Neutral Citation No. - 2025:AHC:145431 Court No. - 77 Case :- APPLICATION U/S 482 No. - 3779 of 2025 Applicant :- Abdul Gani Opposite Party :- State of U.P. and Another Counsel for Applicant :- Irshad Ahmad Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard Sri Irshad Ahmad, learned counsel for the applicant and learned AGA for the State. 2. The present application under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings of case arising out of Case Crime No. 104 of 2024 (State Vs. Abdul Gani and another), under Section 188 IPC and Section 128 of Representation of People Act and Section 66 of Information Technology (Amendment) Act, Police Station Nafganj, District Moradabad, pending in the court of Chief Judicial Magistrate, Moradabad, as well as charge-sheet dated 02.06.2024 and cognizance order dated 02.06.2024, passed in the aforesaid case. 3. Learned counsel for the applicant has submitted that in view of the bar prescribed under Section 195 Cr.P.C., the prosecution of applicant for the offence under Section 188 IPC, is permissible only on a complaint in writing made by the competent officer, whose order could have been violated by the accused. The prosecution for offence under Section 188 IPC cannot be initiated on a police report. It has been submitted that cognizance for offence under Section 188 IPC against the applicant, is wholly against the law. 4. Insofar as the offence under Section 128 of the Representation of People Act is concerned, learned counsel for the applicant has submitted that, as per the provisions contained therein, the said section is applicable only to an officer, clerk, agent, or any other person who 2. is entrusted with duties relating to the recording or counting of votes at an election, whereas the applicant, being merely a voter, does not fall within the ambit of the said provision. Accordingly, the offence under Section 128 is not made out against the applicant." 5. In sofar as Section 66 of Information Technology (Amendment) Act is concerned, learned counsel for applicant has submitted that there is hardly any evidence collected by the concerned Investigating Officer during investigation in respect of any photograph that was made viral by applicant over any social media platform but without considering the said facts, chargesheet has been submitted over, learned court concerned took cognizance of offence vide order dated 02.06.2024 and as such, the same may be quashed. 6. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition and submitted that so far the offence under Section 188 IPC is concerned, the cognizance for the same is permissible only on a complaint in writing by the competent officer, as prescribed under Section 195 Cr.P.C and offence under Section 128 of Representation of People Act shall only be applicable upon the concerned officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election. and thus, the summoning of applicant for the offence under Section 188 IPC and Section 128 of Representation of People Act, does not appear in accordance with law. In sofar as the summoning and proceedings against the applicant under Section 66 of Information Technology (Amendment) Act is concerned, learned AGA submitted that whether the offence under Section 66 of Information Technology (Amendment) Act is made out or not, that can be decided by learned trial court concerned after taking evidence and at this stage, matter cannot be examined meticulously. 7. I have considered rival submissions and perused the record. 3. 7. Before proceeding further, it would be apposite to quote Section 195 Cr.P.C., which reads as under:- "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) 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 of some 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 sub- clause (i) or sub-clause (ii), 1 [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.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: 4. Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appellable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed." 8. Thus, in respect of offences punishable under Section 188 IPC, the Court can take cognizance only on a complaint in writing made by the public servant concerned or some public servant to whom he administratively subordinate. In the instant matter, admittedly no such complaint of public servant concerned has been filed and the cognizance has been taken on the charge-sheet submitted by the police. The charge-sheet cannot be treated to be a complaint, as envisaged under section 195 Cr.P.C. and as such, taking cognizance for offence under Section 188 IPC by the learned court concerned, is hit by Section 195 Cr.P.C. and, therefore, the order taking cognizance for offence under Section 188 IPC against the applicant on a police report, is not sustainable and the same is liable to be set aside. 5. 9. In sofar as the offence under Section 128 of Representation of People Act is concerned, this Court finds substance in the submission of learned counsel for the applicant that the said provision is attracted only in respect of an officer, clerk, agent or any other person who is engaged in the discharge of duties connected with the recording or counting of votes at an election. The applicant, admittedly, was only a voter and was not assigned any duty in relation to the conduct of the election. Hence, the essential ingredients of Section 128 are not satisfied in the present case and, accordingly, the said offence cannot be said to have been made out against the applicant. Section 128 of Representation of People Act is being quoted hereinbelow:- "128. Maintenance of secrecy of voting.— (1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy. Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States. (2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both." 10. So far the offence under Section 66 of Information Technology (Amendment) Act is concerned, the same is a disputed question of fact, and would involve appreciation of evidence and at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial. 11. In view of the aforesaid discussions, cognizance of offence taken vide order dated 03.07.2024 under Section 188 IPC and Section 128 of Representation of People Act, are not sustainable in the eye of law 6. and as such, learned court concerned is hereby directed to proceed with Case No. 9427 of 2024 (State Vs. Abdul Gani and another), arising out of Case Crime No. 104 of 2024 only in respect of Section 66 of Information Technology (Amendment) Act only. 12. Accordingly, the instant application is allowed in part. Order Date :- 22.8.2025 Vivek Kr. (Saurabh Srivastava, J.) Digitally signed by :- VIVEK KUMAR High Court of Judicature at Allahabad