Final Order 1

Order Details: Order
Pdf Text: CC No.536/PS/2022
ORDER BELOW EXH.1
The matter is taken up on today’s board, in the Special
Drive as it has been reported by the Sahar Police Station that the case
can be disposed of in Special Drive, as there is no sanction (compliance
of pre-condition of the complaint in writing by public servant) in this
particular case.
2. The present matter is at ‘Not Heard’ stage. The offence is
punishable under section-188 of I.P.C. and as per provisions of Section-
195(1) of the Cr. P.C. this Court cannot take cognizance of the offence,
until and unless there is a complaint in writing of the public servant
concerned i.e. the Commissioner of Police, Mumbai. In this particular
case there is no complaint of such public servant or anybody authorized
by him, in writing, in his behalf, as provided in Sub-Section (a)(i) of
195 (1) of the Cr. P.C. and therefore, there is bar in taking cognizance.
3. It is pertinent to note here that, once this Court does not
have power to enquire or to try particular case, due to the absence of
sanction of this nature, then the obvious consequences is to discharge
the accused under Section-258 of the Cr. P.C. by stopping of the
proceeding. It has to be held that the prosecution was void ab initio.
4. Now, this provisions of Section-195(1) of the Cr. P.C. are
mandatory. The word that is used, is, “shall” and therefore, non-
compliance of it, would vitiate the prosecution and/ or other
consequential orders passed by this Court, after it has taken the
cognizance. This is because the provision of Section 195(1) of the Cr.
P.C. itself, provides that not only the trial cannot be held no inquiry can
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be done. Even it means, that there is a bar to take cognizance of such
offence and therefore, written complaint of the authority i.e. public
servant is a pre-condition for taking cognizance of the offence and
therefore, this Court is hereby of the opinion that accused should be
discharged by stopping the proceedings under Section-258 of the Cr. P.C.
However, this fact was not raised, any time herein before, and this issue
of requiring a pre-condition was not taken cognizance of, by this Court,
eventually resulting in taking cognizance and proceeding further. Now,
once cognizance taken but proceeding further no charge is framed and
no evidence is taken hence, this Court will have to only discharge the
accused, as proceedings are deemed to be vitiated. In the result, I pass
following order :
ORDER
1. The proceedings are held to be vitiated, due to absence of
complaint in writing of the public servant concerned as
required by provisions of Section-195(1) of the Cr. P.C. and
proceedings are hereby stopped.
2. Accused person is hereby discharged under Section-258 of
the Cr. P.C.
3. Matter is disposed of in Special Drive.
Sd/-
(S.A.R. Sayed)
Metropolitan Magistrate,
Date : 09/11/2022 63rd Court, Andheri, Mumbai.
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