# Ajay Rai v. State of U.P. & Anr

- **Citation:** (2025) 9 ILRA 554
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-03
- **Case number:** Application U/S 528 BNSS No. 10806 of 2025
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-rai-v-state-of-u-p-anr-53929
- **Pages:** 6

## Headnote

G.A.

Issue for consideration
Effect of wrong cognizance by the Court upon
the
chargesheet;
legality
of
impugned
cognizance
and
summoning
order
and
chargesheet.

Headnotes
Indian Penal Code-sec 188; Code of
Criminal proceeding- court concerned took
the cognizance and issued summons on the
police report u/s 173(2) Cr.P.C.- Court can
not take cognizance for an offence u/s 188
IPC on the police report u/s 173(2) Cr.P.C.-
except on the complaint in writing made by
the public servant- therefore impugned
cognizance
and
summoning
order
and
proceedings are bad -cognizable offence and
therefore it cannot be held that investigation
of the case was bad-on the basis of evidence
collected by the Investigating Officer-no
offence punishable u/s 188 IPC is made out
against the applicant -charge sheet can very
well
be
quashed
on
this
ground.
Application allowed.
Held, considering the facts of the present case
it is apparent that on the basis of evidence
collected by the Investigating Officer, no offence
punishable under section 188 IPC is made out
against the applicant and though charge sheet
of the present case cannot be quashed on the
ground that cognizance was barred by virtue of
section
195(1)(a)(i) Cr.P.C. but on this ground charge
sheet can very well be quashed. Law is settled,
if evidence collected during investigation does
not disclose alleged offence then charge sheet
can be quashed (See: State of Haryana and
others Vs. Bhajan Lal and others 1992 Supp (1)
SCC 335). (para 30) (E-9)

Case Law Cited

## Text

554 INDIAN LAW REPORTS ALLAHABAD SERIES
to make his final arguments (through his
counsel). In case the applicant or his
counsel impedes the trial or adopts dilatory
tactics the learned trial court shall record a
finding to this effect and proceed in
accordance with law.
---------
(2025) 9 ILRA 554
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2025

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 528 BNSS No. 10806 of 2025

Ajay Rai ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Praveen Kumar Singh, Syed Imran Ibrahim

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Effect of wrong cognizance by the Court upon
the
chargesheet;
legality
of
impugned
cognizance
and
summoning
order
and
chargesheet.

Headnotes
Indian Penal Code-sec 188; Code of
Criminal proceeding- court concerned took
the cognizance and issued summons on the
police report u/s 173(2) Cr.P.C.- Court can
not take cognizance for an offence u/s 188
IPC on the police report u/s 173(2) Cr.P.C.-
except on the complaint in writing made by
the public servant- therefore impugned
cognizance
and
summoning
order
and
proceedings are bad -cognizable offence and
therefore it cannot be held that investigation
of the case was bad-on the basis of evidence
collected by the Investigating Officer-no
offence punishable u/s 188 IPC is made out
against the applicant -charge sheet can very
well
be
quashed
on
this
ground.
Application allowed.
Held, considering the facts of the present case
it is apparent that on the basis of evidence
collected by the Investigating Officer, no offence
punishable under section 188 IPC is made out
against the applicant and though charge sheet
of the present case cannot be quashed on the
ground that cognizance was barred by virtue of
section
195(1)(a)(i) Cr.P.C. but on this ground charge
sheet can very well be quashed. Law is settled,
if evidence collected during investigation does
not disclose alleged offence then charge sheet
can be quashed (See: State of Haryana and
others Vs. Bhajan Lal and others 1992 Supp (1)
SCC 335). (para 30) (E-9)

Case Law Cited
1. State of Maharashtra and another Vs. Sayyed
Hassan Sayyed Subhan and others (2019) 18
SCC 145
2. State of Haryana and others Vs. Bhajan Lal
and others 1992 Supp (1) SCC 335

List of Acts
1.Indian Penal Code
2. Code of Criminal Proceeding

List of Keywords
Sec. 173(2) Cr.P.C.; section 195(1)(a)(i) Cr.P.C.;
cognizance for an offence punishable under
section 178 to 188 of the IPC; cognizance on a
police report submitted under section 173(2)
Cr.P.C.

Appearances of parties
Counsel for Applicant(s) : Praveen Kumar Singh,
Syed Imran Ibrahim
Counsel for Opposite Party(s) : G.A.

(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri Praveen Kumar Singh,
learned counsel for the applicant and Sri
Manish Goyal, learned AAG assisted by Sri
Rupak Chaubey, learned AGA for the
State-respondent.

2. The instant application u/s 528
BNSS has been filed by the applicant with
9 All. Ajay Rai Vs. State of U.P. & Anr.
555
a prayer to quash the summoning order
dated 9.9.2019 and the charge sheet dated
7.11.2017 as well as the entire proceedings
of case No. 2436 of 2019 (State Vs.
Surendra Patel and others) arising out of
case crime No. 193 of 2017 u/s 188 IPC,
Police Station Kotwali, District Varanasi,
pending in the court of Additional Civil
Judge (JD)-V/J.M., Varanasi.

Brief facts of the case:-

3. FIR of the present case was
lodged
on
20.9.2017
for
offence
punishable under section 188 IPC against
the applicant and ten others and 500
unknown persons and according to the
FIR on 20.9.2017 at about 11:50 am
applicant
and
other
accused
were
agitating against the government and they
in spite of the restrictions laid the
procession and therefore, they violated
the provisions of section 144 Cr.P.C. and
thus committed offence under section 188
IPC.

4. After registration of the FIR
investigation was commenced and after
investigation charge sheet has been filed
against the applicant and others on
7.11.2017 under section 188 IPC and after
submission of charge sheet court concerned
took the cognizance on 9.9.2019 and issued
summons.

5. Hence, the instant application.

Argument advanced on behalf of the
applicant:-

6. Learned counsel for the applicant
submitted that only due to political
vendetta, applicant has been roped in the
present case alongwith others on the basis
of false allegations.

7. He further submitted, applicants and
others carried out a peaceful procession and
merely by doing so it can not be said that
they committed offence under section 188
IPC.

8. He further submitted that mere
violation of section 144 Cr.P.C does not
attract the provisions of section 188 IPC
and for offence punishable under section
188 IPC it is also necessary that the alleged
disobedience committed by an accused
must cause or tends to cause obstruction,
annoyance or injury or risk of obstruction,
annoyance or injury to any person lawfully
employed.

9. He further submitted that from the
evidence collected by the Investigating
Officer during investigation, it could not be
reflected that either applicant or any other
accused caused or tended to cause any
obstruction or injury to any person lawfully
employed but inspite of that charge sheet
under section 188 IPC has been filed
against the applicant and court concerned
also took the cognizance and issued
summons on 9.9.2019.

10. He further submitted that even as
per section 195(1)(a)(i) Cr.P.C., no court
shall take cognizance for an offence
punishable under section 178 to 188 (both
inclusive) of the IPC except on the
complaint in writing made by a public
servant
concerned
and
therefore,
cognizance and summoning order dated
9.9.2019 is illegal as in the present matter
admittedly court concerned took the
cognizance for offence under section 188
IPC on the police report submitted u/s
173(2) Cr.P.C.

11.
He
further
submitted
that
therefore,
considering
the
facts
and
556 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances of the case argued above,
cognizance and summoning order dated
9.9.2019 as well as charge sheet filed
against the applicant dated 7.11.2017 and
entire proceeding pending against the
applicant are bad and are liable to be
quashed.

Argument advanced on behalf of the
State:-

12. Per contra, learned Additional
Advocate General submitted that no doubt
by virtue of section 195(1)(a)(i) Cr.P.C. no
Court can take cognizance on a police
report submitted under section 173(2)
Cr.P.C. for offence under section 188 IPC
and Court can take cognizance for offence
under section 188 IPC only on written
complaint
made
by
public
servant
concerned and therefore, cognizance and
summonig order dated 9.9.2019 appears to
be illegal but he further submitted that the
charge sheet filed against the applicant and
others on 7.11.2017 cannot be said to be
illegal and therefore, same should not be
quashed.

13. He further submitted that offence
under section 188 IPC is cognizable
offence and therefore, neither lodgement of
the FIR nor investigation with regard to the
offence under section 188 IPC is barred and
therefore, if after registration of the FIR
under section 188 IPC, investigation has
been conducted then it cannot be said that
entire investigation is bad including charge
sheet.

14.
He
further
submitted
that
investigation
of
a
case
and
taking
cognizance are two entirely different
matters and even if cognizance is barred
then also it cannot be said that investigation
was also barred.

15. He further submitted that in the
present matter, however, considering the
provisions of Section 195 (1)(a)(i) Cr.P.C.
charge sheet should not be forwarded to the
court concerned and instead of forwarding
the charge sheet to the court public servant
concerned should file written complaint on
the basis of investigation conducted by the
Investigating Officer but merely due to this
reason chargesheet cannot be said to be
bad.

16. He further submitted that if charge
sheet of the present case prepared by the
Investigating Officer after the investigation
is quashed then entire material collected by
Investigating Officer during investigation
will also be automatically quashed and
thereafter, there will be no material before
the public servant concerned to file written
complaint against the applicant as required
under section 195(1)(a)(i) Cr.P.C.

17. He further submitted that however
charge sheet of the present case can be
quashed if from the material collected
during investigation no offence under
section 188 IPC is made out against the
applicant but from the FIR and statements
of
the
witnesses
recorded
during
investigation including the statement of the
informant it is apparent that applicant and
others, in spite of request made by police
officers, continued to make agitation against
the government and laid the procession and
therefore, violated the provisions of section
144 Cr.P.C. and it cannot be said that their
disobedience did not cause any annoyance or
obstruction to public servant and therefore,
from this angle too charge sheet cannot be
quashed.
He
placed
reliance
on
the
judgement of Apex Court passed in case of
State of Maharashtra and another Vs.
Sayyed Hassan Sayyed Subhan and others
(2019) 18 SCC 145.
9 All. Ajay Rai Vs. State of U.P. & Anr.
557

18.
He
further
submitted
that
therefore, considering the provisions of
section 195 (1)(a)(i) Cr.P.C. this Court,
however, may quash the cognizance and
summoning order dated 9.9.2019 but
charge sheet filed against the applicant
should not be quashed and if State wants
then on the basis of investigation conducted
by the Investigating Officer public servant
can file written complaint against the
applicant and court concerned can took
cognizance, in accordance with law.

Analysis:-

19. I have heard learned counsel for
both the parties and perused the record of
the case.

20. From perusal of the record it
reflects that charge sheet has been filed
against the applicant for offence under
section 188 IPC and thereafter court
concerned took the cognizance and issued
summons on 9.9.2019 on the police report
submitted under section 173(2) Cr.P.C.
therefore, it is apparent that cognizance has
been taken by the court concerned on the
police report and not on the written
complaint filed by the public servant.

21.
As
per
section
195(1)(a)(i)
Cr.P.C., no court shall take cognizance of
any offence punishable under sections 172
to 188 (both inclusive) of the IPC except on
the complaint in writing made by the public
servant concerned or of some other public
servant to whom he is administratively
subordinate, therefore, from perusal of the
statutory provisions of law, it is crystal
clear that a Court can not take cognizance
for an offence under section 188 IPC on the
police report submitted under section
173(2) Cr.P.C. therefore, cognizance and
summoning order dated 9.9.2019 and
proceedings pending against applicant
before the court concerned are bad in the
eyes of law.

22. Further, however, as offence
punishable under section 188 IPC is
cognizable offence and therefore, it cannot
be held that investigation of the case was
bad. Further investigation of the case and
taking cognizance are two different matters
and even if cognizance is barred then also it
cannot be said that investigation was also
barred and therefore, it cannot be said that
as on the charge sheet cognizance can not
taken, therefore, charge sheet is also bad.

23. This Court finds merit in the
submission advanced by learned AAG that
if charge sheet of the present case has been
quashed then entire material collected by
investigating officer will also be quashed
and therefore, no material will be available
before the public servant to file complaint
as required under section 195(1)(a)(i)
Cr.P.C., therefore, from this angle too
charge sheet of the present case cannot be
quashed on the ground that cognizance was
barred.

24. Now, it is to analyze whether
charge sheet filed against applicant can be
quashed on the ground that from the
material collected by investigating officer
during investigation no offence under
section 188 IPC is made out. To analyze
the same it will apposite to go through
section 188 IPC which runs as under:-

"188. Disobedience to order duly
promulgated by public servant-

Whoever, knowing that, by an
order promulgated by a public servant
lawfully empowered to promulgate such
order, he is directed to abstain from a
certain act, or to take certain order with
558 INDIAN LAW REPORTS ALLAHABAD SERIES
certain property in his possession or under
his management, disobeys such direction,

shall, if such disobedience causes
or tends to cause obstruction, annoyance or
injury, or risk of obstruction, annoyance or
injury, to any person lawfully employed, be
punished with simple imprisonment for a
term which may extend to one month or
with fine which may extend to two hundred
rupees, or with both; and if such
disobedience causes or tends to cause
danger to human life, health or safety, or
causes or tends to cause a riot or affray,
shall be punished with imprisonment of
either description for a term which may
extend to six months, or with fine which
may extend to one thousand rupees, or with
both.

Explanation.- It is not necessary
that the offender should intend to produce
harm, or contemplate his disobedience as
likely to produce harm. It is sufficient that
he knows of the order which he disobeys,
and that his disobedience produces, or is
likely to produce, harm.

Illustration

An order is promulgated by a
public servant lawfully empowered to
promulgate such order, directing that a
religious procession shall not pass down a
certain street. A knowingly disobeys the
order, and thereby causes danger of riot. A
has committed the offence defined in this
section."

25. From perusal of section 188 IPC it
reflects
following
are
its
essential
ingredients:-

(i) Knowledge of the order
promulgated by a public servant directing
the accused to abstain from certain act;

(ii) Disobedience of such order
by the accused in such manner it causes or
tends to cause obstruction, annoyance or
injury or risk of obstruction, annoyance or
injury to any person lawfully employed and

(iii) If such disobedience causes
or tends to cause danger to human life,
health or safety or cause or tends to cause
a riot or affray.

26. Therefore, from the essential
ingredients of section 188 IPC it reflects,
mere
disobedience
of
the
order
promulgated by a public servant is not
sufficient to attract the provisions of
Section 188 IPC and for an offence under
section 188 IPC it is necessary that the
offender must cause or tend to cause
obstruction annoyance or injury or risk of
obstruction annoyance or injury to any
person
lawfully
employed
or
such
disobedience causes or tends to cause
danger to human life, health or safety or
cause or tend to cause riot or affray and it is
also necessary that the offender must had
the
knowledge
of
restriction
order
promulgated by a public servant.

27. In case at hand, it is not the case of
applicant that he was not having knowledge
of the restriction order passed by public
servant
under
section
144
Cr.P.C.,
therefore, first ingredient of section 188
IPC has been fulfilled.

28. Further, as far as ingredient Nos. 2
and 3 of section 188 IPC are concerned,
from the record, it reflects applicant and
others carried out a peaceful procession and
from the entire evidence available on
record collected during investigation by the
Investigating Officer it could not be
reflected that by disobeying the restrictive
order promulgated under section 144
Cr.P.C. applicant caused or tended to cause
9 All. Shivam & Ors. Vs. State of U.P. & Anr.
559
obstruction, annoyance or injury or risk of
obstruction, annoyance or injury to any
person lawfully employed and it also could
not be reflected that such disobedience
caused or tended to cause danger to human
life, health or safety or caused or tends to
cause riot or affray, therefore, prima facie,
it reflects, essential ingredient Nos. 2 and 3
of Section 188 IPC are not fulfilled and
therefore, offence punishable under section
188 IPC is not made out against applicant.

29. Further, however, learned AAG
placed reliance on the judgement of the
Apex Court passed in case of Sayyed
Hassan (supra) but facts of that case were
distinguishable from the facts of present
case. In that case prohibitory order was
passed by Commissioner Food and Safety
and therefore, Apex Court after considering
the third ingredient of Section 188 IPC held
that disobedience of such order attracts the
provision
of
Section
188
IPC.
30.
Therefore, considering the facts of the
present case it is apparent that on the basis
of evidence collected by the Investigating
Officer, no offence punishable under
section 188 IPC is made out against the
applicant and though charge sheet of the
present case cannot be quashed on the
ground that cognizance was barred by
virtue of section 195(1)(a)(i) Cr.P.C. but on
this ground charge sheet can very well be
quashed. Law is settled, if evidence
collected during investigation does not
disclose alleged offence then charge sheet
can be quashed (See: State of Haryana
and others Vs. Bhajan Lal and others
1992 Supp (1) SCC 335).

31. Therefore, from the discussion
made above, in my view, cognizance and
summoning order dated 9.9.2019 as well as
charge sheet filed against the applicant and
proceeding pending against the applicant
are bad and are liable to be quashed.

32. Accordingly, the cognizance and
summoning
order
dated
9.9.2019,
chargesheet filed against the applicant and
proceeding pending against him are,
hereby,
quashed.
33.
The
instant
application u/s 528 BNSS stands allowed.
---------
(2025) 9 ILRA 559
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2025

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Application U/S 482 No. 15400 of 2018

Shivam & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Mahipal Singh

Counsel for the Opposite Parties:
G.A., Rajesh Kumar Pandey

Issue for consideration
Matters pertain to quashing the impugned
charge sheet

Headnotes
Indian Penal Code-sec 406-Applicant nos.1
and 3 are the real brothers- Applicant nos.2 and
4 are mother and father of Applicant nos.1 and
3-sale deed contains a general stipulation -any
loan against the property in question would be
paid by the purchaser-loan amount against the
property in question have been paid to the bank
and no dues certificate has been issued-no
entrustment of the property by the informant to
the Applicants- ownership was transferred by
sale transaction-any condition of sale contract is
violated by any party to the contract-the liability
would be a civil liability and no offence under