HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No.6711/2025 Sunil Kumar S/o Shri Nand Kishore, Resident Of Brahamon Ka Mohalla, Narayan , Naraina, Jaipur, Rajasthan- 303348. ----Petitioner Versus 1. State Of Rajasthan, Through P.P. 2. Ghanshyam Maheshwari S/o Jagdish Narayan, Resident Of B-4, Shilp Colony, Jhotwara, District Jaipur ( Rajasthan). ----Respondents For Petitioner(s) : Ms. Anita Agarwal with Mr. Laxmikant For Respondent(s) : Mr. Amit Gupta, PP with Mr. Shubham Sain JUSTICE ANOOP KUMAR DHAND Order 01/11/2025 1. The instant criminal misc. petition has been preferred against the impugned order dated 18.09.2025 passed by the Judicial Magistrate, Sambhar Lake, Jaipur in the criminal case No.92/2019, by which the substance of accusation has been recorded under Section 188 and 149 IPC. 2. Learned counsel for the petitioner submits that as per the case of the prosecution, an order was passed by the Sub Divisional Magistrate on 16.03.2018, by which the permission was granted for passing of procession along with condition to use the sound system with volume less than of 80 decibels. Counsel submits that as per the case of the prosecution, the sound was exceeded and on this count alone, the FIR has been (2 of 4) [CRLMP-6711/2025] registered against the petitioner and other co-accused persons for the offences under Section 188 and 34 of the Indian Penal Code and after investigation, charge-sheet has been submitted and cognizance has been taken against the petitioner for the above stated offences. Counsel submits that as per Section 195 Cr.P.C., no cognizance can be taken for the offence punishable under Section 188 IPC unless a complaint in writing has been submitted by the public servant concerned or the person subordinate to such public servant. In the instant case, though the order passed by the SDO was alleged to have been violated by the petitioner, but the written complaint was not filed by the Sub Divisional Magistrate, rather the complaint was submitted by the Tehsildar, hence, under these circumstances, the entire proceedings arising out of the aforesaid criminal case are not sustainable and are liable to be quashed and set-aside. Counsel further submits that on the fateful day, when the case was listed before the Trial Court on 18.09.2025, the petitioner was absent and his application seeking exemption from personal appearance was submitted and the same was allowed, in-spite of that substance of accusation has been recorded upon the counsel appearing on behalf of the petitioner. Counsel submits that no such order can be passed and the substance of accusation cannot be recorded upon the counsel on behalf of the petitioner, hence, under these circumstances, the order impugned is not sustainable in the eyes of law and is liable to be quashed and set-aside. (3 of 4) [CRLMP-6711/2025] 3. Per contra, learned Public Prosecutor opposed the prayer, but he is not in a position to controvert the submissions made by counsel for the petitioner. 4. Heard and considered the submissions made at the Bar and perused the material available on the record. 5. Perusal of the impugned order dated 18.09.2025 indicates that when the case was listed before the Trial Court, the accused petitioner was not present. An application was submitted by his counsel for exemption from personal appearance of the petitioner and the same was allowed. In utter surprise, in absence of the accused, the substance of accusation was recorded and the same was explained orally to the counsel appearing on behalf of the petitioner and this fact has also been recorded that for substance of accusation was denied and a prayer was made for conducting the trial. 6. It is quite shocking and surprising that how substance of accusation can be read over and explained upon counsel appearing on behalf of the accused in absence of the accused- petitioner. 7. It is a settled proposition of law that substance of accusation/charge is required to be framed and explained to the accused and if the accused denies the same and claims trial, then and then only, the other proceedings would proceed further, but in the instant case, the aforesaid exercise has not been done. On this count alone the order impugned is not sustainable in the eyes of law and is liable to be quashed and set-aside. (4 of 4) [CRLMP-6711/2025] 8. So far as the first submission with regard to Section 195 Cr.P.C. is concerned, the petitioner is at liberty to file an appropriate application at the stage of recording the substance of accusation/denial of accusation. 9. If said application is submitted by the petitioner, it is expected from the Trial Judge to decide the said application in terms of the provisions contained under Section 195 Cr.P.C. 10. With the aforesaid observations/directions, the instant criminal misc. petition stands disposed of. The stay application and all pending applications, if any, also stand disposed of. (ANOOP KUMAR DHAND),J KuD/33