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Patna High Court

KUMAR VANSH GIRI @ KUMAR RAGHUVANSH GIRI @ KUMAR VANSH @ HARIVANSH GIRI @ RAGHUVANSH GIRIversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The order taking cognizance is set aside as it violates Section 195(1)(a) CrPC and is a mechanical order lacking judicial mind.

Summary

The petitioner challenged an order dated 30‑09‑2019 by the Additional Chief Judicial Magistrate, Chapra, which took cognizance of offences under Sections 188, 379, 420 and 409 IPC (read with 34) arising from an alleged illegal sand transport case. The petitioner argued that the magistrate’s order was a mechanical, routine order showing no application of judicial mind and that taking cognizance of Section 188 IPC without a written complaint of the public servant violated Section 195(1)(a) of the CrPC. The State contended that a prima facie case existed. The High Court held that the order was unsustainable because it breached the statutory bar under Section 195(1)(a) and was passed without any material assessment, and further found that the factual allegations did not constitute the alleged IPC offences. Consequently, the court set aside the order and allowed the petition for quashing.

Issues considered

  • Whether a court may take cognizance of an offence under Section 188 IPC without a written complaint of the public servant as required by Section 195(1)(a) of the CrPC.
  • Whether the magistrate’s order taking cognizance was a mechanical order lacking application of mind and therefore invalid.
  • Whether the facts alleged in the FIR disclose the ingredients of offences under Sections 379, 420 and 409 IPC.
  • Whether the petition for quashing the order should be allowed.

Legislation cited

Subjects

  • Section 188 IPC
  • Section 195 CrPC
  • cognizance
  • quashing order
  • mechanical order
  • non‑application of mind
  • illegal sand transport
  • criminal procedure
  • IPC offences
  • statutory bar

Judgment

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL MISCELLANEOUS No.11247 of 2021
    Arising Out of PS. Case No.-198 Year-2016 Thana- MADHAURAH District- Saran
======================================================
Kumar Vansh Giri @ Kumar Raghuvansh Giri @ Kumar Vansh @ Harivansh
Giri @ Raghuvansh Giri S/O Late Deodhari Giri Resident Of Ward No.13,
Saraiya, P.S.- Gopalganj, District- Gopalganj.
                                                        ... ... Petitioner/s
                                     Versus
The State of Bihar
                                                 ... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s    :       Mr. Y.V. Giri, Sr. Adv.
                                Mr. Vikas Ratan Bharti, Adv.
                                Mr. Kumar Abhishek, Adv.
                                Mr. Deepak Kumar, Adv.
For the State           :       Mr. Ram Priya Sharan Singh, APP
======================================================
CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
                ORAL JUDGMENT

 Date : 08-01-2026
           Heard Mr. Y.V. Giri, learned senior counsel for the

 petitioner duly assisted by Mr. Vikas Ratan Bharti and Mr. Ram

 Priya Sharan Singh, learned APP for the State.

                2. At the outset, it is indicated that the stage of the

 case has not progressed any further after taking of cognizance as

 has been informed by the learned counsel for the petitioner.

                3. The present application has been filed for quashing

 of the order dated 30.09.2019 passed by the court of the learned

 ACJM-14 Chapra in Madhaura P.S. Case No. 198 of 2016 in

 (Trial No. 2892 of 2019) whereby and whereunder the learned

 Magistrate has been pleased to take cognizance against the
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         petitioner for offence under Sections 188, 379, 420, 409 read

         with Section 34 of the Indian Penal Code (hereinafter referred to

         as the ‘IPC’).

                      4. The said order taking cognizance and issuance of

         summons has been assailed by the learned Senior counsel for

         the petitioner on both legal and factual grounds. So far as the

         legal ground of challenge is concerned, it has been submitted by

         the learned senior counsel that the order impugned suffers from

         the vice of total non-application of judicial mind inasmuch as, a

         perusal of the order itself would indicate that it is a routined,

         patterned and a mechanical order which does not indicate any

         consideration about the materials leading to finding of a prima

         facie case against the petitioner, consequence whereupon

         cognizance has been taken and summons have been issued. For

         substantiating such submission, the learned senior counsel has

         referred to the following case laws which have been rendered by

         coordinate Benches of this Court:-

                      i. Dharmesh Prasad Verma Vs. State of Bihar

                       (2017 (1) PLJR 401)

                      ii. Shambhu Sharan Sharma Vs. State of Bihar & Anr.

                      (2023 (1) PLJR 871)

                      ii. Birendra Pd. Singh Vs. State of Bihar

                      (2023 (2) PLJR 931)
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                      5. The second contention raised by the learned senior

         counsel relates to the legal bar created by Section 195(1) (a) of

         the Cr.P.C. to taking of cognizance under Section 188 of the IPC

         in case of non-adherence to the procedure as contemplated

         under the statute. It has been emphatically contended that the

         very taking of cognizance under Section 188 of the IPC is bad in

         law as the same stands legally barred in view of the fact that the

         cognizance can be taken under the aforesaid section only upon a

         complaint in the writing of the public servant concerned or some

         other public servant to whom he is administratively subordinate,

         which is not the position in the case in hand as a First

         Information Report has been instituted on the basis of the self

         statement of the informant who is a Sub Inspector of Police. In

         this regard, the learned senior counsel has also made reference

         to the case of Vijay Kumar Vs. The State of Bihar and

         Another rendered by a co-ordinate Bench of this Court reported

         in 2025 (1) BLJ 649 wherein it has been clearly laid down that

         Section 195 of the Cr.P.C. prohibits taking of cognizance under

         Section 188 IPC except on the written complaint of the public

         servant. It has also been laid down making reference to other

         judicial pronouncements that the provisions of Section 195

         Cr.P.C. are mandatory and non-application of the same would
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         vitiate the prosecution and all other consequential orders.

         Reference has also been made to the case of Dharmesh Pd.

         Verma Vs. State of Bihar reported in 2017 (1) PLJR 401,

         wherein also a coordinate Bench of this Court has, in clear and

         unambiguous terms, laid down that the provision of Section 195

         of the Cr.P.C. has been carved out as an exception to the general

         rule contained under Section 190 of the Cr.P.C. and as such it

         prohibits the courts from taking cognizance of certain offences

         until and unless a complaint has been made by some particular

         authority or person.

                      6. Besides the abovementioned legal grounds, the

         argument has also been made on the factual context submitting

         herein that no offence is made out even upon considering the

         facts which are on record. For proper adjudication of the factual

         aspect, short facts of the case is required to be elucidated. The

         present FIR has been lodged on the basis of the self statement of

         the SI of police alleging therein that two trucks loaded with sand

         were intercepted and since there was a total ban upon the

         excavation and transportation of sand, which comes under

         mines and minerals, the present FIR was lodged alleging illegal

         mining of sand and its transportation. The FIR further reveals

         that the driver of the truck upon inquiry had disclosed the name
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         of the petitioner to be the owner of one of the trucks which fact

         was subsequently retracted and during the course of

         investigation, it has transpired that the driver has not named the

         present petitioner to be the owner of the truck and has rather

         taken the name of some other person to be the said owner. After

         investigation however, charge-sheet was submitted and the

         impugned order taking cognizance U/s 188, 379, 420, 409/34

         was passed mechanically issuing summons against the accused

         persons including the present petitioner. It is to be noted here

         that there is no cognizance under the provisions of Mines and

         Minerals (Development and Regulation) Act, which is the

         special Act dealing with issues related herein.

                      7. Learned APP for the State has opposed the present

         application for quashing of the order impugned on the ground

         stating that there is no illegality in the said order and a prima

         facie case is made out upon the facts of the case.

                      8. Upon hearing the rival contentions, this Court is of

         the view that so far as the legal ground of non-application of

         mind by the court concerned while taking cognizance of the

         offence is concerned, the order itself very apparently reflects a

         mechanical and a routine approach having been passed only on

         the basis of the fact that a charge-sheet has been submitted and
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         there is absolutely no consideration of any material upon which

         the learned Magistrate has found a prima facie case to be

         existing against the present petitioner. It is a settled law that no

         order taking cognizance can be passed in a standardised format

         by merely filling up details whether in a typed format or in an

         order like the present one which is clearly reflective of non-

         application of mind. One also cannot loose sight of the fact that

         in a criminal case summoning of an accused has serious

         consequences and ramifications as laid down in the case of

         Pepsi Foods Ltd. and Anr. vs Special Judicial Magistrate and

         Ors., reported in (1998) 5 SCC 749, and the order of the

         Magistrate summoning the accused must reflect that he has

         applied his mind to the facts of the case and the law applicable

         thereto. Thus, any order which is passed in a routine and a

         mechanical manner with perfunctory details pointing towards

         non-application of mind ought not be considered to be legally

         sustainable.

                       9. As regards the contention of the learned senior

         counsel pertaining to the legal bar operating against the

         cognizance taken under Section 188 IPC, it would be expedient

         to quote both Section 195(1) (a) of the Cr.P.C. and Section 188

         of I.P.C.:-
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                               “Section188 of IPC- Disobedience to
                               order duly promulgated by public servant.
                               —
                               Whoever, knowing that, by an order
                               promulgated by a public servant lawfully
                               empowered to promulgate such order, he is
                               directed to abstain from a certain act, or to
                               take certain order with certain property in
                               his possession or under his management,
                               disobeys such direction,shall, if such
                               disobedience causes or tends to cause
                               obstruction, annoyance or injury, or risk of
                               obstruction, annoyance or injury, to any
                               person lawfully employed, be punished
                               with simple imprisonment for a term which
                               may extend to one month or with fine
                               which may extend to two hundred rupees,
                               or with both;and if such disobedience
                               causes or trends to cause danger to human
                               life, health or safety, or causes or tends to
                               cause a riot or affray, shall be punished
                               with imprisonment of either description for
                               a term which may extend to six months, or
                               with fine which may extend to one
                               thousand rupees, or with both.
                               Explanation.— It is not necessary that the
                               offender should intend to produce harm, or
                               contemplate his disobedience as likely to
                               produce harm. It is sufficient that he knows
                               of the order which he disobeys, and that
                               his disobedience produces, or is likely to
                               produce, harm.
                               Section 195 (1) (a) of the Code of
                               Criminal Procedure, 1973-
                               (1) No Court shall take cognizance -(a)
                               (i)of any offence punishable under sections
                               172 to 188 (both inclusive) of the Indian
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                               Penal Code (45 of 1860), or(ii)of any
                               abetment of, or attempt to commit, such
                               offence, or(iii)of any criminal conspiracy
                               to commit such offence, except on the
                               complaint in writing of the public servant
                               concerned or other public servant to whom
                               he is administratively subordinate;”
                      10. In view of the above-mentioned provision, it is

         clear that Section 188 IPC falls within the preview of the bar

         created by the Cr.P.C. under Section 195(1)(a) and in case an

         offence is committed under the aforesaid provision, a complaint

         before the jurisdictional Magistrate ought to be filed in writing.

         It would not be within the domain of the police to register a case

         for an offence involving Section 188 of the IPC and investigate

         the same since such a course is not permissible under law. If

         such cases upon police report are allowed to continue, that

         would frustrate the very purpose of Section 195 Cr.P.C., the

         object of which would be to prevent frivolous cases being filed

         under the provisions as mentioned under the said provision.

                      11. After having heard the submissions made by the

         learned senior counsel, this Court finds force in the contentions

         having been raised with regard to the fact that the order taking

         cognizance has been passed mechanically with no application of

         any judicial mind and secondly the application of Section 188 of

         the IPC stands barred under the provision of Section 195(1) (a)
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         of the Cr.P.C. On the above-mentioned grounds, this Court

         would have remitted the matter back to the jurisdictional

         Magistrate to consider the case afresh but the factual aspect also

         needs to be considered and taking into consideration the facts on

         record, it appears that the offences under the alleged provisions

         of law are not made out. There is no allegation of any theft

         having been committed and even in enquiry, no claim of

         ownership has been made and the offences of cheating etc. is

         also not made out on the basis of the allegations. There is only a

         bald allegation of illegal transportation of sand which could be

         covered under special Act and so far as application of the

         general provisions of IPC other than Section 188 IPC, being

         Sections 379, 420 and 409 of the IPC are concerned, the

         ingredients of these offences are also not made out and as such,

         the present case would be one covered by clause 1 and clause 6

         of the case of State of Haryana & Others Vs. Bhajan Lal &

         Ors. reported in 1992 Supp (1) SCC 335 and the said clauses

         are being quoted hereunder:

                             (1) Where the allegations made in the first information
                                 report or the complaint, even if they are taken at
                                 their face value and accepted in their entirety do not
                                 prima facie constitute any offence or make out a
                                 case against the accused.
                             (2)…...
                             (3) ….
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                                          (4) ……..
                                          (5) …….
                                          (6) Where there is an express legal bar engrafted in any
                                              of the provisions of the Code or the concerned Act
                                              (under which a criminal proceeding is instituted) to
                                              the institution and continuance of the proceedings
                                              and/or where there is a specific provision in the
                                              Code or the concerned Act, providing efficacious
                                              redress for the grievance of the aggrieved party.

                                   12. In view of the entire conspectus of the case,

                      submissions made on behalf of the petitioner, consideration of

                      the legal grounds as well as factual aspect and also taking into

                      consideration the law laid down in this regard as stated above,

                      this Court is of the view that the impugned order dated

                      30.09.2019 passed by learned Additional Chief Judicial

                      Magistrate, XIV, Chapra in Madhaura P.S. Case No.198 of 2016,

                      taking cognizance is not fit to be legally sustained and is thus set

                      aside.

                                   13. Accordingly, the present application stands

                      allowed.


                                                 (Soni Shrivastava, J)
devendra/-
AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          13.01.2026
Transmission Date       13.01.2026


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