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2026 DAILYLAW 21208 (JHR)

Gopal Chandra Shit v. State of Jharkhand

2026-02-10

Anil Kumar Choudhary

body2026
JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with the prayer to quash the order dated 08.09.2010 passed by the learned Chief Judicial Magistrate, Pakur whereby and where under, the learned Chief Judicial Magistrate, Pakur has taken cognizance of the offence punishable under Sections 182/211 of the Indian Penal Code against the petitioner in connection with O.C.R. Case No. 86 of 2010 arising out of Amrapara P.S. Case No. 64 of 2007, corresponding to G.R. No. 746 of 2007 without following the procedure required under Section 195 of Code of Criminal Procedure; in the absence of any formal complaint on the basis of the Final Report submitted by the police. 3. Further, prayer has also been made to quash the orders dated 10.05.2012, 19.12.2013, 30.06.2014 and 14.08.2014 passed by the learned S.D.J.M., Pakur and learned Judicial Magistrate, Pakur in the said case whereby respectively non-bailable warrant of arrest, proclamation under Section 82 of Cr.P.C., attachment order under Section 83 of Cr.P.C. and the order by which the petitioner has been declared as absconder and permanent warrant of arrest has been issued against him. 4. The brief fact of the case is that the petitioner in capacity of the Assistant Electrical Engineer, Supply Division, Amrapara in the District of Pakur submitted a written report to the Officer-in-Charge of the Amrapara police station alleging therein that on patrolling he found that unknown thieves have committed theft of electric energy wires by cutting and stealing the supply wire of all the three phases of the wire from 28 spans and one phase wire of one span and 32 pin insulators. 5. On the basis of the written report submitted by the petitioner, Amrapara P.S. Case No. 64 of 2007 was registered and police took up investigation of the case. After completion of investigation, police found that the claim of the theft of wires 15-20 days prior to the date of lodging of the FIR was not true rather the electric energy wire has been kept together and finding that the allegation made by the petitioner is not true, in the Final Form which was submitted mentioning the allegation to be not true, representation was made for initiating the proceeding under Section 182/211 of the Indian Penal Code. Basing upon the same, without any separate complaint, the learned Chief Judicial Magistrate, Pakur vide order dated 08.09.2010 took cognizance of the offence punishable under Sections 182/211 of the Indian Penal Code. 6. Learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court of India in the case of Saloni Arora vs. State of NCT of Delhi reported in [2017 (1) East Cr C 391 (SC)] : 2017 0 Supreme (SC) 36 and in the facts of that case when the State Prosecuting Agency sought to prosecute the appellant before the Hon’ble Supreme Court of India for commission of the offence punishable under Section 182 of the Indian Penal Code and the trial court dismissed the application of the appellant on the ground that the procedure as contemplated under Section 195 of the Code of Criminal Procedure was not followed by the prosecution hence, the appellant cannot be prosecuted for such offence and on the same, the Hon’ble Supreme Court of India relied upon its own judgment in the case of Daulat Ram vs. State of Punjab reported in AIR 1962 SC 1206 , wherein, it was laid down by the Hon’ble Supreme Court of India that in order to prosecute the accused for the offence punishable under Section 182 of the Indian Penal Code, it is mandatory to follow the procedure prescribed under Section 195 of the Code, else such action is rendered void ab initio, and observed thus in paragraph nos. 11 and 12 of which reads as under:- “11. It is apposite to reproduce the law laid down by this Court in the case of Daulat Ram (supra) which reads as under: “There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Cr.P.C. 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. The offence under S.182 is complete when a person moves the public servant for action. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under S.182 without the Tehsildar’s complaint in writing is, therefore, without jurisdiction ab initio.” (Emphasis supplied) 12 It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above.” (Emphasis supplied) 7. It is then submitted by the learned counsel for the petitioner that admittedly in this case, the procedure under Section 195 of Code of Criminal Procedure was not followed and otherwise also the offence punishable under Section 182 or 211 of the Indian Penal Code is not made out against the petitioner even if the entire allegation made against the petitioner are considered to be true in its entirety. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 8. The learned counsel for the State on the other hand vehemently opposes the prayer as made in this criminal miscellaneous petition and submits that since the police in the Final Form has made a representation for initiating a proceeding against the petitioner for having committed the offence punishable under Section 182/211 of the Indian Penal Code therefore, it is submitted that no separate complaint is required and such representation of the police submitted in the Final Form can be treated as a complaint as envisaged under Section 195 of the Code of Criminal Procedure. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 9. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to refer to Section 195 of Code of Criminal Procedure 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), 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: 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 appealable 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.” 10. Perusal of Section 195 (a) (i) goes to show that the same debars taking cognizance of any offence punishable under Section 172 to 188 both inclusive except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate and Section 195 b (i) debars any Court from taking cognizance of any offence inter alia punishable under Section 211 of the Indian Penal Code when the offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court or by such officer of the Court as the Court may authorize in writing in this behalf, or of some other Court to which the Court is subordinate. 11. Perusal of the record reveals that no Court or any Officer of the Court as authorized has filed any complaint in writing hence, the cognizance of the offence punishable under Section 211 of the Indian Penal Code is bad in law. 12. 11. Perusal of the record reveals that no Court or any Officer of the Court as authorized has filed any complaint in writing hence, the cognizance of the offence punishable under Section 211 of the Indian Penal Code is bad in law. 12. So far as the cognizance in respect of the offence punishable under Section 182 of the Indian Penal Code is concerned, in view of the principle of law settled in the case of Saloni Arora vs. State of NCT of Delhi (supra), this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Pakur has committed a grave illegality by taking cognizance of the offence punishable under Section 182 of the Indian Penal Code without any complaint in writing by any public servant. Thus, the cognizance of the offence punishable under Section 182 of the Indian Penal Code without following the procedure laid down under Section 195 of Code of Criminal Procedure is not sustainable in law hence, the same is liable to be quashed and set aside. 13. In view of the discussions made above, the order taking cognizance dated 08.09.2010 passed by the learned Chief Judicial Magistrate, Pakur in connection with O.C.R. Case No. 86 of 2010 arising out of Amrapara P.S. Case No. 64 of 2007, corresponding to G.R. No. 746 of 2007 is quashed and set aside. 14. In view of the quashing and setting aside of the cognizance order, all subsequent orders in that proceeding is also quashed and set aside because in the absence of any cognizance order, the subsequent orders have no legs to stand and are accordingly also quashed and set aside. 15. In the result, this criminal miscellaneous petition is allowed.