JUDGMENT : M. P. Varma, J. - This is an application filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for setting aside an ORDER :dated 16.2.1976, under which the Chief Judicial Magistrate had taken cognizance of the offence punishable under Section 186 of the Indian Penal Code, against the petitioners and also (or quashing of the criminal prosecution pending in the court below. 2. The case against the petitioners was instituted at Paraiya Police Station in the district of Gaya on a written complaint filed by the Block Development Officer of the Paraiya Block, alleging therein that the Block Animal Husbandary officer of Paraiya had attached the cattle belonging to the petitioner Md. Safait Hussain in a certificate proceeding. The cattle were handed over by the officer concerned to one Barho Dusadh, who has been described as a Gorait of village, Baghi under Paraiya Police Station in the district of Gaya. On the day following Barho Dusadh was taking the cattle to Paraiya Block and it is alleged that the two petitioners, aforementioned, accosted Barho Dusadh and took away the cattle. 3. On the basis of the complaint aforesaid the police registered a case vide Paraiya P.S. Case No. 10(1)70 under Section 379 of the Indian Penal Code. A copy of the complaint petition, which was treated as the first information report, has been attached to the application as Annexure-1. The police, after investigation, submitted final form and reported the case to be mistake of facts. The Chief Judicial Magistrate by his ORDER :dated 16.2.1976 disagreed with the final form and took cognizance of the offence against the petitioners punishable under section 186 of the Indian Penal Code and summoned them to take their trial for the charge alleged. The aforesaid ORDER :is under challenge before this court. 4. The counsel for the petitioners has submitted that the impugned ORDER :is hit by Section 195 of the Code as no complaint was filed before the Chief Judicial Magistrate by a public servant. Section 195 speaks that no Court shall take cognizance of any offence punishable under Section 186 of the Indian Penal Code except on the complaint in writing of the public servant concerned. In the instant case, the police submitted final form under Section 173 of the Code and reported the case to be based on mistake of facts. Section 195 speaks that no Court shall take cognizance of any offence punishable under Section 186 of the Indian Penal Code except on the complaint in writing of the public servant concerned. In the instant case, the police submitted final form under Section 173 of the Code and reported the case to be based on mistake of facts. In other words, there was no valid complaint before the Chief Judicial Magistrate alleging the facts constituting any offence, inasmuch as there was no prayer for taking action against the petitioner in the final form submitted by the police. It appears that the Chief Judicial Magistrate, being ignorant of the fact that the case was hit by Section 195 of the Code, made the following observations to overcome the legal impediment standing in the way for prosecuting the petitioners. The learned Chief Judicial Magistrate has observed as follows in the impugned ORDER :: "…….the I.O. submitted final report but the D.I. has said that there is a prima facie case under Section 186 I.P.C. I agree with the opinion of the D.I. As the complaint has been filed by the B.D.O. to whom the Block Animal Husbandry Officer is subordinate, the requirement of Section 195 Cr.P.C. is fulfilled. Accordingly, cognizance of the offence u/s 186 I.P.C. is taken……." The aforesaid observations of the learned Chief Judicial Magistrate exhibits that the Magistrate was labouring under wrong notion of law. There was no valid complaint before him by any public servant concerned, inasmuch as the observation of the D.I. in the case diary cannot be treated as the petition of complaint and at the same time it was wrong for the learned Chief Judicial Magistrate to have taken cognizance of the offence holding to be a case under Section 186 of the Indian Penal Code on the opinion of the D.I. Needless to mention here that D.I. was equally wrong in giving such opinion in which the officer concerned investigating the case submitted report stating the case to be based on mistake of facts. There is yet another ground argued by the counsel for the petitioners, which also shows the entire ORDER :dated 16.2.1976 is quite illegal. There is yet another ground argued by the counsel for the petitioners, which also shows the entire ORDER :dated 16.2.1976 is quite illegal. In the written report submitted to the officer-in-charge at police station Paraiya, which has been treated as the F.I.R. of the case vide Annexure-1, there is clear averment of the fact that the cattle seized in relation to a certain case was handed over to one Barho Dusadh, a Gorait of village Baghi. This happened on 20th January 1970. On the day following i.e. on 21st January, 1970 Barho Dusadh was taking the cattle to Paraiya Anchal when it is alleged that the petitioners accosted Barho Dusadh and seized the cattle from his possession. The allegation is that the petitioners took the cattle away. It has not been stated anywhere in the petition of complaint that Barho Dusadh was a public servant or was, at any stage, entrusted with the discharge of a public function. Even assuming, as stated in the petition of complaint, that the petitioners offered any resistance to Barbo Dusadh, who was taking away the cattle to Paraiya Anchal, no offence under Section 186 of the Penal Code is made out against the petitioners and obviously the Chief Judicial Magistrate appears to have acted mechanically without applying the mind to the facts of the case in accepting the report of the D.I. in treating the same to be a petition of complaint filed by the public servant and that the fact constitute any offence punishable under Section 186 of the Code. 5. With the above observations, the application succeeds, the impugned ORDER :dated 16.2.1976 is set aside and the criminal prosecution pending against the petitioners is hereby quashed.