# Ashish Kumar Tiwari @ Rahul & Ors v. State of U.P & Anr. Opp. Parties

- **Citation:** (2024) 6 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-14
- **Case number:** Application u/s 482 No. 2784 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-tiwari-rahul-ors-v-state-of-u-p-anr-opp-parties-52126
- **Pages:** 13

## Headnote

Law
-
Indian
Penal
Code,1860 - Sections 143, 147, 281,
283, 188 & 269 - Disaster Management
Act,
2005:
Section
51(b);
Code
of
Criminal Procedure: Section 195(1) - No
Court shall take cognizance of any
offence u/Ss 172 to 188 I.P.C. except
upon a complaint in writing of the public
servant concerned or of some other
public
servant
to
whom
he
is
administratively subordinate. (Para 16)

It is clear that the F.I.R. was registered without
jurisdiction as Section 188 of I.P.C. is described
as a non-cognizable offence in the penal code.
If any offence under any other law, if
punishable for less than three years or with fine
which shall be considered as non- cognizable,
bailable and triable by the Magistrate of First
Class. Thus, taking cognizance u/s 188 I.P.C. is
also without jurisdiction. (Para 16, 24)
A court cannot take cognizance of an offence
u/s 188 IPC without a written complaint from
the concerned public servant. The absence of
such a complaint in the current case makes the
cognizance
and
summoning
order
dated
13.09.2022 legally unsustainable. (Para 20)

B. It is a well-recognised canon of
interpretation that provision curbing the
general jurisdiction of the court must
normally
receive
strict
interpretation
unless the statute or the context requires
otherwise. Even if the clause is capable of two
interpretation Court is inclined to choose the
narrower interpretation for obvious reasons.
Section 190 of the Code empowers "any
magistrate of the first class" to take cognizance
of "any offence" upon receiving a complaint, or
police report or information or upon his own
knowledge. Section 195 restricts such general
powers of the magistrate, and the general right
of a person to move the Court with a complaint
is to that extent curtailed. (Para 21)

C. The investigation of non-cognizable
offence
by
the
police
without
prior
permission of the competent Magistrate is
illegal. Even mere accepting the charge sheet
by the Magistrate and taking the cognizance of
the offence does not validate the proceeding.
Investigation into the non-cognizable offence
without written order of the Magistrate is strictly
contrary to the provision of this Section. (Para
27)

As per Section 155(2) of Cr.P.C., the police have
no right or jurisdiction to investigate the matter,
without prior permission of the Magistrate, who
has got jurisdiction to try those offences.
Therefore, the entire charge sheet filed by the
police is vitiated by serious incurable defects
and procedural irregularities. (Para 28)

D. Despite the gravity of the alleged
offences,
the
failure
to
adhere
to
procedural safeguards undermines the
integrity of the legal process. While the
police may have acted in good faith to prevent
potential violations of law and order, their
actions, including the registration of the FIR and
filing of the charge sheet, were not in strict
compliance with the legal requirements outlined
in relevant judicial precedents. (Para 36, 37)
156

## Text

_Characters 0–39,935 of 42,433. This is a partial read: ask again with offset=39935 for what follows._

6 All. Ashish Kumar Tiwari @ Rahul & Ors. Vs. State of U.P. & Anr.
155
46. The Senior Registrar of this
Court is directed to transmit a copy of this
judgment and order to the learned District
Judges and Chief Judicial Magistrate/Chief
Metropolitan Magistrate of all the District
Courts of Uttar Pradesh immediately for
necessary compliance and information.
----------
(2024) 6 ILRA 155
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED LUCKNOW 14.06.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application u/s 482 No. 2784 of 2024

Ashish Kumar Tiwari @ Rahul & Ors.
 ...Applicants
Versus
State of U.P & Anr. ...Opp. Parties

Counsel for the Applicants:
Manuvendra Singh

Counsel for the Opp. Parties:
G.A.

A.
Criminal
Law
-
Indian
Penal
Code,1860 - Sections 143, 147, 281,
283, 188 & 269 - Disaster Management
Act,
2005:
Section
51(b);
Code
of
Criminal Procedure: Section 195(1) - No
Court shall take cognizance of any
offence u/Ss 172 to 188 I.P.C. except
upon a complaint in writing of the public
servant concerned or of some other
public
servant
to
whom
he
is
administratively subordinate. (Para 16)

It is clear that the F.I.R. was registered without
jurisdiction as Section 188 of I.P.C. is described
as a non-cognizable offence in the penal code.
If any offence under any other law, if
punishable for less than three years or with fine
which shall be considered as non- cognizable,
bailable and triable by the Magistrate of First
Class. Thus, taking cognizance u/s 188 I.P.C. is
also without jurisdiction. (Para 16, 24)
A court cannot take cognizance of an offence
u/s 188 IPC without a written complaint from
the concerned public servant. The absence of
such a complaint in the current case makes the
cognizance
and
summoning
order
dated
13.09.2022 legally unsustainable. (Para 20)

B. It is a well-recognised canon of
interpretation that provision curbing the
general jurisdiction of the court must
normally
receive
strict
interpretation
unless the statute or the context requires
otherwise. Even if the clause is capable of two
interpretation Court is inclined to choose the
narrower interpretation for obvious reasons.
Section 190 of the Code empowers "any
magistrate of the first class" to take cognizance
of "any offence" upon receiving a complaint, or
police report or information or upon his own
knowledge. Section 195 restricts such general
powers of the magistrate, and the general right
of a person to move the Court with a complaint
is to that extent curtailed. (Para 21)

C. The investigation of non-cognizable
offence
by
the
police
without
prior
permission of the competent Magistrate is
illegal. Even mere accepting the charge sheet
by the Magistrate and taking the cognizance of
the offence does not validate the proceeding.
Investigation into the non-cognizable offence
without written order of the Magistrate is strictly
contrary to the provision of this Section. (Para
27)

As per Section 155(2) of Cr.P.C., the police have
no right or jurisdiction to investigate the matter,
without prior permission of the Magistrate, who
has got jurisdiction to try those offences.
Therefore, the entire charge sheet filed by the
police is vitiated by serious incurable defects
and procedural irregularities. (Para 28)

D. Despite the gravity of the alleged
offences,
the
failure
to
adhere
to
procedural safeguards undermines the
integrity of the legal process. While the
police may have acted in good faith to prevent
potential violations of law and order, their
actions, including the registration of the FIR and
filing of the charge sheet, were not in strict
compliance with the legal requirements outlined
in relevant judicial precedents. (Para 36, 37)
156 INDIAN LAW REPORTS ALLAHABAD SERIES
The absence of a written complaint from the
concerned public servant for the offence u/s 188
IPC
violates
the
mandatory
procedural
requirement u/s 195(1)(a)(i) Cr.P.C. Therefore,
the cognizance of this offence is legally
unsustainable. The allegations u/Ss 143, 147,
281, 283, and 269 IPC lack specific and
concrete evidence. The FIR and charge sheet do
not provide sufficient proof to substantiate the
charges. (Para 38)

E. Scope and ambit of section 482 Cr.PC -
The power of High Court is very wide but
should be exercised very cautiously to do
real and substantial justice for which the
court alone exists - Circumstances under
which the extra ordinary power of the court
inherent therein as provisioned in the said
section of the Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court,
and
(iii) to otherwise secure the ends of justice.
(Para 39, 43)

A wide discretion has been given as to
grant or refusal of process and it must be
judicially exercised. A person ought not to be
dragged into court merely because a complaint
has been filed. If a prima facie case has been
made out, the Magistrate ought to issue process
and it cannot be refused merely because he
thinks that it is unlikely to result in a conviction.
(Para 40)

The
words
"sufficient
ground
for
proceeding" appearing in Section 204 are
of immense importance. A fortiori, the
order would be bad in law if the reason
given turns out to be ex facie incorrect. It
is these words which amply suggest that an
opinion is to be formed only after due
application of mind that there is sufficient basis
for proceeding against the said accused and
formation of such an opinion is to be St.d in the
order itself. The order is liable to be set aside if
no reason is given therein while coming to the
conclusion that there is prima facie case against
the accused, though the order need not contain
detailed reasons. (Para 40)

F. Words & Phrases - 'complaint' - Code of
Criminal
Procedure:
Section
2(d)
-
"complaint" means any allegation made orally or
in writing to a Magistrate, with a view to his
taking action under this Code, that some
person, whether known or unknown, has
committed an offence, but does not include a
police report. (Para 17)

In view of the present facts and circumstances
of the case, the investigation done by the police
in this case is without jurisdiction and based on
such invalid investigation report, the cognizance
taken by the learned Magistrate is also illegal.
Secondly, the entire proceeding before the
learned
Magistrate is vitiated
by serious
incurable defects. (Para 44)

Application allowed. (E-4)

Precedent followed:

1. Sachida Nand Singh & anr. Vs St. of Bihar &
anr., (1998) 2 SCC 493 (Para 21)

2. Daulat Ram Vs St. of Pun., AIR 1962 SC 1206
(Para 22)

3. M.S. Ahlawat Vs St. of Har. & anr., AIR 2000
SC 168 (Para 23)

4. Inder Mohan Goswami Vs St. of Uttaranchal,
(2007) 12 SCC 1 (Para 39)

5. Lalankumar Singh & ors. Vs St. of Mah., 2022
SCC OnLine SC 1383 (Para 40)

6. St. of Har. Vs Bhajan Lal, 1992 Supp (1) SCC
335 (Para 41)

7. R.P. Kapoor Vs St. of Pun., AIR 1960 S.C. 866
(Para 42)

8. St. of Bihar Vs P.P. Sharma, 1992 SCC (Crl.)
192 (Para 42)

9. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., 2005 SCC (Cri.) 283 (Para
42)

10. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah., AIR 2021 SC 1918 (Para 42)

11. S.W. Palankattkar & ors. Vs St. of Bihar,
2002 (44) ACC 168 (Para 43)
6 All. Ashish Kumar Tiwari @ Rahul & Ors. Vs. State of U.P. & Anr.
157
Present application seeks staying the
cognizance and summoning order dated
13.09.2022, passed by the court of Civil
Judge (Senior Division) / F. T. C. IInd
Pratapgarh.

(Delivered by Hon'ble Shamim Ahmed, J.)

 1. Heard Shri Manuvendra Singh,
learned counsel for the applicants, Shri
Ashok Kumar Singh, learned A.G.A-I for
the State-opposite parties and perused the
material placed on record.

2. The instant application under
Section 482 Cr.P.C. has been filed on
behalf of the applicant, namely- Ashish
Kumar Tiwari @ Rahul and 27 others with
a prayer to stay the cognizance and
summoning order dated 13.09.2022 passed
by the court of Civil Judge (Senior
Division) / F. T. C. IInd Pratapgarh, which
has been taken on the charge sheet dated
06.08.2022, arising out of the Case Crime
No.0106 of 2021, under section 143, 147,
281, 283, 188, 269, I.P.C. & 51(b) Disaster
Management Act, 2005, Police Station
Kohandaur, District-Pratapgarh with a
further prayer seeking any other order or
direction this Court may kindly pass.

3. Learned Counsel for the
applicants
submitted
that
a
First
Information Report (FIR) was lodged at the
police station Kohandaur Pratapgarh by
opposite party no.2, on 30.05.2021 at 23:31
and as per Prosecution Story information
was received through an informer that
some people are going to take out a candle
march from Shivpur Khurd and block the
road of Kohandaur, Kandharpur in front of
Shivpur village regarding the arrest of the
accused related to the murder of Arvind
Dubey in village Shivpur Khurd. On the
information, the opposite party No.2 left
from Kandharpur with his associates and
reached village Shivpur Tiraha and saw that
the accused persons alongwith 50-60
persons (name and address unknown) from
village Shivpur Khurd were violating the
Covid-19 guidelines without following
social distancing and without permission
people were coming carrying placards with
anti-police and anti-police slogans in their
hands and raising anti-police slogans.
When they saw police coming to Shivpur
intersection they sat on the road going to
Kohdaur Near Khushhali Baba Temple and
blocked the Kandharpur Road.

4. Learned Counsel for the
applicants further submitted that the
statement of the complainant was recorded
by the investigation officer under section
161 Cr.P.C. in which the complainant
reiterated the same version of the FIR dated
30.05.2021.

5. Learned Counsel for the
applicants further submitted that the
statement
of
the
witnesses
namely
Constable Amit Kumar PNO 192612874,
Cons. Vivek Pratap Kushwaha, PNO
192612630, Sub Inspector Virendra Kumar
Tripathi PNO- 880897817, & Sub Inspector
Vijay Kumar PNO-0902340147, have been
recorded by the Investigating Officer under
section 161 Cr.P.C. their statements were
also similar to the version of the FIR dated
30.05.2021.

6. Learned Counsel for the
applicants further submitted that the
statements of the independent witnesses,
namely-Manoj Kumar Dubey Son of
Indramani, Satish Dubey Son of Indramani
Dubey, have
been
recorded
by
the
Investigating Officer under section 161
Cr.P.C. wherein they stated that Shanu
Dubey son of Nandu Dubey was not
present on the spot at the time of incident
158 INDIAN LAW REPORTS ALLAHABAD SERIES
and on basis of their statements name of the
accused Shanu dubey was removed.

7. Learned Counsel for the
applicants further submitted that the
applicants were violating the Covid-19
Guidelines which were promulgated by
District Magistrate, Pratapgrh, thus, the
District Magistrate, Pratapgarh was duty
bound to make a complaint to the learned
Area Judicial Magistrate concerned either
under his own signature or through any
authorized official subordinate to him, but
in this case a police has been lodged FIR
dated 30.05.2021 and also submitted Police
Report dated 06.08.2022 against the present
applicants and it is very surprising that
concerning Trail Court without applying its
own
mind,
issued
summoning dated
13.09.2022 in absence of a separate
complaint
under
section
195(1)(a)(i)
Cr.P.C. which is inevitable for the purpose
of taking cognizance and putting the
accused to trial.

8. Learned counsel for the
applicants further submitted that the F.I.R.
was registered under Sections 188 I.P.C.,
which is without jurisdiction as Section 188
of I.P.C. is described as non cognizable
offence in the penal code and Section
195(1) Cr.P.C. specifically provides that no
court shall take cognizance of any offence
under Sections 172 to 188 except upon a
complaint in writing of the public servant
concerned or of some other public servant
to whom he is administratively subordinate.
Thus, taking cognizance under Section 188
I.P.C. is also without jurisdiction.

9. Learned counsel for the
applicants further submitted that as per
Section 2(d) Cr.P.C., the opposite party
no.2 had no right to lodge the FIR for
offences as mentioned above rather he had
to file the complaint only before the
concerned court. He further submitted that
not only the FIR was registered but also the
investigation was carried out and charge
sheet
was
submitted
without
any
jurisdiction.

10. Learned counsel for the
applicants further submitted that even if the
entire story of the prosecution is accepted
as true (only for the sake of argument
though not admitted), Section 188 of I.P.C.
is not made out against the applicants.

11 . Learned counsel for the
applicants further submitted that as per
Section 190 Cr.P.C., it is evident that the
concerned Magistrate can take cognizance
of any offence on three conditions i.e. (i)
Upon receiving a complaint of facts, (ii)
Upon a police report, and (iii) Suo-moto.

12. Learned counsel for the
applicants further submitted that the
impugned order dated 13.09.2022 passed
by the court of Civil Judge (Senior
Division) / F. T. C. IInd Pratapgarh, by
which the applicants were summoned, is
also non speaking as the Magistrate has not
considered any material available before
him while summoning the applicants to
face the trial. As such, the impugned order
dated 13.09.2022 on the face of record
appears to be unjustified, arbitrary, illegal
and is passed without application of
judicial mind, therefore, the same is liable
to be set aside by this Court and the present
application under Section 482 Cr.P.C. is
liable to be allowed.

13. On the other hand, learned
A.G.A-I. for the State opposed the
argument advanced by learned counsel for
the applicants and submits that the
impugned cognizance and summoning
6 All. Ashish Kumar Tiwari @ Rahul & Ors. Vs. State of U.P. & Anr.
159
order dated 13.09.2022 is rightly passed
and no interference by this Court is
required in the instant matter, therefore, the
instant application is liable to be dismissed
at this stage only.

14. On careful perusal of the
averments made in this application under
Section 482 Cr.P.C. as well as after hearing
the learned counsel for the parties, the
factual
matrix
disclose
that
a
First
Information Report (FIR) was lodged at the
police station Kohandaur Pratapgarh by
opposite party no.2, on 30.05.2021 at 23:31
and as per Prosecution Story information
was received through an informer that
some people are going to take out a candle
march from Shivpur Khurd and block the
road of Kohandaur, Kandharpur in front of
Shivpur village regarding the arrest of the
accused related to the murder of Arvind
Dubey in village Shivpur Khurd. On the
information, the opposite party No.2 left
from Kandharpur with his associates and
reached village Shivpur Tiraha and saw that
the accused persons alongwith 50-60
persons (name and address unknown) from
village Shivpur Khurd were violating the
Covid-19 guidelines without following
social distancing and without permission
people were coming carrying placards with
anti-police and anti-police slogans in their
hands and raising anti-police slogans.
When they saw police coming to Shivpur
intersection they sat on the road going to
Kohdaur Near Khushhali Baba Temple and
blocked the Kandharpur Road..

15. First of all, it would be relevant
to quote Section 195(1) Cr.P.C., which is
being
reproduced
hereunder:-

"195(1) Cr.P.C. :- No Court shall
take cognizance -

 (a)
 (I) of any offence punishable
under sections 172 to 188 (both inclusive)
of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or
attempt to commit, such offence, or

 (iii) of any criminal conspiracy to
commit such offence, except on the
complaint in writing of the public servant
concerned or other public servant to whom
he is administratively subordinate;

 (b)

 (I) of any offence punishable
under any of the following sections of the
Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199,
200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been
committed in, or in relation to, any
proceeding in any Court, or

 (ii) of any offence described in
section 463, or punishable under section
471, section 475 or section 476 of the said
Code, when such offence is alleged to have
been committed in respect of a document
produced or given in evidence in a
proceeding in any Court, or

 (iii) of any criminal conspiracy to
commit, or attempt to commit, or the
abetment of, any offence specified in subclause (i) or sub-clause (ii),

 [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.]
[Substituted by Act 2 of 2006, Section 3 for
"except on the complaint in writing of that
Court, of of some other Court to which
160 INDIAN LAW REPORTS ALLAHABAD SERIES
that Court is subordinate" (w.e.f. 16-42006).]"

16. From perusal of the aforesaid
Section 195 (1) Cr.P.C., it is clear that the
F.I.R. was registered without jurisdiction as
Section 188 of I.P.C. is described as a noncognizable offence in the penal code
whereas it is specifically mentioned that no
Court shall take cognizance of any offence
under Sections 172 to 188 I.P.C. except
upon a complaint in writing of the public
servant concerned or of some other public
servant to whom he is administratively
subordinate. Thus, taking cognizance under
Section
188
I.P.C.
is
also
without
jurisdiction.

17. It would further be relevant to
quote Section 2(d) Cr.P.C. which is being
reproduced hereunder:-

 ""complaint"
means
any
allegation made orally or in writing to a
Magistrate, with a view to his taking action
under this Code, that some person, whether
known or unknown, has committed an
offence, but does not include a police
report."

18.

From
perusal
of
the
aforesaid Section 2(d) Cr.P.C., it is clear
that the opposite party no.2 had no right
to lodge the F.I.R. for offences as
mentioned above rather he had to file the
complaint only before the concerned
Magistrate.

19. It would also be relevant to
quote Section 188 of I.P.C., which is being
reproduced hereunder:-

 "Section
188
I.P.C.-
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
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 persons 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."

20. From perusal of the aforesaid
Section 188 I.P.C. read with Section
195(1)(a)(i) Cr.P.C. which mandates that no
court shall take cognizance of an offence
under section 188 IPC except on a written
complaint by the concerned public servant.
In this case, the absence of such a
complaint invalidates the cognizance of the
offence under this section. As provided by
section 195(1)(a)(i) Cr.P.C., a court cannot
take cognizance of an offence under section
188 IPC without a written complaint from
the concerned public servant. The absence
of such a complaint in the current case
makes the cognizance and summoning
order
dated
13.09.2022
legally
unsustainable.

21. Hon'ble the Supreme Court in
the case of Sachida Nand Singh and
6 All. Ashish Kumar Tiwari @ Rahul & Ors. Vs. State of U.P. & Anr.
161
Another Vs. State of Bihar and Another;
(1998) 2 SCC 493 was pleased to observe
para 7 as under:-

 "Even if the clause is capable of
two interpretation we are inclined to
choose the narrower interpretation for
obvious reasons. Section 190 of the Code
empowers "any magistrate of the first
class" to take cognizance of "any offence"
upon receiving a complaint, or police
report or information or upon his own
knowledge. Section 195 restricts such
general powers of the magistrate, and the
general right of a person to move the Court
with a complaint is to that extent curtailed.
It
is
a
well-recognised
canon
of
interpretation that provision curbing the
general jurisdiction of the court must
normally receive strict interpretation unless
the
statute
or
the
context
requires
otherwise."

22. Further, Hon'ble the Supreme
Court in the case of Daulat Ram Vs. State
of Punjab; AIR 1962 SC 1206 was pleased
to observe para 4 as under:-

 "Now the offence under s. 182 of
the Penal Code, if any, was undoubtedly
complete when the appellant had moved the
Tehsildar for action. Section 182 does not
require that action must always be taken if
the person who moves the public servant
knows or believes that action would be
taken. In making his report to the Tehsildar
therefore, if the appellant believed that
some action would be taken (and he had no
reason to doubt that it would not) the
offence under that section was complete. It
was therefore incumbent, if the prosecution
was to be launched, that the complaint in
writing should be made by the Tehsildar as
the public servant concerned in this case.
On the other hand what we find is that a
complaint by the Tehsildar was not filed at
all, but a charge sheet was put in by the
Station House Officer. The learned counsel
for the State Government tries to support
the action by submitting that s. 195 had
been complied with inasmuch as when the
allegations had been disproved, the letter of
the Superintendent of Police was forwarded
to the Tehsildar and he asked for "a
calendar". This paper was flied along with
the charge sheet and it is stated that this
satisfies the requirements of s. 195. In our
opinion, this is not a due compliance with
the provisions of that section. What the
section comtemplates is that the complaint
must be in writing by the public servant
concerned and there is no such compliance
in the present case. The cognizance of the
case was therefore wrongly assumed by the
court without the complaint in writing of
the public servant namely the Tehsildar in
this case. The trial was thus without
jurisdiction ab inito and the conviction
cannot be maintained."

23. Further, Hon'ble the Supreme
Court in the case of M.S. Ahlawat Vs. State
of Haryana and Another; AIR 2000 SC
168 was pleased to observe para 5 as
under:-

 "Chapter XI of IPC deals with
false evidence and offences against public
justice' and Section 193 occurring therein
provides for punishment for giving or
fabricating false evidence in a judicial
proceeding. Section 195 of the Criminal
Procedure Code (Cr.P.C.) provides that
where an act amounts to an offence of
contempt of the lawful authority of public
servants or to an offence against public
justice such as giving false evidence under
Section 193 IPC, etc. or to an offence
relating to documents actually used in a
court, private prosecutions are barred
162 INDIAN LAW REPORTS ALLAHABAD SERIES
absolutely and only the court in relation to
which the offence was committed may
initiate proceedings. Provisions of Section
195 Cr.P.C. are mandatory and no court
has jurisdiction to take cognizance of any
of the offences mentioned therein unless
there is a complaint in writing as required
under that Section. It is settled law that
every incorrect or false statement does not
make it incumbent upon the court to order
prosecution,
but
to
exercise
judicial
discretion to order prosecution only in the
larger interest of the administration of
justice."

24. Now coming to the provision
of first schedule of Cr.P.C., Section 188 of
Indian Penal Code is covered under the said
provision which is declared as noncognizable and bailable offence, and triable
by the Magistrate of the First Class. Like
wise classification of offence against other
laws in Cr.P.C., it also describes, if any
offence under any other law, if punishable
for less than three years or with fine which
shall be considered as non- cognizable,
bailable and triable by the Magistrate of
First Class.

25. On perusal of the above said
provisions, it is abundantly clear that the
offence registered against the applicant
under Section 188 of IPC is non-cognizable
in nature. Now, coming to Section 155(2)
of Cr.P.C. which reads as follows:

 "No
police
officer
shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial"

26. Particularly, Section 155(2)
mandates the police concerned that such
police officer shall investigate the noncognizable offence with the permission of the
Magistrate only. This Section describes that
no Police Officer shall investigate a noncognizable case without the order of the
Magistrate having power to try such case for
trial.

27. The provision in sub Section (2)
of Section 155 of Cr.P.C., for asking
permission of the Court to investigate a noncognizable offence is mandatory in nature.
Therefore,
the
investigation
of
noncognizable offence by the police without
prior permission of the competent Magistrate
is illegal. Even mere accepting the charge
sheet by the Magistrate and taking the
cognizance of the offence does not validate
the proceeding. Even subsequent permission by
the Magistrate also cannot cure the illegality. As
could be seen from Section 460 of Cr.P.C. these
defects of non- taking permission before
investigating a non- cognizable offence is also
not curable. Though the charge sheet is filed after
due investigation without prior permission of the
Court and that the Magistrate has accepted the
charge sheet and taken the cognizance, it does
not mean to show permission is granted by the
Magistrate to investigate such non- cognizable
offence. Therefore, investigation into the noncognizable offence without written order of the
Magistrate is strictly contrary to the provision of
this Section.

28. This Court further finds that the
above said two offences are non-cognizable
offences. Therefore, as per Section 155(2) of
Cr.P.C., the police have no right or
jurisdiction to investigate the matter, without
prior permission of the Magistrate, who has
got jurisdiction to try those offences.
Therefore, the entire charge sheet filed by the
police is vitiated by serious incurable defects
and procedural irregularities.

29. This Court also acknowledges the
serious nature of the allegations leveled
6 All. Ashish Kumar Tiwari @ Rahul & Ors. Vs. State of U.P. & Anr.
163
against the applicants under sections 143,
147, 281, 283 and 269 of the IPC, as well
as
Section
51(b)
of
the
Disaster
Management Act, 2005. However, upon
review
of
the
evidence
and
legal
framework surrounding the case, certain
critical procedural deficiencies have come
to light, thus, this Court deems it
appropriate to discuss the relevant sections
imposed upon the applicants in the present
case.

30. Section 143 IPC (Unlawful
Assembly): An assembly of five or more
persons is designated as unlawful if the
common object of the persons composing
that assembly is to:

 (a) Commit any mischief or
criminal trespass, or other offence;

 (b) Resist the execution of any
law, or legal process;

 (c) Commit any mischief or
criminal trespass, or other offence.

 In the present case, the FIR
alleges that the applicants were part of an
unlawful assembly violating COVID-19
guidelines. However, the prosecution must
establish that the assembly's common
object
was
illegal.
Without
specific
evidence of an illegal common object,
merely being present in a group does not
constitute an offence under this section.

31. Section 147 IPC (Rioting):
Rioting involves the use of force or
violence by an unlawful assembly or by
any member thereof in prosecution of the
common object of such assembly.

 Thus, to charge someone with
rioting under section 147 IPC, it must be
proven that the unlawful assembly used
force or violence. The FIR and subsequent
charge
sheet
must
provide
specific
instances
of
such
conduct.
General
allegations of rioting without concrete
evidence cannot sustain a charge under this
section.

32. Section 281 IPC (Danger or
Obstruction in Public Way or Line of
Navigation):

 Definition: Whoever causes any
danger, obstruction, or injury to any person
in any public way or public line of
navigation.

 Thus,
blocking
a
road
can
potentially fall under this section if it
causes
danger
or
obstruction.
The
prosecution
must
provide
evidence
showing
that
the
applicants'
actions
specifically
led
to
such
danger
or
obstruction. In this case, evidence must
demonstrate the direct result of the
applicants' actions causing danger or
obstruction.

33. Section 283 IPC (Danger or
Obstruction in Public Way): Definition:
Whoever, by doing any act, or by omitting
to take order with any property in his
possession or under his charge, causes, or
knowingly
or
negligently
causes,
obstruction, danger, or injury to any person
in any public way or public line of
navigation. Similar to section 281, this
section
emphasizes
the
injury
or
obstruction caused in a public way.
Concrete evidence of specific obstruction
or injury caused by the applicants is
necessary to support this charge.

34. Section 269 IPC (Negligent
Act Likely to Spread Infection of Disease
164 INDIAN LAW REPORTS ALLAHABAD SERIES
Dangerous to Life): Whoever unlawfully or
negligently does any act which is, and
which he knows or has reason to believe to
be, likely to spread the infection of any
disease dangerous to life.

 Though,
violating
COVID-19
guidelines could fall under this section if it
can be shown that the applicants' actions
were likely to spread the infection. The
prosecution must establish a direct causal
link between the applicants' conduct and
the potential spread of the disease. Mere
presence in a gathering without evidence of
actual spread or likelihood thereof is
insufficient.

35. Section 51(b) of the Disaster
Management Act, 2005: Punishment for
obstruction,
refusal
to
comply
with
directions of the central government or
state government, or national or state
authority.

 Thus, this section pertains to noncompliance with directives issued under the
Disaster Management Act. In this case, the
applicants are alleged to have violated
COVID-19 curfew guidelines issued by the
authorities.
The
prosecution
must
demonstrate that the applicants willfully
disobeyed such directives and that such
disobedience falls within the ambit of this
section.

36. The Court notes that the
registration of the FIR and subsequent
charge sheet by the police, without a
separate written complaint by the public
servant concerned as mandated by section
195(1)(a)(i) of the Criminal Procedure
Code, 1973, raises substantial procedural
irregularities. Despite the gravity of the
alleged offences, the failure to adhere to
procedural
safeguards
undermines
the
integrity of the legal process.

37. Furthermore, this Court finds
that while the police may have acted in
good faith to prevent potential violations of
law and order, their actions, including the
registration of the FIR and filing of the
charge sheet, were not in strict compliance
with the legal requirements outlined in
relevant judicial precedents.

38. The absence of a written
complaint from the concerned public
servant for the offence under Section 188
IPC violates the mandatory procedural
requirement under Section 195(1)(a)(i)
Cr.P.C. Therefore, the cognizance of this
offence is legally unsustainable. The
allegations under Sections 143, 147, 281,
283, and 269 IPC lack specific and
concrete evidence. The FIR and charge
sheet do not provide sufficient proof to
substantiate the charges.

39. Further, the Hon'ble Supreme
Court of India in the case Inder Mohan
Goswami
v.
State
of
Uttaranchal
(2007)12 SCC 1 has held that it would be
relevant to keep into mind the scope and
ambit
of
section
482
Cr.PC
and
circumstances under which the extra
ordinary power of the court inherent therein
as provisioned in the said section of the
Cr.P.C. can be exercised, para 23 is being
quoted here under:-

 "23. This court in a number of
cases has laid down the scope and ambit of
courts powers under section 482 Cr.P.C.
Every High Court has inherent power to act
ex debito justitiae to do real and
substantial justice, for the administration of
which alone it exists, or to prevent abuse of
6 All. Ashish Kumar Tiwari @ Rahul & Ors. Vs. State of U.P. & Anr.
165
the process of the court. Inherent power
under section 482 Cr.P.C. can be exercised:

 (i) to give effect to an order under
the Code;

 (ii) to prevent abuse of the
process of court, and

 (iii) to otherwise secure the ends
of justice."

40. Further, Hon'ble the Supreme
Court of India in the case of Lalankumar
Singh
and
Others
vs.
State
of
Maharashtra reported in 2022 SCC
Online SC 1383 has specifically held in
paragraph No.38 that the order of issuance
of process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. Paragraph No.38
of Lalankumar Singh and Others (supra) is
being quoted hereunder:-

 "38. The order of issuance of
process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. The formation of
such an opinion is required to be stated in
the order itself. The order is liable to be set
aside if no reasons are given therein while
coming to the conclusion that there is a
prima facie case against the accused. No
doubt, that the order need not contain
detailed reasons. A reference in this respect
could be made to the judgment of this
Court in the case of Sunil Bharti Mittal v.
Central Bureau of Investigation, which
reads thus:

 "51. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding. This
section relates to commencement of a
criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to
whom it has been transferred under Section
192), upon a consideration of the materials
before him (i.e. the complaint, examination
of the complainant and his witnesses, if
present, or report of inquiry, if any), thinks
that there is a prima facie case for
proceeding in respect of an offence, he
shall issue process against the accused.

 52. A wide discretion has been
given as to grant or refusal of process and
it must be judicially exercised. A person
ought not to be dragged into court merely
because a complaint has been filed. If a
prima facie case has been made out, the
Magistrate ought to issue process and it
cannot be refused merely because he thinks
that it is unlikely to result in a conviction.

 53.
However,
the
words
"sufficient
ground
for
proceeding"
appearing in Section 204 are of immense
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.
The order is liable to be set aside if no
reason is given therein while coming to the
conclusion that there is prima facie case
against the accused, though the order need
not contain detailed reasons. A fortiori, the
order would be bad in law if the reason
given turns out to be ex facie incorrect."

41. Further, Hon'ble the Supreme
Court of India has provided guidelines in
case of State of Haryana Vs. Bhajan Lal
166 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in 1992 Supp (1) SCC 335 for the
exercise of power under Section 482
Cr.P.C. which is extraordinary power and
used separately in following conditions:-

 "102.(1) Where the allegations
made in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused."

 (2) where the allegations in the
First
Information
Report
and
other
materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police officers
under Section 156(1) of the Code except
under an order of a Magistrate within the
purview of Section 155(2) of the Code;

 (3) where the uncontroverted
allegations made in the FIR or 'complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused;

 (4) where the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code;

 (5) where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused;

 (6) where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party;

 (7) where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

42. Further the Hon'ble Supreme
Court has also laid down the guidelines
where the criminal proceedings could be
interfered and quashed in exercise of its
power by the High Court in the following
cases:- (i) R.P. Kapoor Vs. State of
Punjab, AIR 1960 S.C. 866, (ii) State of
Bihar Vs. P.P. Sharma, 1992 SCC
(Crl.)192, (iii) Zandu Pharmaceutical
Works Ltd. Vs. Mohd. Saraful Haq and
another, (Para-10) 2005 SCC (Cri.) 283
and (iv) Neeharika Infrastructure Pvt.
Ltd. Vs. State of Maharashtra, AIR 2021
SC 1918.

43. In S.W. Palankattkar &
others Vs. State of Bihar, 2002 (44) ACC
168, it has been held by the Hon'ble
Supreme Court that quashing of the
criminal proceedings is an exception than a
rule. The inherent powers of the High Court
itself envisages three circumstances under
which the inherent jurisdiction may be
exercised:-(i) to give effect an order under
the Code, (ii) to prevent abuse of the
process of the court ; (iii) to otherwise
secure the ends of justice. The power of
High Court is very wide but should be
6 All. Shiva Pankaj & Anr. Vs. State of U.P. & Anr.
167
exercised very cautiously to do real and
substantial justice for which the court alone
exists.

44. In view of the above said facts
and
circumstances
of
the
case,
the
investigation done by the police in this case
is without jurisdiction and based on such
invalid investigation report, the cognizance
taken by the learned Magistrate is also
illegal. Secondly, the entire proceeding
before the learned Magistrate is vitiated by
serious incurable defects.

45.