Judgment Naresh Kumar Sinha, J. 1. The petitioner is an accused in C. R. case No.5605 of 1990 (State V/s. Sushil Kumar modi and others) pending in the Court of the Judicial Magistrate, IInd class, patna, and he has invited the inherent powers of this Court under Sec.482 of the Code of Criminal Procedure (hereinafter the code) for quashing the order dated 7-11-90 taking cognizance of the offence under Sections 143 and 188 of the Indian Penal Code and his criminal prosecution based thereon. 2. Only each of the facts as are necessary for disposal of the application need be stated. One Bashishtha Narain singh, A. S. I. of Police filed a written report before the officer-in-charge of kotwali police station on 28-10-90 stating, inter alia, that he along with other members of the police force and the magistrate were on law and order duty near the Patna Jn. Mahavir Temple. At about 12-30 p. m. several groups of people after violating the prohibitory order under Sec.144 of the Code started going towards the city raising anti religious slogans. A number of persons were arrested whose names were given and enclosed with the written report. On the allegations made an offence under Sec.188 IPC was said to have been committed. The police registered a case and after investigation submitted charge sheet under Sections 143 and 188 I. P. C. on the basis of which the impugned order taking cognizance was passed. 3. Mr. Ravi Shanker Prasad learned Counsel appearing for the petitioner pressed the application mainly on the ground that this case which was essentially for an offence under Sec.188 IPC was an abuse of the process of the Court as no cognizance of the offence could have been taken on the F. I. R. lodged by the A. S. I. of police. Learned Counsel referred to the provisions of Sec.195 of the code which inter alia provides that no court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal code or of any abetment of or attempt to commit such offence or of any criminal conspiracy to commit such offence except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It was contended that the order promulgating section 144 of the Code for the disobedience of which the petitioner was sought to be prosecuted for an offence under Sec.188 IPC was that of the sub-divisional Magistrate and the complaint in terms of the provisions of Section 195 of the Code should have been filed in writing by the public servant concerned namely the S. D. M. or by some other public servant to whom he was administratively subordinate. It is no bodys case that the A. S. I. was the public servant concerned within the meaning of Sec.195 of the Code and was, therefore, competent to file a complaint. 4. Mr. Prasad further contended that the provisions of Sec.195 of the code do not contemplate lodging of an f. I. R. in respect of an offence under section 188 IPC by any person including the public servant concerned. It is not necessary to consider this argument in detail for the simple reason that the a. S. I. who filed the written report on the basis of which F. I. R. was drawn was admittedly not the public servant concerned or a public servant to whom the public servant concerned was administratively subordinate. However, it must be stated in favour of the aforesaid contention put forward on behalf of the petitioner that the scheme of Section 195 of the Code visualise only filing of a complaint by the public servant or of some other public servant to whom he is administratively subordinate and does not contemplate lodging of an F. I. R. by such public servant or of some other public servant to whom he is administratively subordinate. While subsection (1) of Sec.195 of the Code, inter alia, provides that no Court shall take cognizance of an offence punishable under Sec.188 IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Sub-section (2) provides that where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court. Sub-section (2)further provides that upon its receipt by the Court, no further proceedings shall be taken on the complaint. Sub-section (2)further provides that upon its receipt by the Court, no further proceedings shall be taken on the complaint. Thus a bare reading of the provisions of Sec.195, prima facie does not visualise filing of an F. I. R. by the public servant concerned or of some other public servant to whom he is administratively subordinate which allegation could be investigated by the police. If the provisions were interpreted to include filing of an f. I. R. , it may create an anamolous situation where an F. I. R. filed by a public servant for disobedience of an order duly promulgated by him will be subject matter of investigation by the police and the Police will have the discretion either to submit a charge sheet or a final report. In this regard it may be mentioned that "complaint" has been defined by clause (d) or Sec.2 of the code to mean any allegation made orally or in writing to a Magistrate with a view to his taking action under the code that some person whether known or unknown has committed an offence but does not include a police report. 5. It was argued by Sri S. D. Yadav learned G. P.8 on behalf of the State that even if cognizance for an offence under Sec.188 IPC was not competent on the basis of the F. I. R. lodged by the A. S. I. and the prosecution of the petitioner for such an offence could not proceed for that reason, the criminal prosecution of the petitioner for the offence under Sec.143 IPC for which charge sheet had been submitted cannot be quashed. Sri Yadav argued that both the offences were quite distinct and the survival of one was not dependent upon the other; Mr. Prasad on the contrary argued that the incident reported in the written report must be viewed as a whole and the contents of the F. I. R. left no room for doubt that the petitioner as also forty others all named therein had been prosecuted for committing an offence under section 188 IPC for violation of orders promulgated under section 144 of the Code. As a matter of fact the police A. S. I. specifically claimed that he had arrested the petitioner and others for violation of me prohibitory orders under Sec.144 or the Code. As a matter of fact the police A. S. I. specifically claimed that he had arrested the petitioner and others for violation of me prohibitory orders under Sec.144 or the Code. The written report also ended with a request that a case under Sec.188 IPC be instituted against those who had been arrested including the petitioner and whose names were enclosed in a list with the written report. 6. If the petitioner and those similarly situated co-accused could not be prosecuted for commission of an offence under Sec.188 IPC for which alone the F. I. R. was lodged, could they be prosecuted for an offence under section 143 I. P. C. Sec.143 I. P. C provides that whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. If the allegations contained in the written report are liberally construed in favour of the State, the petitioner could be described as member of an unlawful assembly the common object of which was to violate prohibitory orders under section 144 of the Code. The police a. S. I. was near the Mahavir temple at patna railway Jn. and at about 12.30 p. m. the accused persons who were in different groups started proceeding towards the town raising anti religious slogans in violation of the orders under section 144 of the Code. Since the accused persons who were arrested were as many as 41 including the petitioner, such members were members of an unlawful assembly the common object of which was to violate prohibitory orders under Section.144 of the Code punishable under Sec.188 I. P. C. Since the petitioner or for that matter others similarly situated co-accused could not be prosecuted for an offence under Section 188 I. P. C. for reasons already mentioned earlier, they could not be lawfully prosecuted for offence under section 143 I. P. C. when cognizance of the offence which constituted the common object was itself not competent for want of complaint of the public servant concerned. An unlawful assembly has been defined under Sec.141 of the indian Penal Code. An assembly of five or more persons is designated an " unlawful assembly" if the common object of the persons composing that assembly is any of the five objects mentioned therein. An unlawful assembly has been defined under Sec.141 of the indian Penal Code. An assembly of five or more persons is designated an " unlawful assembly" if the common object of the persons composing that assembly is any of the five objects mentioned therein. On the basis of the allegations made the common object of the unlawful assembly was either to overawe by criminal force or show of criminal force any public servant in the exercise of the lawful power of such public servant or to resist the execution of any law or of any legal process. I say so because the accused persons could be said to constitute unlawful assembly if only they were resisting the execution of a lawful order promulgated by a public servant concerned under Sec.144 of the code. Be that as it may no argument can be advanced on behalf of the State that the petitioner was liable as member of the unlawful assembly as the common object of the unlawful assembly was one other than violating the prohibitory orders under Sec.144 of the Code which was punishable as an offence under Sec.188 IPC. Thus even if the allegations made in the written report are taken on their face value and in their entirety no offence under Sec.143 IPC was disclosed and cognizance of such an offence was incompetent and the criminal prosecution of the petitioner for such an offence was an abuse of the process of the Court. In short if the petitioner could not be prosecuted for an offence under Sec.188 IPC in the absence of a complaint of the public servant, he could not be prosecuted for an offence under Sec.143 IPC for being member of an unlawful assembly the common object of which was to commit an offence under Sec.188 I. P. C. 7. Thus for the foregoing reasons the impugned order taking cognizance under Sections 143 and 188 I. P. C. and the criminal prosecution of the petitioner for the said offences are held to be an abuse of the process of the court and their quashing is necessary to secure the ends of justice. I order accordingly. At this stage Sri. Yadav prayed that criminal prosecution of the petitioner alone may be quashed. I order accordingly. At this stage Sri. Yadav prayed that criminal prosecution of the petitioner alone may be quashed. At first I was inclined to concede to his request but having given my most anxious consideration to the facts of the case I am of the view that this court would be failing in its duty in invoking its inherent powers if the order of cognizance, as also the criminal prosecution of all other co-accused similarly situated who were arrested along with the petitioner and whose names were mentioned in the list enclosed with the written report are not quashed. Thus the application is allowed, the order of cognizance as also the criminal prosecution of the petitioner and all other similarly situated persons are quashed. Application Allowed