Ashish Kumar Tiwari  [Applicant] Vs. State Of U.P. Thru. A.C.S/Prin. Secy. Deptt. Home Govt. [Opposite Party]

APPLICATION U/S 482 No. – 2784 of 2024

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

Facts: 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.

Issue: Whether sufficient ground for proceeding exists in the case or not?

Arguments on behalf of counsel for applicant:

Learned counsel for the applicants 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 and 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 4 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.

Arguments on behalf of counsel for opposite party:

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 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.

Held: The court allowed the present application and held that, “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.”