IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION NO : 5255 of 2009 Between: Nandamuri Bala Krishna . .Petitioner And The State of A.P., rep. By Public Prosecutor .. Respondent THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.5255 of 2009 ORDER : Heard Sri K.Ravindra Kumar, learned counsel for the petitioner and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor for both the respondents. 2) Learned counsel for the petitioner has brought to notice and also produced a copy of the charge sheet against the petitioner and 3 others taken on file as C.C. No.778 of 2009 on the file of Judicial Magistrate of First Class, Kurnool. 3) The petitioner and three others are facing prosecution for the alleged offences punishable under Sections 143, 341 and 188 read with Section 149 of the Indian Penal Code on the allegation that an unlawful assembly was formed during the road show by the petitioner on 03.02.2009 in spite of the Sub Inspector of Police requesting him not to violate the guidelines of the High Court of Andhra Pradesh and also Section 30 of the Police Act, 1861. 4) The petitioner claims that the political party to which he belongs had obtained permission from the Superintendent of Police, Kurnool to conduct the road show. The petitioner also claims that the ingredients of the offences are not disclosed by the charge sheet. 5) To constitute an unlawful assembly within the meaning of Section 141 of the Indian Penal Code, the minimum number of persons required is 5 and the prosecution against 4 accused is without stating in the charge sheet as to whether anybody else were members of the alleged unlawful assembly and the charges under Sections 143 and 149 of Indian penal Code cannot be sustained against 4 accused alone. 6) Concerning the offence under Section 341 of Indian Penal Code, the charge sheet does not state about any person being wrongfully restrained due to the activities of the petitioner or the other accused. 7) Coming to the offence under Section 188 of the Indian Penal Code, the same is probably attracted as per the charge sheet to the extent of guidelines issued by the High Court of Andhra Pradesh and also an order promulgated under Section 30 of the Police Act, 1861. Who promulgated such an order and when and with what details was not stated and the provision itself shows that such an order can be promulgated only by the Superintendent or the Assistant Superintendent of Police of the district and none else. Section 195(1)(a) of Code of Criminal Procedure mandates that no Court shall take cognizance of the offence under Section 188 of the Indian Penal Code except on the complaint in writing by the public servant who promulgated the order or a person to whom such a public servant is administratively subordinate. The present charge sheet has been filed by the Inspector of Police, who cannot be the person who promulgated the order under Section 30 of the Police Act, 1861 and therefore, the complaint/charge sheet is incompetent being violative of the mandatory provision under Section 195(1)(a) of Code of Criminal Procedure and thus the complaint has to fail. 8) Therefore, further continuance of the proceedings will be an abuse of process of law as the complaint is untenable in law and also due to absence of any allegations about the required ingredients of the offences alleged. As the complaint is in violation of the mandatory procedure, the proceedings in the case have to be quashed in entirety though accused 2 to 4 are not parties in this criminal petition. 10) Therefore, the proceedings in C.C.No.778 of 2009 on the file of the Judicial Magistrate of First Class, Kurnool are quashed and the Criminal Petition is allowed accordingly. __________________ G. BHAVANI PRASAD, J September 17, 2009 KSH