Monday 22 February 2021

Whether police can file a chargesheet against the accused for an offence U/S 188 of IPC?

 Hence, on going through the provisions of Section 195 of the Cr.P.C., as also in the light of the ratio laid down by the Supreme Court in the decisions noted above, one can safely hold that there is a statutory bar to the court for taking cognizance unless a private complaint in writing is made by a public servant whose lawful order has not been complied with. As per ratio laid down by the Supreme Court, there is an absolute bar to the court for taking cognizance of a case registered under Section 188 of the Indian Penal Code except in the manner provided under Section 195 of the Cr.P.C.

27. Thus, I am of the considered opinion that the registration of the case by the police for the offence under Section 188 of the IPC was illegal and on the basis of such FIR, the investigation conducted by the police and the charge-sheet filed before the court was wholly illegal and without jurisdiction. Once, it is held that registration of FIR under Section 188 of the IPC was not permissible in law, the registration of FIR for other offences, which are non-cognizable and investigation of the same without the permission of Jurisdictional Magistrate was not permissible in view of the express bar created under sub-section (2) of section 155 of the Cr. P.C.

Patna High Court
Prakash Jha vs The State Of Bihar & Ors on 31 July, 2017
Read full Judgment here: Click here
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