- (1.) Heard Sri Ajay Sengar, learned counsel for the applicant and Sri Vimlendu Tripathi, learned A.G.A. This application under Section 482 Cr.P.C, is preferred against an order dated 27.10.2014 passed by Judicial Magistrate, Jalaun at Orai in Case Crime no. 1044 of 2009 (State of U.P. Vs. Raj Kumar and 69 others) under Sections 147, 353, 188 IPC and 7 Criminal Law Amendment Act, 1932 (short ''the Act of 1932), P.S. Kotwali Orai, Jhansi rejecting the discharge under Section 239 Cr.P.C. Background facts are as under: - An FIR as Case Crime no. 674 of 2009, under Sections 147, 353, 188 IPC and 7 of Act of 1932 came to be registered at P.S. Jalaun by Sri Pahup Singh, Officer-In-charge, P.S. Jalaun against 70 persons including the applicant on 29.9.2009 alleging that while the informant along with his fellow constables was assigned the duty of maintaining law and order during "Kshatriya Mahasabha Programme" an information was received that 60-70 persons led by one Surendra Singh of Gwalior were proceeding towards the prohibited zone, where Section 144 CrPC was clamped. On receiving the aforesaid information, the informant along with constables, reached the spot to find that 60-70 persons were carrying two dandas each with a placard bearing the writing "Jai Sriram, Maharana Pratap Amar Rahen, Dussehra Milan Samaroh, Akhil Bhartiya Kshatriya Mahasabha" whereas the other danda had an orange flag and all were shouting the slogans "Police Prashashan Murdabad; Jis Kshatriya Ka Khoon Na Khaula, Woh Khoon Nahin Woh Pani Hai; Karyakram Wahin Hoker Rahega". It was further alleged that Ram Sanehi Giri, A.S.I, challaned / arrested the aforesaid persons under Sections 151/107 & 116 CrPC. On a pointed query made by the informant from the processionists as to whether they have prior permission to take out the procession, they failed to furnish any evidence. When they were informed that prohibitory orders under Section 144 Cr.P.C, have been passed, they defiantly said that they would continue with the rally/ procession, which they did. Thus causing inconvenience to the passersby creating traffic jams. After investigation, a charge sheet dated 9.10.2009 was submitted against the applicant and 69 other persons by Ram Sewak Yadav, S.I. of the P.S. Jalaun, District Jalaun before the court concerned on 1.12.2009 under Sections 147, 353, 188 IPC and 7 of Act of 1932, and on the said date, the learned Magistrate took cognizance of the said offences and directed the issuance of the process against the charge sheeted accused persons including the applicant.Thereafter, the applicant claimed discharge on the ground that on the materials contained in the police report, no offence, whatsoever, was made out, which was dismissed by the impugned order dated 27.10.2014.
(2.) The first contention urged on behalf of the applicant is that under sub-section (2) of Section 7 of the Act of 1932, cognizance of an offence punishable under Section 7 thereof is barred, except upon a report in writing made by a police officer not below the rank of Officer-In-Charge of a police station. But, the police officer, who submitted the charge sheet was one Ram Sewak Yadav, S.I. of the P.S. concerned, who was not an Officer In-charge, thus no cognizance could be taken on a charge sheet filed by an incompetent person. The second contention was that considering the nature of the allegations made in the FIR/ police report, prosecution for an offence under Section 188 IPC was barred in view of the embargo laid under Section 195 (1) CrPC, i.e. no Court shall take cognizance except on a complaint in writing of the public servant concerned and as other offences, i.e. Sections 147 and 353 IPC are fall out of principal offence, i.e. Section 188 IPC, thus they too cannot be proceeded with.
(3.) Repudiating the aforesaid submissions, learned A.G.A, submitted that in view of the very definition of the word "officer In-charge" as contained in Section 2(o) of the CrPc, the S.I, too in certain contingencies was competent to lay a police report/ charge sheet in respect of an offence under Section 7 of the Act of 1932. He submitted in all fairness, that in so far prosecution under Section 188 IPC is concerned, same would be barred in view of the prohibition contained in Section 195(1) CrPC, but further contended that in so far Section 147/353 IPC are concerned, same being functionally and qualitatively different from an offence under Section 188 IPC, prosecution of the applicant in respect of said offences, i.e. Sections 147/ 353 IPC would not be barred.;