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2005 DIGILAW 613 (GAU)

Viyiho Sema v. State of Nagaland

2005-08-24

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. I have heard Mr. LA. Talukdar, learned Counsel for the petitioners, and Mr. L.S. Jamir, learned Government Advocate, Nagaland, appearing on behalf of the State respondents. None has appeared on behalf of the private respondents. 2. By this common judgment and order, I propose to dispose of the two writ petitions, namely, WP(C) No. 126(K)05 and WP(C) No. 127(K)05, for, on the request of the learned Counsel for the parties, both the writ petitions have been heard together inasmuch as the same involve identical facts, raise common questions of law and the decision in any of the two writ petitions may have a bearing on the out come of the other writ petition. 3. The material facts and various stages, which have given rise to this writ petition, may be set out, in brief, as follows: (i) The petitioner No. 1 in WP(C) No. 126(K)/05, namely, Sri Viyiho Sema, filed a writ petition, which give rise to WP(C) No. 10347/03, against the respondents seeking, inter alia, issuance of appropriate writ(s) setting aside and quashing the order, dated 2.12.2003 (Annexure H to the WP(C) No. 10347/03) and commanding the respondents to rescind, cancel and/or forbear from giving effect to the order, dated 2.12.2003, aforementioned, whereby a direction had been given to the petitioners to stop cultivation and construction on the land of the Church and Pastor residence and also to shift from the area aforementioned immediately on the ground that the Government had constructed perimeter wall to house the zoo and the petitioners activities were causing obstruction to the work of the department concerned. (ii) In view of the fact that an order had been passed in WP(C) No. 8084/02, wherein the land involved was the same and a direction to the parties concerned to maintain status quo with regard to the possession of the land had been passed therein, an order was passed, on 19.12.2003, in WP(C) No. 10347/03, aforementioned, to the effect that the possession of the petitioner No. 1, namely, Sri Viyiho Sema, shall not be disturbed. On the basis of a miscellaneous application made by the respondents to get the said direction modified and/or vacated. Misc. Case No. 209(K)/2004 came to be registered and an order was passed therein, on 19.1.2005, allowing the State respondents to carry on with the proposed work without disturbing the writ petitioners' possession over the land. On the basis of a miscellaneous application made by the respondents to get the said direction modified and/or vacated. Misc. Case No. 209(K)/2004 came to be registered and an order was passed therein, on 19.1.2005, allowing the State respondents to carry on with the proposed work without disturbing the writ petitioners' possession over the land. Thereafter, another writ petition, which gave rise to WP(C) No. 457/05, was instituted by two of the present writ petitioners, namely, Shri Viyiho Sema and Sri Akalu Achumi, whereby the writ petitioners sought to get set aside and quashed an order, dated Nil, which was passed by the Deputy Commissioner, Dimapur, stating to the effect that the Department of Forests, Nagaland, may undertake developmental work on the land which is not in possession of the writ petitioners in WP(C) No. 10347/03, (i.e., WP(C) No. 08(K)/02). (iii) In course of time, on 23.2.2005, learned District Magistrate, Dimapur, passed an order holding to the effect, inter alia, that some of the present petitioners had committed an offence punishable under Section 188 IPC by having violated the orders of the High Court directing the parties to maintain status quo in respect of the land, in question, and sentenced them to suffer imprisonment for 10 days with fine of Rs. 200 each. Aggrieved by this order, the petitioners, who had been so convicted and sentenced, have approached this Court with the help of a writ petition, which has given rise to WP(C) No. 127(K) of 2005 aforementioned. Thereafter, by yet another order passed, on 25.2.2005, the learned District Magistrate, Dimapur, has similarly convicted and sentenced the remaining petitioners for offence punishable under Section 188 IPC. The order, dated 25.2.2005, stands impugned in WP(C) No. 126(K) of 2005, aforementioned seeking similar reliefs as have been sought for by the petitioners in WP(C) No. 127(K) 2005 aforementioned. 4. At the time of hearing of the present two writ petitions, it has been pointed out by Mr. Laskar, learned Counsel for the petitioners in WP(C) No. 126(K) of 2005, that in addition to being convicted and sentenced to imprisonment and fine, the petitioner Nos. 1 and 2, in WP(C) No. 126 (K) of 2005, were also made to execute a bond of Rs. 2 lakh each with an undertaking not enter into the land and/or cultivate the same. 1 and 2, in WP(C) No. 126 (K) of 2005, were also made to execute a bond of Rs. 2 lakh each with an undertaking not enter into the land and/or cultivate the same. In this regard, however, there is no mention in the impugned order, dated 23.2.2005, aforementioned, and/or in the order, dated 25.2.2006, aforementioned. 5. At the time of hearing, it has been agitated, on behalf of the respondents, that a number of complaints had been received by the respondents/authorities concerned and also by the police that the writ petitioners had been violating the directions given by the High Court to the parties to maintain status quo. 6. While dealing with the present two writ petitions, it is of paramount importance to note that though it has not been specifically mentioned in the impugned order, dated 23.2.2005, that the writ petitioners had been convicted for offences allegedly committed by them under Section 188 IPC, the fact remains that the impugned orders mention that the petitioners had committed the offence under Section 188 IPC and were, therefore, sentenced to imprisonment and payment of fine as indicated hereinabove. 7. What is, however, now imperative to not is that Section 195 of the Code of Criminal Procedure bars the Court from taking cognizance of an offence punishable under Section 188 without a complaint, in writing, from the Court, whose order has been violated, or of some either Court to which the Court, whose order is violated, is subordinate. 8. In view of the fact that in the present case, the accusations made against the petitioners are that they have violated the directions/orders of the High Court, there ought to have been a complaint made to the District Magistrate, Dimapur, either by the High Court or Courts subordinate thereto. Admittedly, there was no such complaint made. In the absence of any such complaint, the learned District Magistrate had no jurisdiction to take cognizance of offence under Section 188 IPC against the present petitioners. The impugned conviction and sentence passed against the petitioners, therefore, suffered from inherent lack of jurisdiction. Admittedly, there was no such complaint made. In the absence of any such complaint, the learned District Magistrate had no jurisdiction to take cognizance of offence under Section 188 IPC against the present petitioners. The impugned conviction and sentence passed against the petitioners, therefore, suffered from inherent lack of jurisdiction. This apart, the impugned orders are, to say the least, shocking inasmuch as these orders reveal complete lack of understanding of law by the learned District Magistrate, for, the learned District Magistrate, on the basis of the submissions made by the prosecuting inspector that the petitioners had violated the orders of the High Court, held the petitioners guilty of an offence punishable under Section 188 IPC and sentenced them to suffer imprisonment and pay fine. No opportunity of any kind was given to the petitioners to have their say in the matter. Such an approach adopted by the learned District Magistrate is wholly contrary to the rule of law and cannot be allowed to stand good on record. 9. Considering, therefore, the matter in its entirety, the impugned orders, dated 23.2.2005 and 25.2.2005, aforementioned are hereby set aside and quashed. Bonds, if any, executed by the petitioner Nos. 1 and 2 of WP(C) No. 126(K) of 2005 shall accordingly stand set aside and quashed. 10. With the above observations and directions, both the writ petitions shall stand disposed of. 11. No order as to costs.