to the Court, but as it appears it was not presented to the Court and the Court did not pass any orders at that stage"
10. It is, thus, clear that the proceedings against the petitioner under Section 188 IPC have been initiated on the basis of the FIR and not on the basis of any complaint in writing of the public servant concerned as is required by Section 195(1)(a) of the Code. Crl.Misc. No.M-6816 of 2009 4 The registration of FIR and the launching of proceedings thereafter against the petitioner is not permitted by the Code and thus cannot be allowed to be sustained."
Learned State counsel, on the other hand has submitted that the FIR in question had been registered on the basis of a complaint made by the District Magistrate, Sangrur.
The contents of the FIR as reproduced in para 13 of the order reads as under:-
"D.O. No.7120/M dated 22.6.2007 subject:Registration of FIR for violation of orders under Section 144 Cr.P.C. Dear Arun Pal the District Magistrate has passed the order under Section 144 Cr.P.C. for installation of Telephone Towers by Mobile Companies after seeking prior "No Objection Certificate" from the District Magistrate Sangrur. Copy of the order enclosed. Tehsildar Sangrur has reported verbally that one Quipo Telecom Infrastructure Ltd. SCO No. 13,14,15 4th Floor Sector 34-A, Chandigarh owned by one Shri Ashwani Garg have erected Mobile Telephone Tower on the roof of a Hotel Eating Mall belonging to Shri Gain Chand son of Bali Ram Prem Chand and Madan Kumar all residents of Mahavir Chowk Sangrur have requested to take appropriate legal action and register FIR for violation of orders under Section 144 Cr.P.C. Regards yours sincerely. Sd/- SR Laddar."
As per Section 195 Cr.P.C. which deals with prosecution for contempt of lawful authority of public servants, for offences againt public justice and for offences relating to documents given in evidence, no Court Crl.Misc. No.M-6816 of 2009 5 shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
In the present case, the FIR was got registered for violation of order by the petitioner passed under Section 144 Cr.P.C. by the District Magistrate, Sangrur. However, as per Section 195 Cr.P.C. the proceedings against the petitioner under Section 188 IPC could only be initiated on the basis of complaint in writing made by the District Magistrate Sangrur to the Court . It was not within the domain of the police to register a case against the offender for offence under Section 188 IPC and after investigation submit a final report. The registration of FIR for an offence under Section 188 IPC is not permitted by the Code and, hence, the FIR is liable to be quashed.
Accordingly, this petition is allowed. FIR in question and all subsequent proceedings arising there from are quashed. (Sabina)
Judge
February 25,2010
arya
Shonee Kapoor
(Expert) 27 March 2012
Agreed and thanks for the judgment Makkad sa'ab.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
