THE HON'BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.4729 of 2009 ORDER: Petitioners herein are accused in C.C.No.491 of 2008 on the file of the Court of the II Additional Judicial First Class Magistrate, Tenali (trial court). They filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short Code), for quashing the said case. 2. The case is registered on the charge sheet filed by the Sub- Inspector of Police, Tenali Taluk Police Station. Two offences are alleged against the petitioner in it. One is under Section 143 IPC which relates to unlawful assembly and the other is under Section 188 IPC which relates to disobedience to an order lawfully promulgated by a public servant. The allegations in the charge sheet are that in connection with some dispute between two parties in respect of Acs.6-71 cents of land in Chavavaripalem village, the Mandal Executive Magistrate, Tenali, promulgated an order under Section 144 of the Code restraining both parties from laying any foundation stone in the above disputed land and from disturbing the public peace and tranquility. It is then alleged in the charge sheet that these petitioners have violated the said order in an unlawful assembly and prepared to perform pooja and for laying foundation stone and laid it for construction of Sivalayam Temple in the above disputed land. With these allegations the Sub- Inspector of Police after taking note of the report filed by the Mandal Executive Magistrate, Tenali, filed charge sheet against all these petitioners for the aforesaid offences. 3. It may be noted that Section 195(1)(a)(i) of the Code says that no court shall take cognizance of any offence punishable under Sections 172 to 188 IPC (both inclusive) except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It is thus clear that for a court to take cognizance of the offence punishable under Section 188 IPC, a ‘complaint’ in writing of the public servant whose order is violated is necessary. The term ‘complaint’ is defined in Section 2(d) of the Code and it means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report i.e. a charge sheet. In other words, the concerned Executive Magistrate ought to have file a complaint for the aforesaid offences of Section 143 and 188 IPC and instead he chose to give a report to the police and the concerned police laid charge sheet for the said offences and it was taken cognizance of by the concerned Magistrate on a police charge sheet contrary to Section 195(1)(a)(i) of the Code. This is sufficient to quash the offence under Section 188 IPC in the charge sheet on the ground of above illegality as the said offence is not cognizable on a police charge sheet. 4. In similar circumstances in Daulat Ram v. State of Punjab[1] the Supreme Court clearly held that the offence under Section 182 IPC has to be taken cognizance of only on the complaint of the concerned public servant and not otherwise that too on a police report and holding so the prosecutions therein was quashed. The same principle applies to the offence under Section 188 IPC also as both Section 182 IPC and Section 188 IPC are covered by the above bar under Section 195(1)(a)(i) of the Code. 5. Then coming to the offence under Section 143 IPC which relates to unlawful assembly, no doubt it is shown as cognizable offence but it should be noted that the concerned Sub-Inspector of Police has added this Section 143 IPC in order to show that this offence was committed in connection with the main offence under Section 188 IPC. In these circumstances, in my opinion, the case cannot be allowed to be prosecuted even for the offence under Section 143 IPC. 6. Accordingly, this criminal petition is allowed and the case C.C.No.491 of 2008 on the file of the Court of the II Additional Judicial First Class Magistrate, Tenali, is quashed. ______________________ N. RAVI SHANKAR, J 12th December 2011 CVRK [1] AIR 1962 SC 1206(1)