CRL.P/5767/2025 of ANIL KUMAR C Vs SRI NANJAIAH on 20 August 2026

ORAL ORDER

The petitioner is before this Court seeking the following prayer: "WHEREFORE, the Petitioner humbly prays that this Hon'ble court be pleased to call for records and quash the entire proceedings in C.C.No.523/2023, pursuant to the private complaint in PCR No.66/2023 dated 27.04.2023, pending on the file of Civil Judge and J.M.F.C., H.D.Kote, for the offence punishable under section 188 of the Indian Penal Code, 1860, in the interest of justice."

2. Heard Sri. Venkatesh Dalwai, learned counsel appearing for the petitioner and Sri. S.R. Dodwad, learned counsel appearing for respondent No.2.

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3. Sri. Venkatesh Dalwai, learned counsel appearing for the petitioner would submit that the issue in the lis stands completely answered by the judgment rendered by the Co-ordinate Bench of this Court.

4. Sri. S.R. Dodwad, learned counsel appearing for respondent No.2 would not dispute the position of law, as is laid down by the Co-ordinate Bench.

5. The Co-ordinate Bench in Crl.P.No.7228/2023 and connected matters disposed on 27.02.2024 has held as follows:

"The fact matrix of both these cases is substantially similar and they arise from the very same complaint as well wherein violation of the provisions of Section 188 of Indian Penal Code, 1860 has been alleged. Cognizance having been taken by the learned Judge of the Court below, process has been issued to the accused/petitioners. That is how they are before this court seeking quashment of the same.

2. Learned Sr. Advocate Mr.Aruna Shyam appearing for the petitioners submits that the cognizance of the offence could not have been taken by the court below, the private complaint filed u/s 200 of the Code of Criminal Procedure, 1973, for the subject offence itself being incompetent. In support of this, he banks upon of a Coordinate Bench decision in W.P.No.13328/2018 (GM- RES) between SRI. RAJASHEKHARANANDA SWAMIJI AND ANOTHER vs. STATE OF KARNATAKA, disposed off on 18.6.2021. He further submits that the provisions of Section 195 of the Code of Criminal Procedure, 1973

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having been held mandatory by the Apex Court in SALONI ARORA V. STATE (NCT OF DELHI), (2017) 3 SCC 286, the quashment has to be granted by this court.

3. Learned Addl. SPP appearing for the respondent opposes the petitions contending that there can be delegation of power to lodge the complaint and therefore, in such an event, the author who promulgated the order in question need not go before the court to complain. Even otherwise, according to him, the arguable infirmity not going to root of the matter, no relief can be granted to the petitioners, as prayed for. So contending, he seeks dismissal of the petitions.

4. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is inclined to grant relief to the petitioners, broadly agreeing with the submission made on their behalf. Similar question had cropped up before the Coordinate Bench in Rajashekharananda Swamiji supra. A paragraphs 8 & 10 of the judgement, it is observed as under:

“8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.

10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy1, the Hon'ble Supreme Court held as follows:

“8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is

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necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub- section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld.”

(Emphasis supplied)” The above observations come to the aid of petitioners.

5. The vehement submission of learned Addl. SPP that there can be delegation of “power to complain” in terms of promulgated order in question, is bit difficult to countenance in the absence of such delegation being demonstrated from the text of the said order itself. It has been a settled position of law vide In Re Delhi Laws Act, 1951 SCC OnLine SC 45 that a delegate cannot further delegate: delegatus non potesta potestas delegare. Contra having not been shown, the contention of the kind cannot be countenanced.

In view of the above, these petitions being meritorious are allowed to meet the ends of justice and to prevent the abuse of process of the court; the impugned proceedings in C.C.No.24636/2022 pending on the file of learned VI Addl. Chief Metropolitan Magistrate, Bengaluru, are quashed."

In the light of the issue standing covered by judgment rendered by the Co-ordinate Bench and the facts being undisputed, the petition stands disposed on the same terms.

5. For the aforesaid reasons, the following:

ORDER

(i) The criminal petition is allowed.

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(ii) The proceedings in C.C.No.523/2023 pursuant to private complaint in PCR No.66/2023 pending on the file of Civil Judge and J.M.F.C., H.D. Kote, stands quashed.

Sd/- (M.NAGAPRASANNA) JUDGE

JY List No.: 1 Sl No.: 16