MUMBAI: Holding that no offence was made out against Maharashtra Navnirman Sena (MNS) chief Raj Thackeray, 55, the Bombay high court bench of justice Ajay Gadkari and justice Sharmila Deshmukh on Friday quashed a 2010 FIR and subsequent criminal proceedings against him for allegedly violating election code of conduct by overstaying in Kalyan Dombivali Municipal Corporation area ahead of civic elections then.
Swararaj alias Raj Thackeray, had in 2014 filed a quashing petition against the criminal proceedings arising out of the FIR registered by Dombivali police station.

The FIR was under section 188 (deliberate disobedience of an order that is duly promulgated by a public servant empowered by law to do so) of the Indian Penal Code (IPC) for violation of a notice.
Thackeray’s advocate Sayaji Nangre argued that the case be quashed since firstly the notice issued by a deputy police commissioner in Kalyan directing political party members from outside connect with a political rally or campaigning not to stay within the KDMC jurisdiction was not an ‘order’ as would fall under section 188 of IPC.
Agreeing with Nangre, the HC held that the notice was only communicated privately to Thackeray and not promulgated or published, as would be required for its disobedience to attract the offence under section 188, IPC.
The HC also held that there exists a bar under the criminal procedure code (CrPC) against the trial court taking cognizance of a section 188 IPC offence unless there is a complaint in writing to the magistrate by the Public Servant.
Under section 195 CrPC, “The bar is absolute and the Court could not have taken cognisance except on written complaint by the public servant,’’ held the HC, noting Nangre’s other argument on the bar against cognizance.
The charge sheet was filed before a judicial magistrate in Kalyan in 2011 who took its cognizance and issued him summons to appear on February 5. He did, sought and was granted bail, the same day.
In 2015 the HC stayed further proceedings before the Magistrate.
In the case, the HC held that the cognisance of the offence under Section 188 of IPC can be taken by the Magistrate only on the basis of complaint in writing of the public servant concerned or of his subordinate.
The HC said section 188 IPC has two parts, one of mere disobedience and second that if such disobedience of order “promulgated by a public servant’’ causes or tends to cause obstruction, annoyance or danger to human life, health or a riot it shall be punished.
“Mere disobedience of the order without the disobedience causing or tending to cause or attracting the risk of the intended consequence does not attract the offence under Section 188 of IPC,’’ held the HC, noting in this case the FIR alleged Thackeray had merely disobeyed. Besides, “promulgation’’ indicates some form of publication which was lacking in the notice issued by the police in Thackeray’s case, said the HC holding that the notice did not constitute an order whose disobedience could attract the offence.
The HC however hastened to add that its order should not be interpreted as a broad proposition of law against such prevention action taken by police under section 149 CrPC, where there may have been proper promulgation.
The HC thus held, “the notice issued …does not constitute an order duly promulgated and as such, no offence under Section 188 of IPC is made out. Admittedly, as cognisance was taken of the offence without any written complaint being filed, the prosecution stands vitiated’’ and allowing his plea quashed the criminal proceedings against Thackeray.
What HC considered
The HC thus had considered two issues–whether a notice issued under section 149 CrPC constitutes an ‘order promulgated’ by a public servant as meant under 188 of IPC, the disobedience of which would be an offence. And secondly “ Whether the provisions of Section 195(1)(a) of Cr.P.C constitutes a bar for taking cognisance of the offence under Section 188 of IPC based on police report in the absence of complaint in writing by the public servant concerned or his superior.’’
What the HC held
* In the facts of the present case, the notice issued to the Applicant under Section 149 of Cr.P.C does not constitute an order duly promulgated within the meaning of Section 188 of IPC
* The cognisance of the offence under Section 188 of IPC can be taken by the Magistrate only on the basis of complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
The law: Section 195 CrPC speaks of “Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.”
It stipulates that ‘No Court shall take cognizance-of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (IPC) …except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.”