HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition Nos.7829, 7830 and 7832 of 2009 Dated : 23.09.2009 Between : K.Aruna Kumari ….. Petitioner a n d The State of A.P. & another ….. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition Nos.7829, 7830 and 7832 of 2009 COMMON ORDER: Heard Sri Ch.Rama Krishna, learned counsel for the petitioner in all the three petitions, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor for both the respondents in all the three petitions. As the question involved in all the three criminal petitions is common, they are being disposed of by this common order. The petitioner is one of the accused facing prosecution in respective cases for the alleged offences punishable under Sections 143, 188 and 341 of the Indian Penal Code (for short ‘I.P.C.’) on the basis of the charge sheets filed by the concerned Sub-Inspector of Police. What the petitioner contends is that the prohibitory orders promulgated by the competent authority were never violated and that in any view the Sub-Inspector of Police cannot prosecute her under Section 188 of I.P.C. in view of the mandatory provisions of Section 195 (1) (a) of the Code of Criminal Procedure (for short ‘Cr.P.C.’). The petitioner further stated that her daughter, who is residing in California in U.S.A., is expected to deliver a baby in the second week of November, 2009, and her presence is absolutely required to assist her. It is true that the orders said to have been promulgated under Section 30 of the Police Act, 1861, must have been undoubtedly promulgated by officers, who are superior in rank to the Sub-Inspector of Police, as section 30 of the Police Act, 1861, itself specifies that it is only a Superintendent or Assistant Superintendent of Police of the District, who can promulgate such an order. Section 195 (1) (a) of Cr.P.C. mandates that no Court shall take cognizance of an offence punishable under Section 188 of I.P.C. except upon the complaint in writing by the public servant concerned or any other public servant to whom such public servant is subordinate. As such, the trial Court taking cognizance of the offence under Section 188 of I.P.C. on the charge sheets/complaints filed by the Sub-Inspector of Police is in violation of the mandatory provision and the charge sheets/complaints being incompetent and unsustainable in law, they have to be quashed to that extent. However, concerning the alleged offence punishable under Sections 143 and 341 of I.P.C. are concerned, the allegation in all the three cases is that the accused in respective cases formed themselves into an unlawful assembly and staged Rasta Roko obstructing the traffic on the public road causing annoyance to public at large. In each of the cases, number of witnesses were cited to corroborate the allegations of the prosecution about formation of the unlawful assembly and the wrongful restraint caused by Rasta Roko staged by such unlawful assembly. Both the offences could have been successfully prosecuted before the Court of competent jurisdiction by the Sub-Inspector of Police and therefore, the charge sheets cannot be considered untenable so far as those two offences are concerned. The truth or otherwise of the claims of the prosecution about the committal of the offences or the claims of the petitioner about her innocence have to be tried and decided on merits by the trial Court on the oral and documentary evidence to be placed before it and not by this Court in a summary and restricted enquiry under Section 482 of Cr.P.C. Hence, the petitioner cannot succeed to that extent. Though, the other accused in the cases are not parties in the present petitions, in view of the legal ground, the charge sheets in respect of Section 188 of I.P.C. should fail against all the accused. Concerning the averment of the petitioner about the compulsive necessity for her going to U.S.A. to assist her daughter, who is expected to deliver a baby in November, 2009, it is open to her to make an appropriate application to the trial Court under Section 205 of Cr.P.C. to be represented by a special Vakalat holder in the further proceedings or under Section 317 of Cr.P.C. to dispense with her presence on each date of hearing or under Rule 37 of Criminal Rules of Practice to be permitted to be represented by any of the other accused in the further proceedings and the trial Court will undoubtedly consider her request in accordance with law on merits with all the urgency and sympathy that such a request deserves and no positive direction need be given in this regard. Accordingly, the further proceedings in C.C.Nos.339, 262 and 331 of 2005 on the file of the V Metropolitan Magistrate, Gannavaram, Krishna District, are quashed insofar as they relate to the offence under Section 188 of I.P.C., but the further proceedings in said cases shall go on in respect of the other offences with which the accused including the petitioner are charged. The criminal petitions are ordered accordingly. ______________________ G.BHAVANI PRASAD, J 23rd September, 2009 SUR