The Patna High Court set aside the Magistrate’s order

In a recent judgment, the Patna High Court struck down the cognizance of the offense under Section 188 of the Indian Penal Code (IPC) by a judicial magistrate.

The court held that liability for an offense under Section 188 CrPC cannot be accepted on the basis of a police report and must strictly follow the requirements of Section 195(1)(a) of the Code of Criminal Procedure (CPC).

Justice Jitendra Kumar, presiding over the case, observed “The Magistrate has no power to take cognizance of an offense punishable under section 188 of the Ministry of Criminal Law in a police report. He can take cognizance of such an offense only upon the complaint of the civil servant whose order was violated, or upon the complaint of an administratively superior civil servant.”

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

The court in its judgment noted that Section 195(1)(a) of the CrPC expressly states that, “The general powers of the magistrate to take cognizance of an offense known to the police are limited by the provision that responsibility for an offense punishable under Sections 172-188 of the IPC may be accepted only upon a written complaint of the relevant civil servant or his administrative senior civil servant. In other words, the Magistrate cannot take cognizance of an offense punishable under Section 188 Cr.P.C., after reporting to the police, even though the offense under Section 188 Cr.P.C. is cognizable under Schedule 1 to Cr.P.C.’

The court stated “Even otherwise, there is no clear case under Section 188 IPC as per the averment made in the written report.”

In addition, the court noted the flaws in the written report, which was the basis of the FIR. Judge Kumar noted, “there is no reference to the order being promulgated and not being executed, let alone any other constituent offenses under section 188 IPC having been satisfied.”

The Court also held that this case was covered by the principles set out in s State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335), where it took place “Where the allegations made in the first information report or complaint, even if taken at face value and accepted in their entirety, do not prima facie constitute any offense or argument against the accused.”

Revoking the Magistrate’s order, the High Court reiterated that jurisdiction under Section 188 IPC must strictly conform to the mandatory requirements of Section 195 IPC and any deviation renders the proceedings null and void.

Case Name: Bijay Kumar @ Bijay Kumar Bimal Vs State of Bihar

LL Citation: 2025 LiveLaw (Pat) 3

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