KANTA DEVI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) In the instant petition, order dtd. 7/12/2018 passed by learned Judicial Magistrate First Class, Court No. VI, Shimla in Case No. 429 of 2018, has been assailed by petitioners, whereby on the basis of final report submitted by police under Sec. 173 of Code of Criminal Procedure (in short 'Cr.PC), cognizance has been taken by learned Judicial Magistrate First Class against the petitioners for an offence alleged to have been committed under Sec. 188 of IPC read with Sec. 34 IPC.

(2.) It is the case of prosecution that on 15/7/2018, on the basis of statement of Smt. Usha Sharma, complainant, recorded by Investigating Officer, a case under Sec. 188 read with Sec. 34 IPC was registered by police for violation of order passed by Municipal Corporation Shimla, restraining the petitioners from carrying out construction and repair of building.

(3.) Learned counsel for petitioners has submitted that in view of provisions of Sec. 195 of Cr.P.C., cognizance of offence committed under Sec. 188 of IPC can only be taken on the basis of complaint, made in writing, of public servant concerned or some other public servant administratively superior to him, whereas, in present case, neither the public servant concerned, who had issued the order, nor any other officer superior to him, has made any complaint either to police or to the Court. Therefore, he has prayed for quashing the FIR as well as proceedings in reference in this case.