- 1 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR CRIMINAL PETITION NO.3220 OF 2025 BETWEEN: ANAND K.S. S/O.SIDDAPPA AGED ABOUT 45 YEARS OCCUPATION: MEMBER OF LEGISLATIVE ASSEMBLY KADUR CONSTITUTION CONSTITUENT ASSEMBLY R/AT NO.337/3, HALEPETE KADUR TOWN, KADUR TALUK CHIKKAMAGALURU DISTRICT-577 548 …PETITIONER (BY SRI RAKSHITH R., ADVOCATE) AND: STATE OF KARNATAKA REP. BY RANGE FOREST OFFICER RAVIRAJ M.K. HEAD OF FST-4 TEAM, KADUR CHIKKAMAGALURU DISTRICT-577 548 REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001 …RESPONDENT (BY SRI JAGADEESHA B.N., ADDITIONAL SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC. (UNDER SECTION 528 BNSS) PRAYING TO QUASH ENTIRE PROCEEDINGS AGAINST THIS PETITIONER IN CC.NO. 4599/2025 FOR THE OFFENCE PUNISHABLE UNDER SECTION 188 OF IPC PENDING ON THE FILE OF XLII ADDITIONAL CHIEF JUDICIAL MAGISTRATE AT BENGALURU. Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 THIS PETITION COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL ORDER This petition is filed by accused No.1 seeking to quash the proceedings in CC.No.4599/2025 for the offence punishable under Section 188 of IPC pending on the file of XLII Additional Chief Judicial Magistrate at Bengaluru. 2. It is the case of the petitioner that the complainant-Raviraju M.K., Chief of FST-04 Team and Deputy RFO of Social Sector, Kadur, filed a private complaint under Section 200 of Cr.PC. before I Additional Civil Judge and JMFC, Kadur. Learned Magistrate, vide its order dated 07.11.2024 transferred the said proceedings to XLII Additional Chief Judicial Magistrate at Bengaluru. This being the state of affairs, XLII Additional Chief Judicial Magistrate dispensed the examination of the complainant, who being a public servant and took cognizance of the offence punishable under Section 188 of IPC by order dated 06.02.2025. - 3 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 3. It is the vehement contention of learned counsel for petitioner that the cognizance so taken by XLII Additional Chief Judicial Magistrate is illegal, as there is no proper application of judicial mind and hence, the said order dated 06.02.2025 suffers from illegality and is liable to be set aside. It is the further contention of learned counsel for petitioner that the complainant is not the competent authority to file the complaint and moreover, the averments so made in the complaint run short to constitute an offence under Section 188 of IPC. Learned counsel further contends that to attract the provisions of Section 188 of IPC, the prosecution must fulfill the following necessary ingredients as contemplated therein: i) there must be an order promulgated by the public servant; ii) that such public servant is lawfully empowered to promulgate it; iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order to abstain from doing certain act or to take certain order with certain - 4 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 property in his possession and under his management had disobeyed; and iv) that such disobedience causes or tends to cause; (a) obstruction, annoyance or risk of it to any person lawfully employed or (b) danger to human life, health or safety, Riot or affray." 3.1 Under the circumstance, it is the vehement contention of learned counsel for petitioner that the complaint initiated by the complainant, who is incompetent and not the proper/ competent authority to file the complaint. Hence, the entire proceedings so initiated and cognizance taken is illegal, bad in law and the same deserves to be set aside and quashed. On these grounds, he seeks to allow his petition. 3.2 In support of his case, he relied upon the judgment of the Coordinate Bench of this Court in Crl.P.No.7228/2023 C/w. WP.No.1423/2023 [Decided on 27.02.2024]. - 5 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 4. Per contra, learned Additional Special Public Prosecutor for respondent sustains the impugned order on the ground that there can be delegation of power to lodge a complaint on behalf of the competent authority. Therefore, there is no illegality in the impugned order to warrant interference. On these grounds, he seeks dismissal of the petition. 5. Having heard learned counsel for petitioner and learned Additional Special Public Prosecutor for respondent, the point that requires to be considered is that - "Whether the cognizance taken for the offence punishable under Section 188 of IPC is sustainable in law?" 6. It is relevant to extract the provisions of Section 188 of IPC 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 - 6 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 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 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 trends 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." 7. A similar question, which is involved in this case, had come up before the Coordinate Bench of this Court in the case of SRI RAJASHEKHARANANDA SWAMIJI AND ANOTHER V. STATE OF KARNATAKA in WP.No.13328/2018 [Decided on 18.06.2021], whereby at paras-8 and 10, it is observed as under: "8. Reading of the above provision makes it clear that to take cognizance there should be - 7 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant. 10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy1, the Hon'ble Supreme Court held as follows: “8. 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 - 8 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 in Section 195(1)(b) of the Code of Criminal Procedure should be upheld.” (Emphasis supplied) 8. Further, the Coordinate Bench of this Court in the case of SRI BASANAGOUDA R. PATIL (YATNAL) vs. SRI SHIVANANDA S. PATIL in Crl.P.7526/2024 [Decided on 27.09.2024] has laid down the procedure to be followed at paras-10 and 11, which reads as under: "10. Therefore, the procedural drill would be this way: A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing - 9 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 the accused, take cognizance and regulate its procedure thereafter. 11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub- section (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023." 9. Under the circumstances, it is a settled law that complaint must be filed by the public servant, who promulgated the order and he cannot authorise any other person to do the task assigned to him. The complaint for the offence punishable under Section 188 of IPC ought to have been filed by the District Magistrate/District Commissioner, whose order has been disobeyed and not the complainant herein, who is a Range Forest Officer from - 10 - NC: 2025:KHC:12262 CRL.P No. 3220 of 2025 the Flying Squad Team (FST). Therefore, I am in agreement with learned counsel for petitioner that the cognizance taken by XLII Additional Chief Judicial Magistrate is clearly in violation of the procedures and guidelines as contemplated under Section 188 of IPC. Whereas, the contention of learned Additional Special Public Prosecutor that the complainant was delegated the powers, cannot be countenanced. 10. In view of the above discussions, the petition deserves to be allowed. Accordingly, I pass the following: ORDER i) This petition is allowed; ii) The proceedings in CC.No.4599/2025 pending on the file of XLII Additional Chief Judicial Magistrate at Bengaluru for the offence punishable under Section 188 of the Indian Penal Code, is hereby quashed. Sd/- (PRADEEP SINGH YERUR) JUDGE LB