Judgment N.K.Sinha, J. 1. The petitioners in their application under Section 482, CrPC prayed for quashing of prosecution of petitionerNos. 1 and 2 for offences under Section 188 and 447, IPC pending before the sub-divisional Judicial Magistrate, Patna City. 2. The facts relevant for disposal of this application may only be stated. Petitioner Nos. 1 and 2 are the Chairman and the Secretary respectively of Alka Sahnkari Grih Nirman Samiti Ltd., Patna, (hereinafter referred to as the Society) which is g body corporate and can institute and defend suit and other legal prccceedings. The Society has joined the application as petitioner No. 3. The Sub-divisional Magistrate O.P. No. 2 drew a proceeding under Section 144 Cr, P. C. on 24-12-1992 between Rita Singh O. P. No. 5 who was the first party and petitioner No. 1 and others who were the second party. A notice (Anxexure 1) was issued which purported to the land bearing 2 kathas in area ard appertaining to society plot No. 233. The contents of the notice have been described as absolutely vague general and hypothetical. The petitioners cafe is that the society had by a resolution dated 19-6-1992 bifurcated the plot into plot Nos. 233-A and 233-B both measuring 1 katha each plot No. 233-B was allotted to O. P. No. 5 and plot No. 233-A to one Sudhir Kumar Sharma by the same resolution and the decision was communicated to both of them. The society further decided that the previous allotment of the plot automatically stood cancelled. O.P, No. 5 was communicated cancelled. O. P. No. 5 was communicated the decision of the society by a letter dated 21-6-1992 copy of which is Annexure 2. It is further claimed that Sri Sudhir Kumar Sharma had already constructed his house in the plot allotted to him before initiation of the proceedings under Section 144, CrPC in December 1992. The entire proceedings under Section 144, CrPC has been described as a futile attempt oa the part of O. P. No. 5 to harass the petitioner. 3. By his order dated 30-9-1993 O.P.No. 2 directed filing of a com plaint against the petitioners under Section 188, IPC. A copy of the said order is Annexure 3. In his order O.P. No. 2 referred to an enquiry repart dated 25-9-1993 without disclosing it contents. 3. By his order dated 30-9-1993 O.P.No. 2 directed filing of a com plaint against the petitioners under Section 188, IPC. A copy of the said order is Annexure 3. In his order O.P. No. 2 referred to an enquiry repart dated 25-9-1993 without disclosing it contents. In pursuance of the aforesaid order O.P. No. 2 filed the complaint in the court of Addl Chief Judicial Magistrate, Patna City against petitioner Nos. 1 and 2 and one Gopendra Prasad, the Secretary of the society, petitioner No. 3 for their prosecution for offences under Section 188 and 477, IPC. A copy of the complaint petition is Annexure 5, The learned Addl. Chief Judicial Magistrate by his order, dated 25-11-1993 (Annexure 6) took cognizance uader Sections 188/447 IPC. 4. The application has been opposed both by the State as also O. P. No. 5 who has also filed a show cause. The case of O, P. No. 5 is that she had been allotted plot No. 233 of 2 kathas in area by the society vide letter dated 12-7-1983 after having paid the entire consideration money and had come in its possession. When her request to the Secretary of the society for registration of the said plot did not produce any result she filed a petition numbered as Miscellaneous Dispute No. 93/92 before the Additional Registrar, Co-operative Society under Section 48 of the Bihar and Orissa Go-operative Societies Act, 1935 on 14-12-1992 for compulsory registration of the disputed plot and for restraining the petitioner Nos. 1 and 2 from making any alteration in the allotment of the said plot. An order was passed on that very day restraining the petitioners from making any alteration in the allotment of the said plot and it was communicated to them vide a memo dated 16-12-1992. A photo copy of the letter dated 16-12-1992 is annexed as Annexure C to the show cause. It was only thereafter that O, P. No. 2 initiated the proceeding under Section 144, CrPC after learning that the demarcation made by her on the disputed plot was being demolished by the society. 5. A photo copy of the letter dated 16-12-1992 is annexed as Annexure C to the show cause. It was only thereafter that O, P. No. 2 initiated the proceeding under Section 144, CrPC after learning that the demarcation made by her on the disputed plot was being demolished by the society. 5. While a number of grounds have been taken in the petition for quashing the criminal prosecution, Sri Sidheshwari Prasad Singh learned counsel appearing for the petitioners in course of his argument confined and based his challenge only on the ground that neither the order of O. P. No. 2 directing the prosecution of the petitioners nor the complaint petition actually filed for such prosecution disclosed essential ingredients of an offence under Section 188, IPC and that the filing of the complaint for an offence under Section 447, IPC was wholly misconceived as O. P. No. 2 had passed no such order. He pointed out that mere disobedience of an order duly promulgated by a public servant is not by itself an offence unless it entails one or other of consequences mentioned in the section. The contention put forward by Mrs. Renuka Sharma No. 2 appearing for O.P. No. 5 and Sri Arbind Kumar Mishra appearing for the State is that the materials on the record disclosed all the ingredients necessary for constituting an offence under Section 188, IPC. 6. The complaint petition (Ext. 5) referred to the fact that notice under Sec. 144, CrPC restraining both the parties were legally and duly served on the parties on 30-12-1992 and 4-1-1993 respectively. It then proceeds to allege that irs spite of service of notice the accused persons which included petitioner Nos. 1 and 2 did not restrain themselves from going and digging Dewa and storing bricks, cement etc and continuing the construction work of the building on the disputed laud namely, societys plot No. 233 measuing 2 kathas in area and situated at mohaila Alka Colony in village Sandalpur within Sultanganj police statioa of Patna district. 1 and 2 did not restrain themselves from going and digging Dewa and storing bricks, cement etc and continuing the construction work of the building on the disputed laud namely, societys plot No. 233 measuing 2 kathas in area and situated at mohaila Alka Colony in village Sandalpur within Sultanganj police statioa of Patna district. The allegation in the complaint petition specifically made is that on 11-1-1993 at about 9 a.m. petitioner No. 1 and other accused alongwith some unknown labourers and masons were constructing the building and storing building materials with the help of labourers and masons over the disputed land and when O. P. No. 5 protested over their high handedness they became furious and violent and pounced upon to assault her whereupon O.P. No. 5 raised alarm attracting witnesses who saw the occurrence. The complaint refers to an enquiry made by Sri Gandheshwar Prasad, incharge, Control Room, Patna City who was entrusted with the enquiry and who submitted his report dated 25-1-1993. A copy of the enquiry report dated 25-1-1993 has been filed as Annexure D to the show cause petition filed by O. P. No. 5 O. P. No, 2 in his order dated 30-9-1993 (Annexure 3) whereby he directed the filing of a complaint against the petitioners has specifically referred to the enquiry dated 25-1-1993 (Annexure D). What is significant is that while the petitioners are sought to be prosecuted for having committed an offence under Section 188, IPC for the occurrence dated 11-1-93 specifically mentioned in the complaint petition, neither the enquiry report (Ext. D) nor the order (Annexure 3) directing filing of the complaint petition ha6 referred to the incident of 11-1-1993. If the enquiry was entrusted to the Magistrate after receipt of the petition filed by O. P. No. 5 regarding the incident dated 11-1-1993 when the offence alleged is said to have been committed, the enquiry officer was required to consider the allegations made by O. P. No. 5. The enquiring officer does not appear to have done any such thing with a view to find out whether the allegations regarding the incident dated 11-1-1993 was true drawn, instead he appears to have submitted his report that other party to the proceeding was disobeying the lawfully promulgated order passed in the proceeding under Sec. 144, CrPC by proceeding with the construction. Likewise O. P. No. 2 in his order in Annexure 3 did not consider at all this aspect of the case namely whether the allegations of disobedience said to have been committed on 11-1-1993 disclosed an offence under Section 188, IPC with a view to make up his mind regarding filing of a complaint for prosecution of the petitioners for the said offence. On the contrary O.P. No. 2 appears to have merely satisfied himself that the petitioners were disobeying his lawfully promulgated order and hence were liable for prosecution for offence under 188, IPC, It was argued on behalf of the petitioners that all this indicated in no uncertain terms that there was complete non-application of mind on the part of O.P. No. 2 |in directing the filing of the complaint petition and that at no such stage O.P. No, 2 was even prima facie satisfied about the existence of the various ingredients which made an offence under Section 188, IPC. 7. 7. This brings us to a discussion as to the ingredients necessary to constitute an offence under Section 188, IPC which reads as follows : "Disobedience to order duly promulgated by public servant.Whoever, knowing that, by an order promulgated by 1 public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management disobeys such direction ; shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both ; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." There is no dispute with regard to the legal proposition that mere disobedience of an order promulgated by a public servant lawfully empowered to promulgate such order does not constitute an offence under Section 188, IPC, Such an offence can be said to have been made out only if such disobedience causes or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed. It would also constitute an offence if such disobedience causes or tends to cause danger to human life, health or safety or causes or tends to cause riot or affray. It was argued that neither in the enquiry report nor in the order or the Sub divisional Magistrate directing the filing of the complaint or in the complaint petition itself there was anything to indicate that the disobedience had caused or tended to cause or even constituted or even risk, obstruction, annoyance or injury to any person lawfully employed. Learned counsel for the petitioners argued that there was no allegation that the disobedience caused or leaded to causa obstruction, annoyance injury or aay (sic) risk to any person lawfully employed. Learned counsel for the petitioners argued that there was no allegation that the disobedience caused or leaded to causa obstruction, annoyance injury or aay (sic) risk to any person lawfully employed. In this connection a Division Bench decision of the Calcutta High Court in Habibar Rahman V/s. Jagarnath Mondial, 1982 Cr LJ 1652 was referred to. Their Lordships while dealing with the true meaning and merit of the words. "Lawfully employed" referred to the provisions of Section 144 (3) CrPC whereby an order may be directed to person,* residing in a particular place or area or to the public generally when frequenting or visiting a particular place or area and that it is common knowledge that for enforcement of such orders persons such as police and other officials are lawfully employed. An offence would be committed only if disobedience of the order causes or tends to cause obstruction, annoyance or injury only to person so employed. In the instant case there is no allegation ia the complaint petition that any person lawfully employed was present at the time of the incident on 11-1-1993 and consequently there is no such allegation made in the complaint petition. Even if it is so an offence under Section 188, IPC can still be made out if the allegations disclosed that the disobedience causes or tends to cause danger to human life, health or safety or causes or tends to cause a riot or affray. 8 On behalf of the petitioners it was pointed out that the complaint petition (Annexure 5) did not contain any allegation that the disobedience caused or tended to cause danger to human life, health or safety or a riot or affray. All that has been alleged is that when O.P. No. 5 objected against the high handedness of the accused persons they became furious and violent and pounced upon her to assault her. The offence of rioting is said to be committed within the meaning of Section 146, IPC by a member of an unlawful assembly whenever force or violence is used by the unlawful assembly or by any member thereof in prosecution of the common object of such assembly. There is not a word in the complaint petition that the accused persons constituted an unlawful assembly and force or violence had been used by any member thereof in prosecution of the common object of such assembly. There is not a word in the complaint petition that the accused persons constituted an unlawful assembly and force or violence had been used by any member thereof in prosecution of the common object of such assembly. It was pointed out the complaint petitition did not contain any allegation of commission or any apprehension that the disobedience of ike order was likely to cause an affray. The offence of affray is said to be committed within the meaning of Section 159, IPC when two or more persons by fighting in a public place disturb the public peace. There is no even a suggestion that the place where the disobedience took place was a public place, On the contrary the materials on the record suggested that the place was the private land of the society and not a public place. In the circumstances there was nothing on the record to suggest that the disobedience of the order could cause or tend to cause the disturbance of the public peace by fighting in a public place. Learned counsel appearing for the State and O. P. No. 5 however, argued that the allegations made in the complaint petition did make out a case that the disobedience had caused or tended to to cause rioting. The essential element for constituting an unlawful assembly was the presence of five or more members. The complaint petition no where mentions that the accused persons or their associates numbered five or more. The complaint petition ought to disclose atleast the essential elements which go out to make a case that a particular offence was committed and inference ought not to be drawn that such ingredient existed by a process of reasoning for in that case one would be reading more than what had been actually stated in the complaint petition. Since the complaint petition was found not to disclose the element which constitute an offence under Section 188, IPC, the order of cognizance and the prosecution of the petitioners for the said offence must be held to be iucompetent. 9. Since the complaint petition was found not to disclose the element which constitute an offence under Section 188, IPC, the order of cognizance and the prosecution of the petitioners for the said offence must be held to be iucompetent. 9. It was argued at length that the prosecution of the petitioners deserved to be quashed also on the ground that the order (Anrexure 3) by which O. P. No. 2 directed the prosecution of the petitioners for the offence under Section 188, IPC did not disclose that O. P. No. 2 had found a prima facie case for such prosecution of the petitioners. The order dated 30-9-1993 (Annexure 3) referred to the enquiry made by Sri Prasad on 16-1-1993 and his finding that he found Raj Mistri working on the disputed land O.P. No 2 by Annexure 3 drew the inference that even after service of notice by the court the three accused persons had continued construction work on the disputed land which they were prohibited to do. There is nothing in the order to suggest that O. P. No. 2 applied his mind to the facts of the case to find out whether all the necessary elements which went to constitute an offence under Section 188, IPC existed. The prosecution appears to have been ordered only on the limited ground that the accused persons had violated the lawfully promulgated order by proceeding with construction on the disputed land. As already discussed earlier the admitted legal position is that mere violation of a lawfully promulgated order by a public servant is not an offence within the meaning of Section 188, IPC. Even the Magistrate incharge who made the enquiry and submitted his report (Annexure D) and which has been referred to in the order (Annexure 3) appears to have laboured under the impression that what he was required to enquire wab a mere disobedience of the lawfully promulgated order by the accused persons. It is difficult to avoid such an impression after reading the entire report (Annexure D). The enquiring officer no where appears to have referred to the existence or otherwise of the necessary elements which constitute an offence under Section 188, IPC. It is difficult to avoid such an impression after reading the entire report (Annexure D). The enquiring officer no where appears to have referred to the existence or otherwise of the necessary elements which constitute an offence under Section 188, IPC. In support of the contention that the order directing the prosecution of the accused by filing a complaint petition not being legal and valid the entire criminal prosecution deserves to be quashed, counsel for the petitioner relied on the decision in Parmeshwar Rai and others V/s. King Emperor, AIR 1932 Patna 84 The Court while dealing with an order of a Magistrate directing the prosecution of the accused for an offence under Section 188, IPC and which order had been passed under the provisions of Section 476 of the old Code of Criminal Procedure had observed that in giving a direction for prosecution the court is bound to find out that there is prima facie case with respect to all the elements which are essential to constitute the offence with respect to which the order is passed. It was also held therein that an order not setting forth all the elements of the offence is without jurisdiction. Counsel for the State pointed out that the decision is not relevant for it dealt with a case in which the matter had been brought to the High Court in revision after conviction of the accused uader Section 188, IPC. The decision in parmeshwars case (supra) was quoted with approval in another decision of this court reported in AIR 1960 Patna 125. The Court while setting aside the order of the District Magistrate directing the prosecution of the accused under Section 188, IPC had observed that the District Magistrate had not directed his mind to the most essential elements for constituting the offence. The earlier decision was accordingly followed to held that an order directing the prosecution which did not set forth all the elements or an offence covered by it is without jurisdiction. It is doubtful whether these decisions have any application to the facts of the present case. It is true that before filing a complaint as required under Sec. 195, CrPC the public servant or the court must satisfy itself that an offence mentioned in the clauses of sub-section (1) has been committed and should not like an ordinary litigant rush with a complaint to another court. It is true that before filing a complaint as required under Sec. 195, CrPC the public servant or the court must satisfy itself that an offence mentioned in the clauses of sub-section (1) has been committed and should not like an ordinary litigant rush with a complaint to another court. Perhaps the objective behind this is to ensure that the officer concerned had considered the matter before filing the complaint. It can also be argued that in considering whether the complaint is to be made or not by a public servant it is desirable that the public servant should have regard to the interest of public justice rather than to the gratification of private spite. The decision in Parmeshwars case (supra) was rendered with regard to the legality of an order passed under Section 476 of the Code of Criminal Procedure, 1898. The decision was rendered in the year 1922 i.e. before the amendment of Section 476 in the year 1923. The admitted legal position is that Section 340 of the new Code of Criminal Procedure which replaced Section 476 of the old Gode is not applicable to offences mentioned under Section 195 (l)(a) CrPC. Since the offence under Section 188, IPC is mentioned under Section 195 (l)(a) no enquiry under Section 340, CrPC before the filing of a complaint under Section 188 was required. In that view of the matter the provisions of old Section 476 after their amendment and of Section 340 of the new Code would not be attracted in the case of an offence under Section 188, IPC. However, all this is only of an academic interest and need not be decided for as already held above the complaint petition does not contain the essential elements which constitute an offence under Sec. 188, IPC. It also contains not a word which could constitute an offence under Sec. 447, IPC. The ciriminal prosecution based on such a complaint is fit to be quashed on this ground alone. 10. Thus the order dated 25-11-1993 (Annexure 6) of the learned Addl. Chief Judicial Magistrate taking cognizance of the said offences and the criminal prosecution of all the accused including the petitioners cannot be sustained. This application is, accordingly, allowed and the entire criminal prosecution quashed.