Cognizance Of Offence U/S 188 IPC Requires Complaint By Public Servant, Not FIR: Patna High Court Quashes Magistrate's Order

The Patna High Court in a judgment delivered recently, quashed the cognizance taken by the Judicial Magistrate of offence under Section 188 of the Indian Penal Code (IPC).

The court held that cognizance for the offence under Section 188 IPC cannot be taken on the basis of a police report and must adhere strictly to the requirements of Section 195(1)(a) of the Code of Criminal Procedure (CrPC).

Justice Jitendra Kumar, presiding over the case, observed, “The Magistrate is not competent to take cognizance of an offense punishable under Section 188 IPC on a police report. He can take cognizance of such offense only on the complaint of the public servant whose order has been violated or on the complaint of an administratively superior public servant.”

The case arose from an incident in April, 2014, when a political rally allegedly violated the Model Code of Conduct by continuing beyond the permitted time and landing a helicopter against restrictions. Based on a report by the Block Development Officer, an FIR was registered, and a charge sheet filed, leading the Magistrate to take cognizance of offenses punishable under Section 188 IPC.

The Court, in its judgement, observed that Section 195(1)(a) CrPC explicitly states that, “general power of Magistrate to take cognizance of a cognizable offence on police report is curtailed by providing that cognizance of offence punishable under Sections 172 to 188 IPC can be taken only upon the complaint in writing of the public servant concerned or his administratively superior public servant. In other words, a Magistrate cannot take cognizance of offence punishable under Section 188 IPC upon police report, though the offence under Section 188 IPC is cognizable as per schedule 1 to Cr.PC.”

The Court stated, “Even otherwise, no prima facie case is made out under Section 188 IPC as per the allegation made in the written report.”

The Court further highlighted the deficiencies in the written report that formed the basis of the FIR. Justice Kumar observed, “there is no reference to the order which has been promulgated and disobeyed, let alone any other ingredients of the offence under Section 188 IPC being satisfied.”

The court also found the present case to be covered by the principles laid down in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335], where it was held that “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.”

Quashing the Magistrate's order, the High Court reiterated that cognizance under Section 188 IPC must strictly comply with the mandatory requirements of Section 195 CrPC, and any deviation renders the proceedings void.

Case Title: Bijay Kumar @ Bijay Kumar Bimal vs State of Bihar

LL Citation: 2025 LiveLaw (Pat) 3

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