Bijoy Kumar Mandal and Others vs State of Bihar

Madan Mohan Prasad, J.—The petitioners have been charged for an offence u/s 188, IPC for violation of the order promulgated by the S.D.O. u/s 144, Cr. PC. It is said that the petitioners have violated this order and a report to this effect is submitted by the Chaukidar for which cognizance has been taken against the petitioners. This case was transferred to the file of Mr. M. Mishra Judicial Magistrate and he proceeded with the trial of the case. A petition was filed on behalf of the petitioners for discharge of the accused on the ground that cognizance taken in this case is illegal. This petition was, however rejected by the Judicial Magistrate on 27-11-1976. Hence this revision is directed against that order and it has been prayed that the order is fit to be quashed.

Mr. S.K. Chattopadhyaya, the learned Counsel appearing on behalf of the petitioner has contended that Section 195(1) of the Cr. PC is a bar in taking cognizance of the offence not being on the report of the public officer. It has been contended that the Chaukidar is not a public officer within the definition of the Indian Penal Code and that the report ought to have been submitted by the authorities concerned whose order has been disobeyed and in support of this the learned Counsel has cited Tej Singh and Others Vs. The State, and also Daulat Ram Vs. State of Punjab, .

The Learned Counsel appearing on behalf of the State M.S. Chabra has contended that the offence u/s 188 IPC is now a cognizable offence and so cognizance can be taken on the report of the Chaukidar as well but as Section 195(1) stands this cognizance can be taken by the Court only on the report of the public officer or on the report of the officer whose order has been disobeyed. Now the offence has been made cognizable by the police but the same has not been made cognizable by the Court unless the report is submitted by the officer concerned whose order has been disobeyed. A plain reading of Section 195(1) Cr. PC also leads me to the same conclusion. In this view of the matter I find that the cogaizance taken in this case is ab initio void and as such the order passed by the learned Magistrate is not legal.

In the result, this revision petition is allowed and the order passed by the learned Magistrate on 27-11-1976, in G. R. case No. 927 of 1974 is hereby set aside and the proceeding is quashed.