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2006 DIGILAW 1117 (PAT)

Bijo Yadav v. State Of Bihar

2006-11-24

GHANSHYAM PRASAD

body2006
Judgment Ghanshyam Prasad, J. 1. Heard. 2. This petition u/s. 482 Cr.P.C. has been filed to quash the entire criminal proceeding of Complaint Case No. 4602 pending in the court of S.D.J.M., Khagaria as well as the order of cognizance dated 18.10.2005 passed by C.J.M., Khagaria. 3. The short facts involved in this case is that the proceeding under Section 144 Cr.P.C. was drawn by the S.D.M., Khagaria between the petitioners as 2nd party and Sohan Kumar Sinha as first party over certain piece of land alongwith mango trees. During continuance of the prohibitory order the first party on 14.6.2005 filed a petition before the court of S.D.M. that the members of the second party plucked away mango fruits and prayed for their prosecution under Sec. 188 Indian Penal Code, 1860 The learned S.D.M. after due enquiry, vide its order dated 1.9.2005, ordered for filing of the complaint against the members of the second party/petitioners for their prosecution u/s. 188 Indian Penal Code, 1860 4. In compliance of the order of S.D.M. on 17.10.2005, Shri Anil Kumar Sinha, Executive Magistrate, Khagaria filed a complaint petition before the court of C.J.M., Khagaria against the petitioners. The learned C.J.M. on the basis of the said complaint vide order dated 18.10.2005, took cognizance u/s. 188 Indian Penal Code, 1860 against the petitioners. 5. The petitioners have challenged their prosecution mainly on the ground of non-compliance of sec. 195 Cr.P.C. It is submitted that Shri A.K. Sinha, Executive Magistrate, who is the complainant, was not the public servant concerned whose order alleged to have been violated by the petitioners nor the S.D.M. whose order has been violated is administratively subordinate to him. Therefore, Mr. Anil Kumar Sinha was not the competent authority to file complaint and hence the cognizance taken on such complaint is bad and illegal in view of the bar contained in sec. 195(1) Cr.P.C. 6. I find force in the submission of the learned Counsel for the petitioners. The admitted fact is that the complainant A.K. Sinha was not the public servant concerned whose order was alleged to have been violated or dis-obeyed. The prohibitory order u/s. 144 Cr.P.C. was promulgated by S.D.M., Khagaria and therefore. 195(1) Cr.P.C. 6. I find force in the submission of the learned Counsel for the petitioners. The admitted fact is that the complainant A.K. Sinha was not the public servant concerned whose order was alleged to have been violated or dis-obeyed. The prohibitory order u/s. 144 Cr.P.C. was promulgated by S.D.M., Khagaria and therefore. he alone or some other public servant to whom he was subordinate, was competent to file case for prosecution u/s. 188 Indian Penal Code, 1860 Section 195(1) Cr.P.C. bars taking cognizance on the basis of such complaint. 7. sec. 195(1) runs as follows: No Court shall take cognizance-- (a) (i) of any offence punishable under Secs. 172 to 188 (both inclusive)of the Indian Penal Code(45 to 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) 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. 8. In the instant case, Mr. A.K. Sinha was not the competent public servant to file complaint for prosecution u/s. 188 Indian Penal Code, 1860 and, therefore, cognizance taken by the learned C.J.M. is apparently hit by the provision of Sec. 195(1) Cr.P.C. and hence bad in law. 9. For the reasons stated above, this application is allowed and the proceeding arising out of Complaint Case No. 46C2 of 2005 alongwith the order of cognizance is hereby quashed.