SWASTIK CONSTRUCTION CO. Vs. STATE OF M. P.

JUDGEMENT

(1.) The present petition has been filed under section 482 of Cr.P.C for quashing the FIR registered at crime number 478/ 19 under section 188 of the IPC at Police Station Dabra.

(2.) It is submitted by counsel for the petitioner that the case is related to partnership firm and the present petitioner Vishwa Pratap Singh Bhadhoriay is one of the partners and contract work regarding construction of road was allotted to be completed by 21st April 2017 total length being 2.90 kms. The petitioner has completed more than 90% of the work as mentioned in the tender and the remaining work measuring 0.20 kms could not be carried out as there was interim order dated 23rd March 2016 passed by the Hon'ble High Court in W.P. No. 5989/2018, therefore the petitioner was not in a position to complete the remaining work. The request was made by the petitioner to the concerning Chief Engineer PWD, North Gwalior on 4th, June 2019 and the reminder was also sent on 19. 7. 2019, but no heed was paid on the representation as well as on reminder sent by the petitioner and all of a sudden on 25th June 2019 notice under section 133(1) CrPC has been issued. The petitioner's detailed reply to the show cause notice was submitted by him before respondent no. 2 along with all the documents and has also tried to demonstrate that local inhabitants has created obstruction in the work and also beaten staff of the company therefore FIR was registered at crime no. 379/18 therefore remaining work 0.20 kms could not be completed. It is argued that the respondent authorities without taking into consideration the reply filed by the petitioner has issued an order for registration of FIR for offence punishable under section 188 of the IPC against the petitioner. Inspection Report dated 8th, August 2019 by the SDO PWD was also furnished before respondent no. 2 pointing out the fact that the entire work was done by the petitioner company except the work which is subjudice and pending consideration before the Hon'ble High Court in W.P. No 5989/18 but the respondent authorities have not taken into consideration the Inspection Report also and has directed for registration of FIR. It is submitted that it is a settled law that even the quasi judicial authorities are required to mention the reasons for passing such order. It is submitted that without considering the reply filed by the petitioner and without passing a reasoned order the proceedings are not maintainable. It is further submitted that in terms of section 195 of CrPC the police authorities have no right or Power to register FIR under section 188 of the IPC directly. It is clear from the provision of Sec. 195 of Cr.P.C as well as the judgement of Hon'ble Supreme Court in the case of Munniappan vs. D.K. Rajendran reported in AIR 2010 SC 3718 that no court can take cognizance of offence punishable under section 188 of the IPC except the complaint in writing to the Magistrate by the concerning public servant. Law does not permit taking of cognizance under section 188 of the IPC directly by the police authorities. In the present case no written complaint has been submitted before the Magistrate. Thus in the light of the judgement passed in the case of Munniappan (supra) impugned order as well as registration of FIR against the petitioner is not maintainable. It is further argued that the reasons are the heartbeat of the order and even the quasi judicial authorities are required to pass a well reasoned order. In the present case the order dated 8th, August 2019 passed by the respondent authorities does not show any reason for lodging of FIR under section 188 of the IPC against the petitioner. Thus he has prayed for quashment of FIR dated 14th August 2019 registered at crime number 478/2019 against the petitioner. He has further relied upon the order passed by the co-ordinate bench of this court in Mcrc. No.12207 /2012 order dated 11.02. 2013 and has prayed for quashment of the FIR. It is argued that the law is well settled on the aforesaid issue that without filing any written complaint before the concerning Magistrate no police officer can register an FIR and take cognizance in the matter.

(3.) Per contra counsel for the State has opposed the contentions raised by the counsel for the petitioner and has argued that a notice was issued to the SDO PWD with respect to removal of public nuisance within a period of 5 working days. It was observed in the order dated 25th, June 2019 that on 5. 9. 2017 an agreement was entered into and by 20th July 2018 work was to be completed but the same was not completed within the time schedule fixed in the agreement. No construction of Nali adjoining the road was made by the petitioner. During the rainy season water logging is there which in turn is affecting transportation and traffic. Thus owing to the act of the petitioner public nuisance is being created therefore the order dated 25th June 2019 was issued. It is argued that prior to entering into the agreement the petitioner was well aware of the condition of the site and he has agreed to complete the work within stipulated time frame but the same was not completed and order has been passed by the SDO for registration of an FIR against the petitioner on 8th, August 2019 for the reason that the petitioner has failed to complete the work within the time stipulated and accordingly the FIR was registered against the petitioner for offence registered under section 188 of IPC at crime no. 478 /19 at police station Dabra Distt. Gwalior. It is submitted that the petitioner has directly approached this court in the present petition under section 482 CrPC. It is submitted that jurisdiction of the court for quashment of the FIR is very limited and the power should be exercised very rarely. In the present case it is not disputed that the part of the work could not be completed by the petitioner within stipulated time frame and the petitioner has not made any efforts to get time extended at any point of time and the petitioner was well aware of the site plan and working conditions and despite of the same he has chosen to work within scheduled time frame and has entered into an agreement. Thus it cannot be said that the petitioner was not at fault. Merely sending intimation to the authorities regarding encroachment being made on the site of working does not absolve the petitioner from its liability, even the application has been sent at the later stage. In such circumstances the petitioner has made himself liable to be prosecuted under section 188 of IPC. He has prayed for dismissal of the petition.