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2006 DIGILAW 17 (PAT)

Bhuneshwari Prasad Yadav v. State Of Bihar

2006-01-04

REKHA KUMARI

body2006
Judgment Rekha Kumari, J. 1. This is an application under Section 482 of the Code of Criminal Procedure, to quash the order dated 9.9.2002 passed by the Chief Judicial Magistrate, Madhepura in Complaint Case No. 1(8) of 2002 under which he has taken cognizance under Section 188 of the Indian Penal Code and has directed to issue summons against the petitioners to stand trial and also to quash the subsequent proceedings of the case. 2. Heard. Learned counsel for the petitioners submitted that in this case the order of learned S.D.M. is said to have been violated on 29.11.2000 and on 21.5.2002, the com plaint was filed on 9.9.2002 and cognizance was taken, when the maximum sentence prescribed under Section 188, IPC is six months. Therefore, the cognizance was barred under Section 468, Cr PC. He fur ther submitted that though the S.D.M. has filed a petition under Section 473, Cr PC for extension of period of limitation, the learned C.J.M. without any speaking order in a mechanical way condoned the delay and took cognizance which is bad in law. 3. He then submitted that for taking cognizance under Section 188, IPC the public servant concerned must mention in his complaint that the alleged disobedience caused or tended to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed, or such disobedience caused or tended to cause danger to human life, health or safety or caused or tended to cause not or affray; but in this case it is not mentioned that the S.D.M. was satisfied that the disobedience led to any above conse qunces. So, the order of cognizance is bad and is liable to be quashed. In support of his submissions he has relied on the decision of our own High Court in the case of Saryug Mahto and others V/s. State of Bihar and another, 1992 (1) PLJR 128. 4. As regards first submission of the learned counsel, it appears from the complaint petition that the petitioners allegedly violated the order under Section 144, Cr PC passed by the complainant S.D.M. Mad-hepura on 26.11.2002. The complaint should, hence, have been filed within one year from the date. But it appears that the complaint was filed on 21.5.2002, i.e. after one and half years of the occurrence and the cognizance was taken on 9.9.2002. The complaint should, hence, have been filed within one year from the date. But it appears that the complaint was filed on 21.5.2002, i.e. after one and half years of the occurrence and the cognizance was taken on 9.9.2002. The record shows that the complainant had filed a petition for condonation of delay by stating that as he was busy in administrative work and election of Nagar Panchayat, he could not file the complaint earlier. The impugned order shows that with regard to condonation of delay, the learned C.J.M. has simply mentioned "prayer for condonation is allowed". He has not mentioned as to whether he was satisfied with the explanation given by the complainant for the delay or condonation was in the interest of justice. 5. In the case of State of Himachal Pradesh V/s. Tara Dutta and another, (2000) 1 SCC 230 : 2000 (1) East Cr C 156 (SC), the Apex Court has held "the discretion conferred on the Court by Section 473, Cr PC to take cognizance after the period of limitation under the conditions stated therein has to be exercised judiciously and on well recognised principles. This being a discretion conferred on the Courts taking cognizance, whenever Court exercises this discretion, the same must be by speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and the condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a Supreme Court to come to the conclusion that the Court had taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance." 6. In view of the above decision, it is also not permissible to this Court to hold that the cognizance was taken after condoning the delay. This being so, there is substance in the submissions of the learned counsel that the cognizance in this case was time barred. 7. As regards the second contention of the learned counsel. Section 188, IPC reads as follows : "188. Disobedience to order duly promulgated by public servant. This being so, there is substance in the submissions of the learned counsel that the cognizance in this case was time barred. 7. As regards the second contention of the learned counsel. Section 188, IPC reads as follows : "188. Disobedience to order duly promulgated by public servant. Whoever, knowing that by an order promulgated by a 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. Explanation.It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm." 8. In the case of Saryug Mahto (supra) decided by a Bench of this Court the complaint petition did not mention that disobedience of the order concerned had caused any of the consequences mentioned in the 2nd or 3rd paragraphs of the section. The Court, hence, held that mere disobedience of an order by a public servant lawfully empowered will not be an offence unless such disobedience leads to enumerated consequences in the 2nd or 3rd limb of the section. Accordingly, the Court set aside the order of cognizance based on that complaint petition. 9. In this case also the complaint petition does not mention that the S.D.M. found that disobedience of the order has caused any of the consequences enumerated in 2nd and 3rd paragraphs of the section. Therefore, in view of the above decision also the order of cognizance is bad in law. 10. 9. In this case also the complaint petition does not mention that the S.D.M. found that disobedience of the order has caused any of the consequences enumerated in 2nd and 3rd paragraphs of the section. Therefore, in view of the above decision also the order of cognizance is bad in law. 10. In the result, the application is allowed, the impugned order of cognizance is set aside and the subsequent proceeding of the case is quashed.