Patna High Court
KUMAR VANSH GIRI @ KUMAR RAGHUVANSH GIRI @ KUMAR VANSH @ HARIVANSH GIRI @ RAGHUVANSH GIRIversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SONI SHRIVASTAVA
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
- Code of Criminal Procedure, 1973 — s. 190, 195(1)(a)
- Indian Penal Code — s. 188, 34, 379, 409, 420
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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