Mohammed Adil C v. National Investigating Agency

ORDER Criminal Petition is hereby dismissed.

Per: Hon'ble Mr Justice Sreenivas Harish Kumar

At the outset I express my full concurrence to the reasons recorded by Hon'ble Mrs. Justice K.S.Hemalekha. But I think that a further analysis is necessary to hold that the issue raised by Sri Mohammed Tahir is not worth acceptance.

¶2His argument was that since it is alleged that offence under Section of IPC was committed, prosecution of the petitioners for the said offence and other IPC offences on a police report under Section 173 of Cr.P.C. is vitiated inasmuch as whenever offences punishable under Sections 172 to 188 of IPC are committed, court cannot take cognizance without a complaint in writing of the public servant concerned or some other public servants to whom he is administratively subordinate. He also made it a point of argument that just because the NIA took over investigation and invoked the offences punishable under Sections 15, 16, 18 and 20 of the UAP Act besides the offences punishable under Sections 120B, 143, 145, 148, 353 and 427 read with Section 149 of IPC and Section 2 of Prevention of Damage to

Public Property Act, it does not give jurisdiction to the court to take cognizance of the offences because of presence of Section 188 of IPC. He vehemently argued that only the complaint as envisaged under Section 2(d) of Cr.P.C. could be filed, and not a charge sheet.

¶3Sri P.Prasanna Kumar, learned Spl.PP for the respondent/NIA argued that even before the Commissioner of Police imposed curfew, about 25 to 30 people had gathered in front of K.G.Halli police station demanding arrest of Naveen. The crowd increased and turned violent. It was an unlawful assembly for committing various offences. Curfew was imposed after formation of unlawful assembly. Therefore the offence under Section 188 of IPC was subsequent to occurrence of other offences under IPC, and in these circumstances the police or the NIA could file charge sheet and a complaint is not necessary at all. He also argued that the bar contained under Section 195(1)(a) of Cr.P.C. is to protect an innocent person from a false or frivolous proceeding instituted by a private person. In this case investigation was undertaken by the NIA pursuant to

the order of the Central Government and for this reason embargo contained under Section 195 of Cr.P.C. cannot be pressed into service.

¶4Sri Mohammed Tahir has placed reliance on the judgment of the Supreme Court in Central Bureau of Investigation v. M.Sivamani10. The Hon'ble Supreme court has held as below:

¶12We have considered the rival submissions. We find merit in the contention raised on behalf of the appellant. While the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person. The expression "the public servant or his administrative superior" cannot exclude the High Court. It is clearly implicit in the direction of the High Court quoted above that it was necessary in the interest of justice to take cognizance of the offence in question. Direction of the High Court is at par with the direction of an administrative superior public servant to file a

10 2017(14) SCC 855

complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. The view taken by the High Court will frustrate the object of law and cannot be sustained.

(emphasis supplied)

¶5Therefore from the above decision it is clear that the embargo found in Section 195 of Cr.P.C. is to protect an innocent person from a false or frivolous proceeding initiated by a private person. If a public servant initiates criminal action, it conveys a meaning that in all probability the proceeding initiated is not on false ground. That apart the issue that has been raised in this writ petition can be examined from another angle which is as below.

¶6Section 190 of Cr.P.C. enables a Magistrate to take cognizance of any offence,

(i) Upon receiving a complaint of facts which

constitute an offence

(ii) upon a police report of such facts

(iii) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

¶7If an FIR is registered, necessarily the police officer has to investigate and submit a report under Sections 168 or 173 of Cr.P.C. That means whenever investigation is by the police, the court can take cognizance only upon a report of the police as envisaged under Section 190(b) of Cr.P.C. A police officer is not expected to file a complaint. Section 2(d) of Cr.P.C. defines a complaint as below:

"2…….

(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

¶8It is clear that complaint does not include a police report. Section 195(1)(a) of Cr.P.C. clearly bars taking cognizance except on a complaint of the public servant concerned or some other public servant to whom he is administratively subordinate in respect of any offence punishable under Sections 172 to 188 (both inclusive) of IPC; or any abetment of, attempt to commit such offence, or of any criminal conspiracy to commit such offence. The offences mentioned in Section 195(1)(b)(i) to (iii) require a complaint in writing by the court or an officer of the court.

¶9In the case on hand Section 188 of IPC was invoked and this was the reason for the petitioners' strong objection to taking cognizance on a charge sheet submitted by the NIA. The offences made punishable under Sections 172 to 190 fall under Chapter-X of IPC and they relate to showing contempt to the lawful authority or a public servant. Section 195 (1)(a)(i) restricts applicability of the embargo only for the offences under Sections 172 to 188 of IPC,

offences under Sections 189 and 190 are excluded. Some of the offences under Sections 172 to 188 are cognizable and some are non-cognizable. The offence under Section 188 of IPC is cognizable. Whenever other offences under IPC and other laws are invoked along with any of the offences under Sections 172 to 188 of IPC, what actually is the procedure to be followed by a court for taking cognizance is not clearly found in Cr.P.C. But this position can be clearly explained away with reference to Section 198 of Cr.P.C. The said section deals with taking cognizance of an offence relating to marriage upon a complaint only. If there is an allegation against a husband of committing an offence under Section 498A of IPC along with Section 494 of IPC, can it be said that the court cannot take cognizance upon a charge sheet filed by the police for the offences under Sections 494 and 498A of IPC. The answer to this is found in the decision of the Hon'ble Supreme Court in State of Orissa v. Sharat Chandra Sahu and another11.

11 AIR 1997 SC 1

¶10The facts in this case were that the wife approached Women's Commission with grievances that her husband had contracted second marriage and that she used to be harassed for the sake of money. The Women's Commission forwarded the wife's written complaint to the police who later on registered FIR, held investigation and filed charge sheet in the court of Sub-Divisional Judicial Magistrate for the offences under Sections 494 and 498A of IPC. The husband challenged the charges framed against him by filing a petition under Section 482 of Cr.P.C. The High Court passed an order quashing the charge under Section 494 of IPC on the ground that the wife herself should have filed a complaint personally in view of Section 198(1) of Cr.P.C., however charge under Section 498A was sustained for trial. In this context, taking note of Section 198 and Section 155 of Cr.P.C. the Hon'ble Supreme Court held as below:

¶14The High Court was thus clearly in error in quashing the charge under Section 494 I.P.C. on the ground that the Trial Court could not take cognizance of that offence unless a complaint was filed

personally by the wife or any other near relation contemplated by Clause (c) of the Proviso to Section 198(1).

¶15The Judgment of the High Court being erroneous has to be set aside. The appeal is consequently allowed. The Judgment and order dated 3rd May, 1995 passed by the Orissa High Court in so far as it purports to quash the charge under Section 494 I.P.C. and the proceedings relating thereto is set aside with the direction to the Magistrate to proceed with the case and dispose it of expeditiously.

¶11To come to above conclusion, the Supreme Court recorded the reasons which are found in paras 10 to 13, that are as follows:

¶10Sub-section (4) of this Section clearly provides that where the case relates to two offences of which one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offence or offences are non-cognizable.

¶11Sub-section (4) creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the

non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated a cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed.

¶12Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in Sub-section (4) provides that even non-cognizable.

¶13This Court in Preveen Chandra Mody vs. State of M.P. AIR 1965 SC 1185 has held that while investigating a cognizable offences and presenting a charge-sheet for it, the police are not debarred from investigation any non-cognizable offence arising out

of the same facts and including them in the charge-sheet.

¶12The above judgment finds pertinence not in view of applicability of Section 155(4) of Cr.P.C., but in view of permitting prosecution upon charge sheet filed by police for the offences under Sections 494 and 498A of IPC. If strict interpretation is given, the whole proceeding should have been quashed for want of complaint by the wife. Applying the same analogy here, order of taking cognizance cannot be said to be invalid or bad for want of complaint in accordance with Section 195(1)(a) of Cr.P.C. Position is different if offence under Section 188 of IPC alone is committed; in that event a complaint needs to be filed. Illustration to Section 188 of IPC gives an inkling to understand its scope. A public servant issues a promulgation prohibiting a procession being taken in a certain street; it is disobeyed causing a danger of riot. If riot had taken place after promulgation, the offence of riot becomes integral part of Section 188 of IPC necessitating in that event a complaint to be filed. Conversely by the time promulgation was issued, some

offences in respect of which police can conduct investigation had already taken place, the police can file charge sheet for all the offences including Section 188 of IPC. The present case falls under second category. Besides this there is an allegation that there was conspiracy to commit offences. But there could be no conspiracy to commit offence under Section 188 of IPC; if at all there were to be any conspiracy it was for committing other offences, not the one under Section 188 of IPC, which appears to be incidental here.

¶13Sri Mohammed Tahir has relied on two orders passed by two single judge benches of this court in W.P.No.13328/2018 and Crl.P.No.2896/2022 following judgment of Supreme Court in Hemareddy (supra) where there is a reference to Section 195(1)(b) of Cr.P.C. Section 195(1)(a) and Section 195(1)(b) indeed require a complaint to be filed, but Section 195(1)(a) requires complaint to be filed by a public servant, and according to Section 195(1)(b), complaint can be filed only by a court or a duly authorized officer of the court. Clear distinction between clauses (a) and (b) of Sub-section (1) of Section 195 of Cr.P.C. is

apparent. Therefore the ratio in Hemareddy is not helpful to the petitioners.

¶14As has been held by the Supreme Court in C.Muniappan and Others v. State of Tamilnadu12, the real test is whether facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. It is held as below:

"29. The test of whether there is evasion or non-compliance of Section 195 Cr.P.C or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.P.C. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it."

12 (2010) 9 SCC 567

¶15Here the facts do not disclose that offences of that type in relation to which a public servant could set law into motion by filing a complaint, had taken place. The NIA, which is a responsible investigation institution, having noticed that the nature and gravity of offences was a threat to unity and integrity of the nation took over investigation upon its entrustment to it, and filed the charge sheet. In case offence under Section 188 of IPC had been omitted from the charge sheet, it would not have affected the prosecution case. Applying this test, it can very well be said that there is no scope for applying Section 195(1)(a) of Cr.P.C. For all these reasons the argument of Sri Mohammed Tahir fails and therefore this criminal petition deserves dismissal.

Sd/- (SREENIVAS HARISH KUMAR) JUDGE

Sd/- (K.S. HEMALEKHA) JUDGE MBM, YKL/KMV List No.: 1 Sl No.: 1

NC:(2025:KHC:17621-DB( CRL.P(No.(7341(of(2022( ( ( (RA ( IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU( ( THDATED(THIS(THE(29 (DAY(OF(APRIL,(2025( ( PRESENT( ( THE(HON'BLE(MR(JUSTICE(SREENIVAS(HARISH(KUMAR( ( AND(( ( THE(HON'BLE(MRS(JUSTICE(K.S.(HEMALEKHA( ( CRIMINAL(PETITION(NO.7341(OF(2022( ( BETWEEN:( ( 1., MOHAMMED,ADIL,.C, , S/O,MOHAMMED,FAROOQ,.C, AGED,ABOUT,27,YEARS,, RDR/AT,NO.5,,3 ,MAIN,, BHARATH,MATHA,LAYOUT, NEAR,MAKKA,MASJID,,VENKATESHPURA,, KG,HALLI,,BENGALURU-560045., , 2., ABDUL,LATHIF,.C,S/O,MOHAMMED,FAROOQ,.C, AGED,ABOUT,31,YEARS,, RDR/AT,NO.5,,3 ,MAIN,, BHARATH,MATHA,LAYOUT, NEAR,MAKKA,MASJID,,VENKATESHPURA,, KG,HALLI,,BENGALURU-560045., , Digitallytisignedtiby 3., IRFAN,KHAN,S/O,DASTAGIR,KHAN,MAHALAKSHMI0B0M AGED,ABOUT,29,YEARS,,Location:0HIGH TH COURT0OF R/AT,NO.1057,,13 ,CROSS,, KARNATAKA NEAR,GANPATI,TEMPLE,, GOVINDAPURA,MAIN,ROAD,, AC,POST,,BANGALORE-560045., , 4., AKBAR,KHAN,S/O,LATE,AMAN,ULLAH,KHAN, AGED,ABOUT,40,YEARS,, R/A,PRESENT,ADDRESS, , NO.27/107,,YALLAMMA,TEMPLE,ROAD,, ND2 ,CROSS,,GOVINDAPURA,, BANGALORE-560045., , 5., KALEEM,ULLA,@,SHAHRUKH, S/O,RAHAMUTHULLA, AGED ABOUT 29 YEARS, R/A NO.12, 11TH CROSS, VINOBHA NAGAR, K G HALLLI, BANGALORE-560045. ... PETITIONERS (BY SRI MOHAMMED TAHIR, ADVOCATE) AND: NATIONAL INVESTIGATING AGENCY (HYDERABAD) REP. BY SPL. PUBLIC PROSECUTOR OFFICE AT HIGH COURT COMPLEX OPP. TO VIDHANA SOUDHA BANGALORE-560001. … RESPONDENT (BY SRI P. PRASANNA KUMAR, SPL. PP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE CHARGE SHEET DATED 02.02.2021 AT ANNEXURE-D FILED IN SPL.C.C.NO.141/2021 BY THE RESPONDENT i.e., NATIONAL INVESTIGATION AGENCY (HYDERABAD), SAME IS PENDING BEFORE THE HON'BLE XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) (CCH-50), BENGALURU FOR THE OFFENCE P/U/S 120B, 143, 145, 147, 188, 353, 427, R/W 34 AND 149 OF IPC AND SECTION 2 OF PREVENTION OF DESTRUCTION OF LOSS OF PROPERTY ACT, 1981 AND CONSEQUENTLY QUASH THE COGNIZANCE ORDER DATED 16.02.2021 AT ANNEXURE-E PASSED BY THE HON'BLE XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) (CCH-50), BENGALURU, AGAINST THE PETITIONERS, WHEREIN THE PETITIONERS ARE ARRIVED AS ACCUSED NO.36, 37, 51, 53 AND 54. Date on which the petition was reserved for Order 01.04.2025 Date on which the Order was pronounced 29.04.2025 THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR and HON'BLE MRS JUSTICE K.S. HEMALEKHA CAV ORDER (Per: Hon'ble Mrs Justice K.S. Hemalekha) The petitioners who are arrayed as accused Nos.36, 37, 51, 53 and 54 in Special Case No.141/2021 are seeking to quash the charge sheet dated 02.02.2021 for the offences punishable under Sections 120B, 143, 145, 147, 188, 353 and 427 read with Sections 34 and 149 of IPC and Section 2 of the Prevention of Destruction of Loss of Property Act, 1981 and order dated 16.02.2021 taking cognizance passed by the XLIX Additional City Civil and Sessions Judge (Special Court for Trial of NIA cases) (CCH-50) at Bengaluru ('Trial Court' for short). 2. On 11.08.2020 at about 8.45 p.m., a group of 25 to 30 people gathered in front of Kadugondana Halli (KG Halli) Police Station and started shouting slogans demanding arrest of one Naveen, nephew of Sri.Akhanda Srinivasa Murthy, MLA who had posted certain derogatory message on his facebook account, insulting the religious faith of the people who belonged to a particular religion. At about 8.50 p.m., another group of people under the leadership of one Syed Ikramuddin entered K.G.Halli police station, demanding registration of a case against Naveen and others. The complaint was accepted by the police and registered NCR for preliminary enquiry as a case vide FIR No. 195/2020 was already registered on the same set of fact at Devara Jeevana Halli (D J Halli) on 11.08.2020. 3. The gathering at K.G.Halli police station w