Md. Tabish Saleem vs The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.2532 of 2018
CNR No. BRHC010417582017
Arising Out of PS. Case No.-71 Year-2016 Thana- BARHARIA District- Siwan
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Md. Tabish Saleem S/o Md. Saleem @ Salimullah , R/o Village-
Athkhambha, P.S.- Barharia, District- Siwan.
... ... Petitioner
Versus
The State Of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Md. Anisur Rahman, Adv.
Mr. Md. Khalid Arwan, Adv.
For the Opposite Party/s : Mr. Smt. Sahin Begam, APP
Mr. J.N. Thakur, APP
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CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
Date : 27-10-2026
Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed, in this petition under
Section 482 of the Code of Criminal Procedure, 1973, for quashing
of the order dated 27.10.2016 passed by the learned Chief Judicial
Magistrate, Siwan in G.R. No. 1494 of 2016 arising out of
Barharia P.S. Case No. 71 of 2016, by which cognizance has been
taken against him under Sections 451, 188, 171C, 353 and 504 of
the Indian Penal Code and the case has been transferred to the
court of the learned Additional Chief Judicial Magistrate X, Siwan
for trial, where it is numbered as Trial No. 1500 of 2017.

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3. The case was registered on the written report of
Maksood Alam, a Dafadar of Barharia police station. On
24.04.2016 he was on law and order duty at booth numbers 145,
146 and 147 in the Primary School, Athkhambha. Voting was
going on. At about 4.15 p.m. the petitioner, described as a boy of
about 25 years, came to the booth, abused and got ready to assault
the presiding officers. Voting stopped for some time. The police
force present there caught the petitioner and made him sit at the
booth. After about ten minutes the sector officer came with his
party and the petitioner was handed over to him. Section 144 of
the Code was in force. The written report reached the police
station at 7.15 p.m. The informant died on 29.11.2017. His death
certificate is on the record at flag B and the notice issued to him
was returned on that ground. He died even before this petition was
filed.
4. The case diary has been called for and it is on the
record. Paragraph 2 of the case diary is the further statement of the
informant. He has repeated the written report. Nothing has been
added to it.
5. Paragraph 3 is the statement of PTC 419 Lakshman
Rai. He was posted at the same booth along with the informant. He
has said the same thing in the same words. The petitioner came,

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abused, got ready to assault the presiding officers, voting stopped
for a while, the petitioner was caught and after ten minutes he was
handed over to the sector officer.
6. Paragraph 4 is the statement of Constable 707 Manish
Kumar Chaudhary. He was also on duty at the booth. His
statement is a copy of the statement of the informant, sentence by
sentence.
7. Paragraph 5 is the statement of Krishna Jee Pandey.
He was the Magistrate on duty at the booth. He has also said the
same thing. These are the only witnesses. No presiding officer of
booth 145, 146 or 147 has been examined, though the presiding
officers are the persons said to have been abused and threatened.
The sector officer to whom the petitioner is said to have been
handed over has not been examined. No voter standing in the
queue has been examined. The investigating officer visited the
place of occurrence (paragraph 7). On the supervision note of the
Superintendent of Police dated 30.04.2016 (paragraph 13) charge
sheet no. 179 of 2016 was submitted on 31.08.2016 and
cognizance followed.
8. Learned counsel for the petitioner has submitted that
the petitioner was a young boy at the time and he has been falsely
implicated because his cousin grandfather was contesting the

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election and the case was lodged at the instance of the rival side. It
has been submitted that there is no independent witness and the
three witnesses have merely repeated the informant. Learned APP
has opposed the prayer and has submitted that the witnesses were
government servants on election duty and had no reason to speak
falsely against the petitioner.
9. The Court has gone through the record. The entire
material against the petitioner is the written report of the informant
and the statements of three persons who were on duty with him.
Each of the three statements repeats the written report word for
word. There is nothing in them which the informant had not
already said. The informant is dead. The prosecution is now left
with two constables and a Magistrate who have only copied his
words. The allegation itself is of abusing and getting ready to
assault. No assault took place. No force was used on anybody. No
presiding officer has said that he was obstructed in his work.
Voting stopped for a few minutes and started again. The petitioner
was caught then and there and handed over. Nobody was hurt.
Nothing was damaged. Taken at its highest, the offence is petty.
10. There is one more defect which goes to the root of
the cognizance so far as Section 188 of the Indian Penal Code is
concerned. The petitioner is said to have disobeyed the order under

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Section 144 of the Code which was in force. Section 195(1)(a)(i)
of the Code bars every court from taking cognizance of an offence
punishable under Sections 172 to 188 of the Indian Penal Code
except on the complaint in writing of the public servant concerned
or of some other public servant to whom he is administratively
subordinate. No such complaint was ever made in this case. The
informant is a Dafadar. He is not the officer who promulgated the
order under Section 144 and his written report was made to the
police, not to the court. Cognizance under Section 188 was taken
on the charge sheet. In C. Muniappan v. State of Tamil Nadu,
(2010) 9 SCC 567 the accused had violated a prohibitory order
during an agitation and the Hon'ble Supreme Court held that the
provisions of Section 195 are mandatory, that the court cannot take
cognizance without such a complaint and that a trial held in its
absence is void ab initio being without jurisdiction. In paragraph
35 of the said judgment the Hon'ble Supreme Court has held as
follows:
“35. Undoubtedly, the law does not permit
taking cognizance of any offence under Section 188
IPC, unless there is a complaint in writing by the
competent public servant. In the instant case, no such
complaint had ever been filed. In such an eventuality
and taking into account the settled legal principles in
this regard, we are of the view that it was not
permissible for the trial court to frame a charge under
Section 188 IPC. However, we do not agree with the

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further submission that absence of a complaint under
Section 195 CrPC falsifies the genesis of the
prosecution case and is fatal to the entire prosecution
case.”
The cognizance taken under Section 188 of the Indian Penal
Code in the present case is, therefore, without jurisdiction. This defect
does not by itself touch the other sections, as the Hon'ble Supreme
Court noticed in the same paragraph. Those have been dealt with
above.
11. The occurrence is of April 2016. Cognizance was taken
in October 2016. This Court stayed further proceedings against the
petitioner on 19.11.2019 (Ashutosh Kumar, J) and the trial has not
moved since then. Hearing in this matter was concluded on
14.10.2026 and the order was reserved. More than ten years have
passed since the occurrence. The petitioner was a boy of about 25
years then. To send him to face trial now, on the evidence of three
official witnesses who repeat the words of a dead informant, for an
occurrence of a few minutes at a polling booth, would serve no
purpose. It would only keep a young man under the shadow of a
criminal case for the rest of his youth. Continuance of the proceeding
would be an abuse of the process of the court. This is a fit case for
exercise of the inherent power of this Court under Section 482 of the
Code of Criminal Procedure, 1973, now Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023.

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12. Accordingly, the petition is allowed. The order dated
27.10.2016 passed by the learned Chief Judicial Magistrate, Siwan in
G.R. No. 1494 of 2016 and the entire criminal proceeding in Trial No.
1500 of 2017, arising out of Barharia P.S. Case No. 71 of 2016,
pending in the court of the learned Additional Chief Judicial
Magistrate X, Siwan, so far as the petitioner is concerned, are hereby
quashed.
13. The interim order dated 19.11.2019 stands merged in
this order.
(Ansul, J)
Siddharth Soni/-
AFR/NAFR NAFR
CAV DATE 14.10.2026
Uploading Date 27.10.2026
Transmission Date 27.10.2026