TEJ SINGH Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the order of the learned Sub-Judge, Judicial Magistrate, Jammu, dated 3-3-1975 for setting aside the same and also for quashing the criminal proceedings in terms of Section 561-A of the Code of Criminal Procedure,

(2.) BRIEFLY speaking the facts of the case are that the police presented a challan under Section 188, R. P. C. in the court of Sub-Judge, Judicial Magistrate, JV Jammu against the accused-petitioner, Thereupon. an application was moved by the accused under Section 195 (1) (a) of the Code of Criminal Procedure inviting the attention of the court that the police could not challan the accused under Section 188, R. P. C. in view of the express bar operating under that section. According to the section, no Criminal Court can take cognizance of an offence under Section 188, R. P. C. except on a complaint in writing of the public servant whose lawful authority has been defied. The Court overruled the objection of the petitioner and dismissed the application on the ground that by virtue of the Government Notification SRO 38 of 1970 dated 24-1-1970 offence under Section 188, R. P. C. has been made cognizable and therefore, the police could challan the accused and there was nothing to prevent the court from baking cognizance of the said case. The bar created under Section 195 (1) did not operate. Aggrieved by this order the accused petitioner has come up in revision before this Court.

(3.) LEARNED Counsel appearing for the petitioner has submitted that in view of express provision of Section 195 (1) (a) of the Code, the Court below could not take cognizance of the case except on a complaint made in writing by the public officer whose authority was defied. The mere fact that the Notification has made the offence cognizable does not render the provisions of Section 195 (1) (a) of the Code nugatory in effect. Notwithstanding the fact that the offence has been made cognizable the bar operates. What the notification intends is that the police can arrest without warrant an accused involved in an offence under Section 188, K. P. C. and nothing more. This does not enable the police to challan the accused without the express consent of the public officer whose authority has been defied. In support of this argument he has relied upon;.