Case Note & Summary
The petitioners, including Sri Rajashekharananda Swamiji, were charge-sheeted as accused in C.C.No.3660/2016 before the JMFC (III Court), Mangaluru, for offences under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 IPC and Sections 2(a) and 2(b) of the Karnataka Prevention of Destruction and Loss of Property Act, 1981. The case arose from a procession organized contrary to a prohibitory order issued by the Commissioner of Police, Mangalore city, under Section 144 IPC on 08.12.2014. It was alleged that the accused violated the order, assembled in large numbers, obstructed police duties, damaged barricades and vehicles, and caused injuries to public servants. On investigation, a charge sheet was filed and the Magistrate took cognizance on 24.10.2016. The petitioners challenged the proceedings, contending that the prime offence was under Section 188 IPC and that Section 195(1)(a) Cr.P.C. barred cognizance except on a complaint in writing by the public servant concerned. They argued that the complaint was not filed by the Commissioner of Police who promulgated the order, rendering the entire proceeding without jurisdiction. The court agreed, noting that Section 195(1)(a) clearly requires a written complaint by the concerned public servant or his administrative superior for offences under Sections 172-188 IPC. As the prohibitory order was by the Commissioner of Police and not the complainant, the FIR, charge sheet, and cognizance order were without jurisdiction. Further, relying on State of Karnataka v. Hemareddy, (1981) 2 SCC 185, the court held that where the offences form part of the same transaction as those covered by Section 195(1), the entire prosecution is vitiated and cannot be split. Accordingly, all proceedings were quashed.
Headnote
A) Criminal Procedure - Cognizance of Offences - Section 195(1)(a) Cr.P.C. - Sections 172-188 IPC - Where the main offence was under Section 188 IPC, the court could not take cognizance except on a complaint in writing by the public servant concerned or his administrative superior; if other offences arose from the same transaction, the entire prosecution was vitiated and could not be split - Held, entire proceedings including FIR, charge sheet, and cognizance order are quashed. (Paras 6-11)
Issue of Consideration
Whether the proceedings in C.C.No.3660/2016 against the petitioners are sustainable in law given the bar under Section 195(1)(a) Cr.P.C. for taking cognizance of offence under Section 188 IPC without a proper complaint?
Final Decision
The petition is allowed. The impugned first information report, complaint, charge sheet and the proceedings in C.C.No.3660/2016 are hereby quashed.
Law Points
- Section 195(1)(a) Cr.P.C. bars court from taking cognizance of offences under Sections 172 to 188 IPC except on a complaint in writing by the public servant concerned or his administrative superior
- if the offences form part of the same transaction as those covered by Section 195(1)
- the entire prosecution cannot be split and must be quashed
Case Details
2021 LawText (KAR) (06) 44
W.P.No.13328/2018 (GM-RES)
Gautham Bharadwaj for Suyog Herele.E (for petitioners); Thejesh.P., HCGP (for respondent)
Sri Rajashekharananda Swamiji and Sri M.B.Puranik
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Nature of Litigation
Quashing of criminal proceedings for offences including unlawful assembly and disobedience of prohibitory order
Remedy Sought
Petitioners sought quashing of entire proceedings in C.C.No.3660/2016 including complaint, FIR, charge sheet
Filing Reason
Petitioners alleged that the court took cognizance of offence under Section 188 IPC without a proper complaint as required under Section 195(1)(a) Cr.P.C., rendering the proceedings without jurisdiction
Issues
Whether the proceedings are sustainable in law given the bar under Section 195(1)(a) Cr.P.C. for taking cognizance of offence under Section 188 IPC without a complaint by the public servant concerned?
Submissions/Arguments
Petitioners argued that Section 195(1)(a) Cr.P.C. bars cognizance of offences under Sections 172-188 IPC except on a written complaint by the public servant concerned; since the prohibitory order was by Commissioner of Police and complaint was not by that authority, the proceedings are without jurisdiction; the entire proceedings are vitiated as the other offences arise from the same transaction.
Ratio Decidendi
Where the main offence is under Section 188 IPC, and cognizance is taken without complying with the mandatory requirement of Section 195(1)(a) Cr.P.C., the entire prosecution is vitiated, and it cannot be split to uphold prosecution for other offences arising from the same transaction, as per State of Karnataka v. Hemareddy (1981) 2 SCC 185.
Judgment Excerpts
Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein.
We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld.
Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.
Procedural History
Based on complaint by Police Inspector, Mangalore Rural Police registered FIR Crime No.428/2014 for offences under IPC and KPDLP Act. On investigation, charge sheet filed; Magistrate took cognizance on 24.10.2016 and issued summons. Petitioners filed writ petition under Article 226/227 and Section 482 Cr.P.C. seeking quashing.
Acts & Sections
- Indian Penal Code, 1860: Sections 143, 144, 145, 147, 148, 153, 188, 332, 353
- Code of Criminal Procedure, 1973: Sections 195(1)(a), 2(d), 190(1)(a), 200
- Karnataka Prevention of Destruction and Loss of Property Act, 1981: Sections 2(a), 2(b)
