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1981 DIGILAW 39 (PAT)

Bishundeo Yadav @ Narain Yadav v. State of Bihar

1981-02-14

M.P.VARMA

body1981
JUDGMENT : M.P. Varma, J. – By an ORDER :dated the 17th October, 1979, passed in case no. 371 C-2 of 1979, the Chief Judicial Magistrate of Monghyr has taken cognizance of an offence under section 188 of the Indian Penal Code against the petitioners. The propriety and correctness, of the said ORDER :has been challenged by them in this application filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’). 2. The short facts of the case are as follows. On the basis of a police report, dated the 21st November, 1977, the Subdivisional Magistrate, Sadar, Monghyr, was pleased to draw up a proceeding under section 144 of the Code of Criminal Procedure between one Banarsi Mandal as first party and these petitioners as the second party. The dispute between the parties arose with respect to some culturable lands appertaining to khata no. 5, plot no. 12 situate in village Lohchi Pachrukhi under police station Dharahra in the district of Monghyr. The Subdivisional Magistrate by ORDER :dated the 24th November, 1977 called upon the parties to show cause why the rule be not made absolute against either of the parties. It is stated that these petitioners on receipt of the notice filed their show cause with respect to the allegations made against them in the court of the Subdivisional Magistrate. It is further stated that the first party, Banarsi Mandal, filed an application in the court of the Subdivisional Magistrate stating therein that on the 7th December, 1977, he got an information that the members of the second party of the said proceeding, that is, these petitioners, were looting the standing crops grown on the disputed plot. He, therefore, went running there and protested, whereupon the petitioners abused them. He, therefore, moved before the Subdivisional Magistrate with a prayer that an action under section 188 of the Indian Penal Code be taken against these petitioners. The Subdivisional Magistrate thereupon issued another notice calling upon these petitioners to show cause as to why action under section 188 of the Indian Penal Code be not taken against them. This was numbered as case no. 510-M 2 of 1977. It is stated that the petitioners filed their show cause in which they denied the allegations levelled against them. The Subdivisional Magistrate thereupon issued another notice calling upon these petitioners to show cause as to why action under section 188 of the Indian Penal Code be not taken against them. This was numbered as case no. 510-M 2 of 1977. It is stated that the petitioners filed their show cause in which they denied the allegations levelled against them. In their show cause, they stated that they were the Bataidars of the plot in dispute and did not commit any offence as alleged. By ORDER :dated the 18th October, 1978, the Subdivisional Magistrate, without hearing the petitioners, directed for a petition of regular complaint to be filed against these petitioners for prosecuting them under section 188 of the Indian Penal Code. 3. The petitioners against the aforesaid ORDER :filed an application in revision before the Sessions Judge of Monghyr. The validity of the ORDER :was challenged on the ground that the Subdivisional Magistrate did not grant a reasonable opportunity to these petitioners of being heard inasmuch as the Subdivisional Magistrate did not consider the show cause filed on their behalf, nor did he apply his mind to the facts of the case before issuing directives for filling the complaint. 4. The ORDER :of. the Subdivisional Magistrate was challenged in revision before the Sessions Judge, who set aside the ORDER :of the Subdivisional Magistrate dated the 18th October, 1978 and directed that the Subdivisional Magistrate on hearing the parties would consider the desirability of filing a regular Complaint against these petitioners under section 188 of the Indian Penal Code. The records of the case were transmitted to the court of the Subdivisional Magistrate and, on the 16th October, 19779 these petitioners made a prayer for an adjournment to address the court on the show cause which they had filed earlier as per direction of the Sessions Judge. The Subdivisional Magistrate, instead of granting adjournment, passed an ORDER :to the following effect : ^^izFke i{k dh vksj ls gktjh nh x;h 14] foif{k;ksa esa ls 1 dh vksj ls gktjh rFkk 3 dh vksj ls odkyr gktjh nh x;h foi{kh ny ds vf/koDrk us le; dk vkosnu fn;kA ml ij izFke i{k ds vf/koDrk us crk;k fd fyfeVs’ku yxkus dh fu;e ls fojks/kh ny ckj&ckj le; dk vkosnu nsrs gSaA eSa ml rdZ ls lger gw¡A ml dk;Zokgh ds varxZr /kkjk 188 vkbZE ihE lhE varxZr djus gsrq Hkst nsaA 5. Thus, from the aforesaid paragraph, I find that the records of the case were sent to the court of the Chief Judicial Magistrate for taking action, and, the Magistrate in his turn took cognizance of the offence against these petitioners under section 188 of the Indian Penal Code and issued processes against them, This impugned ORDER :is under challenge before this Court. 6. The learned Counsel for the petitioners has attacked the validity and also the legality of the ORDER :on the ground there was no petition of complaint before the Chief Judicial Magistrate. In absence of any valid complaint before him, the ORDER :taking cognizance against these petitioners is violative of the mandatory provision as laid down under section 195(1) of the Code. It is stated that no Court shall take cognizance of an offence punishable under section 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned. In the instant case, the Chief Judicial Magistrate proceeded to take action on the ORDER :dated the 16th October 1979, in which it had been stated that the records should be sent to the court of the Chief Judicial Magistrate for taking action under section 188 of the Indian Penal Code. The Chief Judicial Magistrate also in the impugned ORDER :dated the 17th October, 1979 has stated that as per direction contained in the ORDER :dated the 16th October, 1979, cognizance of the offence under section 188 of the Indian Penal Cede is taken. This approach is wholly incorrect. The impugned ORDER :does not show that the Magistrate, at any stage, looked into the records of the case, and the complaint petition filed in this connection. It is apparent that he did not apply his mind to the case to find out if the facts constituted any such offence, as alleged. 7. However, Shri Bhupendra Narain Sinha addressed this Court on behalf of the informant and submitted that, in fact, a regular complaint was filed which is on the record. This complaint, is dated the 19th November 1978. It has been urged that this complaint was filed in pursuance of the earlier ORDER :passed by the Subdivisional Magistrate in the aforesaid case for lodging a complaint against these petitioners for disobedience of the prohibitory ORDER :passed under section 144 of the Code. This complaint, is dated the 19th November 1978. It has been urged that this complaint was filed in pursuance of the earlier ORDER :passed by the Subdivisional Magistrate in the aforesaid case for lodging a complaint against these petitioners for disobedience of the prohibitory ORDER :passed under section 144 of the Code. The learned advocate has submitted that in view of the fact that there was a petition of complaint on the record, it cannot be said that the Chief Judicial Magistrate did not apply his mind to, the, facts of the case and it must be understood for all practical purposes. that he took cognizance of the offence on the petition of complaint which was on the record. It is difficult to accept such argument. True it is that there is a petition of Complaint on the record, but the impugned ORDER :dated the 17th October, 1979 which is under challenge does not show in the least that the Chief Judicial Magistrate ever took care to look into the petition of complaint and follow the procedure as laid down in section 195(1) of the code. Needless to repeat that a court shall not take cognizance of an offence punishable under section 188 of the Indian Penal Code except on a petition of complaint in writing. The Chief Judicial Magistrate in his ORDER :could have very well said that he looked into the petition of complaint which on the facts, as alleged, constitute an offence under section 188 of the India Penal Code. Instead of applying his mind to the facts of case, the learned Magistrate directs in his ORDER :dated the 17th October. 1970 that in obedience to direction as given by the Subdivisional Magistrate on the 16th October, 1979, he took cognizance of the offence. It may be further mentioned here that the petitioners had earlier challenged the validity of the ORDER :passed by the Subdivisional Magistrate in revision before the Sessions Judge. The learned Sessions Judge had also observed that the subdivisional Magistrate would give a chance to the petitioner to be heard on the merits of the case and, on a consideration of the show cause, he will consider the desirability of filing a regular complaint, if a prima facie case is made out. The learned Sessions Judge had also observed that the subdivisional Magistrate would give a chance to the petitioner to be heard on the merits of the case and, on a consideration of the show cause, he will consider the desirability of filing a regular complaint, if a prima facie case is made out. In view of this observation of the learned Sessions Judge, the Chief Judicial Magistrate while taking cognizance of the offence should have taken care to find out if there was any regular complaint on the record, on the basis of which he could have proceeded to take action. It is crystal clear that the Chief Judicial Magistrate took cognizance of the offence mechanically by his ORDER :dated the 17th October, 1979 on the; basis of the ORDER :passed by the Subdivisional Magistrate on the 16th October, 1979. The impugned ORDER :docs not show the materials on which he came to a finding that there was a Prima facie case for taking action under section 188 of the Indian Penal Code. The ORDER :, therefore, is bad in law and is fit to be set aside. 8. Before I part with this case, learned Counsel of the petitioners has raised another point that the case is barred by limitation. It has been stated that the cognizance of the offence should have been taken only within a period of one year from the date of the commission of the offence as laid down under section 462 of the Code. I do not like to express my opinion on this issue at this stage as it has been noticed that the petitioner had gone to the Sessions Judge in revision against an earlier ORDER :passed by the Subdivisional Magistrate and the validity of the subsequent ORDER :dated the 17th October, 1979 has been challenged before this Court under section 482 of the Code. However, in the circumstances referred to above, this application succeeds and the impugned ORDER :dated the 17th October, 1979 is hereby set aside. 9. The Chief Judicial Magistrate is, of course, competent to take action under section 188 of the Indian Penal Code only on a written complaint filed before him as envisaged under section 195(1) of the Code; and, in the circumstances if he so likes, be likes, he may proceed to dispose of the matter in accordance with law. Application allowed.