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Judgment
Manisha Batra, J. (Oral).
The instant petition has been filed under Section 482 Cr.P.C. (which is correspondence to Section 528 of the BNSS) seeking quashing of FIR No.05, dated 07.01.2022, registered under Sections 188 of IPC, at Police Station Central Sector-17, Chandigarh and all the consequential proceedings having emanated therefrom.
At the very outset, learned counsel for the petitioners does not press the petition qua petitioners No.1, 2 and 4. Accordingly, the same is dismissed as not pressed qua them.
Brief facts of the case relevant for disposal of this petition are that the aforementioned FIR was registered on the allegations that on 07.01.2022, a police party headed by ASI Ombir Singh was performing crime detection and patrolling duty and was also checking the premises of registered/unregistered Immigration Consultancy Companies. During the course of this checking, it was found that certain immigration companies were operating in different sectors of Chandigarh. These companies were neither registered on the requisite website nor there was any information qua registration of the same with the local police. By doing so, these companies/firms had violated conditions of directions issued by the District Magistrate, Chandigarh vide order No.DM/MA/2021/25168 dated 15.11.2026. It was alleged that the responsible persons of companies as named in the FIR, had committed offence under Section 188 IPC.
After registration of the FIR, investigation proceedings were initiated. The petitioners were arrayed as accused. During the course of investigation, the ownership structure, management details, role of individual accused persons and documentary material pertaining to each firm/company named in the FIR were scrutinized. Statements of witnesses were recorded. Upon completion of investigation, incriminating material was found available as against petitioner No.3 and some other persons. Challan report under Section 173 Cr.P.C. was prepared against them.
It is argued by learned counsel for the petitioner that the FIR in this case had been lodged on the basis of a complaint made by ASI Ombir Singh on the ground that WWICS Global Law Office, which is an Immigration firm/company, was not registered and had been working unauthorizely and also that intimation about this company had not been given to the local police/authorities concerned. It is further argued that the impugned FIR is not sustainable in the eyes of law as it has been lodged under Section 188 IPC and for that purpose, the appropriate procedure as prescribed under Section 195 of the Code of Criminal Procedure (for short 'the Code') has to be adopted. As such, the Court was competent to take cognizance of the matter only on a complaint in writing of the public servant concerned or of some other public servant to whom the concerned ASI was administratively subordinate but no such complaint had been filed directly before the Court and an FIR had been lodged. It is also argued that act of lodging of the FIR straightaway by the police was therefore without jurisdiction and on this very ground, the FIR is liable to be quashed. To fortify his arguments, learned counsel for the petitioners has placed reliance upon the authorities cited as Jiwan Kumar Vs. State of Punjab and others, 2009(1) RCR (Criminal) 415, Sawaran Singh Vs. State of Punjab, 1994 (3) RCR (Criminal) 351 and Bhagat Ram Vs. State of Punjab, 1991(1) RCR (Criminal) 192.
Reply has been filed by respondent/U.T. Chandigarh. Learned Additional Public Prosecutor, U.T., Chandigarh has, however, not been able to controvert the contentions as raised by learned counsel for the petitioners on the legal aspects of the case.
This Court has heard the rival submissions made by learned counsel for the parties.
Since Section 188 IPC is relevant for the purpose, therefore, it would be appropriate to reproduce the same. This provision reads 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 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.
Explanation.— It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.”
On a bare perusal of the provisions of Section 188 IPC, it is apparent that it has the following ingredients, which are necessary:
There must be an order of promulgated by a public servant;
Such public servant must be lawfully empowered to promulgate such order;
Such order should direct the accused to abstain from an act or to take certain order with certain property in his possession or under his management;
The accused should be proved to have disobeyed such order knowingly;
Such order must caused or tend to cause obstructions, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed; or danger to human life, health or safety, or causes or tends to cause a riot or affray.
At this juncture, it will also be proper to refer to the provisions of Section 195(1)(a) of the Code, which is also relevant for the purpose. The same is reproduced as under:
“(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 other public servant to whom he is administratively subordinate.”
It is apparent from a reading of Section 195(i)(a) of the Code that a Court can take cognizance of an offence punishable under Section 188 IPC only on the complaint either made by the public servant concerned or by some other public servant to whom, he is administratively subordinate. In the instant case, the FIR was lodged on the complaint of ASI Ombir Singh on the allegations that the present petitioner had violated the order No.DM/MA/2021/25168 dated 15.11.2026 as issued by the District Magistrate, Chandigarh. Annexure P-2 is the copy of said order, as per which, it was mandatory for the owners of the immigration/student visa companies running their offices in U.T, Chandigarh to provide their complete antecedents in writing to the local police station and at Public Window Police Headquarter, Chandigarh within 07 days from the date of starting business in the city and to mention their registration number in the requisite performa. The allegations against the petitioners are that he had neither got his company registered nor requisite intimation was given to the local police, thereby violating the instructions issued by a public servant i.e. the District Magistrate, Chandigarh. As per the provisions of Section 195(i)(a) of the Code, cognizance of offence under Section 188 IPC could have been taken by the Court only on the complaint of the public servant concerned i.e. ASI Ombir Singh directly to the Court or by his administratively superior officer. However, in the instant case, no such complaint has been filed by the complainant rather FIR was lodged straightaway by the police on the complaint submitted by ASI Ombir Singh. In Sawaran Singh's case (supra) and Bhagat Ram's case (supra), this Court had observed that the scope of Section 195(i)(a) of the Code does not contemplate investigation in a normal way by the police and filing of challan, but the complaint has to be presented directly to the concerned Court. Since in that case, no complaint was filed before the Court, therefore, the FIR and subsequent proceedings emanated therefrom were ordered to be quashed. In Jiwan Kumar's case (supra) also, the FIR was ordered to be quashed since no complaint by the public servant concerned had been filed before the Court in compliance of the provisions of Sections 195(i)(a) of the Code. Since in the instant case, the police straightaway got registered the FIR in violation of the provisions of Section 195(i)(a) of the Code, hence, the same obviously cannot be stated to be sustainable. Accordingly, the same is liable to be quashed. As per the discussion as made above, the petition is allowed and the FIR No.05, dated 07.01.2022, registered under Sections 188 of IPC, at Police Station Central Sector-17, Chandigarh and all the consequential proceedings having emanated therefrom is ordered to be quashed qua petitioner No.3.