Data Ram and Another vs State

M.P. Saxena, J .

These are two criminal revisions viz. 1478 and 1479 of 1976 against the judgment and order dated 5-10-1976 passed by the learned Sessions Judge, Rampur. The former has been filed by Data Ram and Bannan Khan and the latter has been filed by Chet Ram, Bhim Sen, Tula Ram and Kishan Lal. The learned Sessions Judge had dismissed thier appeals and confirmed their convictions u/s 188 I.P.C. and the sentence of two weeks'' simple imprisonment. The trial Court''s order that the accused persons shall be evicted from the land in dispute and its possession shall be delivered to Jagan Lal, complainant, was also confirmed.

Briefly stated, the facts giving rise to this revision application are that plot No. 17/1, 17/2, 17/3 and 17/4 (total area 17 bighas 13 biswansis) and plot No. 20 (area 1 bigha 14 biswas and 11 biswansis) situate in village Bansi Sarai, Tahsil Sadar, District Rampur and were in possession of one Jagan Lal. Some dispute arose between him and the revisionists and one Faqira over possession of these plots. Jagan Lal instituted proceedings u/s 145 Code of Criminal Procedure in the Court of the City Magistrate, Rampur, against the revisionists and Faqira. The police reported that there was reasonable apprehension of breach of the peace on account of dispute over the said plots. Therefore, the City Magistrate, Rampur, passed a preliminary order attaching the plots and the crops standing thereon. An issue as to who was in possession of the disputed plots was referred to the Munsif for decision. The learned Munsif gave his finding on 16-3-1974 to the effect that Jagan Lal was in possession of these plots on the date of the preliminary order and within two months thereof. On receipt of the record the City Magistrate passed a final order u/s 145 Code of Criminal Procedure on 2-4-1974 in the light of the finding given by the learned Munsif. He further ordered that possession of the plots will be delivered to Jagan Lal, who will remain in possession of it till evicted in due course of law. The revisionists and Faqira were restrained from interfering with his possession. A copy of this order was sent to the Station Officer, P.S. Kotwali, Rampur for delivery of possession of the plots and the crops to Jagan Lal. On 3-4- 1974 the A.S.I. Kotwali delivered possession of the plots etc. to Jagan Lal. On 12-6-1974 Jagan Lal moved an application u/s 476 Code of Criminal Procedure before the City Magistrate, Rampur. alleging that Chet Ram and others had disobeyed his orders by dis-possessing him from the said plots and a complaint u/s 188 I.P.C. be filed against them. On 20-6-1974 Faqira died and the matter proceeded against the present revisionists. The application u/s 476 Code of Criminal Procedure was rejected on 24-5-1975. Jagan Lal filed an appeal before the learned Sessions Judge, who allowed it on 24-7-1975 and sent the case back to the City Magistrate with a direction that he will file a complaint against the revisionists u/s 188 IPC. Accordingly on 20-8-1975 the City Magistrate filed" a complaint in the Court of the Chief Judicial Magistrate, Rampur.

The revisionists denied the said charge and gave out that a compromise had taken place between the parties under which Jagan Lal had surrendered these plots in favour of the original tenant, Shaukat Ali P.W.I, and the latter in his turn had given them on patta to Bannan Khan (revisionist). Therefore, there was no disobedience of the order of the Court and consequently no offence u/s 188 was made out.

The IInd Addl. Munsif-Magistrate, Rampur believed the complainant''s case and convicted and sentenced the revisionists. He also ordered that they will be evicted from the disputed land and its possession will be delivered to Jagan Lal. Two appeals were filed against it by the revisionists but they were dismissed by the learned Sessions Judge on 5-10-1976. The present revision applications are directed against that order.

The contention of the learned Counsel for the revisionists is that the trial Court was not competent to take cognizance of the complaint as it was in respect of an offence given in Section 195(1)(a) of the Code and when the City Magistrate had refused to do so it could be done by the District Magistrate to whom the City Magistrate was administratively subordinate. It could not be done under orders of the Sessions Judge.

The learned Counsel for the opposite party has repelled this contention on the ground that no revision having been filed against the order of the learned Sessions Judge, it became final and it cannot be challenged in the present proceedings.

I have given my anxious consideration to the whole matter and I find sufficient substance in the contention of the learned Counsel for the revisionists. Section 195(1)(a)(i) of the Code of Criminal Procedure 1973, lays down:

No Court shall take cognizance of any offence punishable under Sections 172 - 188 (both inclusive) of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

It makes it clear that for an offence u/s 188 Penal Code any complaint is to be filed by the public servant or by some other public servant to whom he is administratively subordinate.

In the present case Jagan Lal had moved an application u/s 476 of the old Code requesting the City Magistrate to file a complaint u/s 188 IPC but the learned Magistrate had refused to do so. Against this order an appeal was filed before the Sessions Judge and he directed the City Magistrate to file a complaint. The questions which arise for consideration are whether the application u/s 476 Code of Criminal Procedure for making a complaint was maintainable and secondly whether the order refusing to file a complaint u/s 195(1)(a) of the Code was appealable. Both the questions have been set at rest in number of cases. In Bhoop Ram Vs. Emperor through Parthi Raj and Others, , it was held that in respect of an offence falling u/s 195(1)(a) of the Code of Criminal Procedure the public servant is not competent to make an enquiry or issue notice u/s 476.

In Brijendra Nath Vs. Emperor, , it was held that the right of appeal given by Section 476(b), Code of Criminal Procedure, 1898, (Section 341 of the new Code) is restricted to offences referred to in Section 195 Sub-section (1) Clause (b) or (c) and no right of appeal is given by Section 476(b) in respect of any offence referred to in Section 195 Sub-section (1) Clause (a).

In the case of Shri Virindar Kumar Satyawadi Vs. The State of Punjab, , it was observed that:

If the complaint relates to offence mentioned in Section 195(1)(b) and 195(1)(c) an appeal would be competent, but not if it relates to offences mentioned in Section 195(1)(a). Where the order of the Magistrate directs that the Appellant should to prosecuted for offences under Sections 181, 182 and 183 IPC. The order in so far as it relates to offences under Sections 181 and 182 is not appealable as they fall directly u/s 195(1)(a).

In Buttan Modi and Another Vs. Manichandra Singh, , the proceedings were u/s 144 Code of Criminal Procedure and one of the parties filed a petition for prosecution of opposite parties u/s 188 IPC on the ground that he had disobeyed the order of the Court. The sub-Divisional Magistrate refused to file a complaint u/s 195(1)(a) and it was held that an appeal against an order of a public servant refusing to file a complaint under this section was not maintainable.

The aforesaid makes it clear that Section 476 (old Code) was not attracted to cases falling u/s 195(1)(a) and an order filing or refusing to file a complaint for an offence provided in Section 195(1)(a) of the Code is not appealable. The reason for this view is not much far to seek. Such an order is not a judicial act but is an administrative act. Hence no appeal lies. The cases of Baba Dane Shah Suthra v. D.G. Mai AIR 1938 Pes. 9; Ramesh Chandra Poddar v. Hari Mohan Poddar 42 CWN 531 , and V.P. Manuel Puthuppalli Amsom Vs. Kollekkat Parangodan of Putupalli Amsom and Others, , lay down that such an order is not amenable even to revision. In the latter case the Munsif was moved to file a complaint u/s 195 of the Code of Criminal Procedure for an offence given in Section 195(1)(a) of the Code and it was dismissed by him. It was held that Section 195(1)(a) does not contemplate any application by a party requesting the Munsif to file a complaint and that the action of the Munsif u/s 195(1)(a) is only an administrative act and it cannot be questioned on the judicial side by a revision.

Secondly Section 195(1)(a) contemplates a complaint by a public servant or by a person to whom he is administratively subordinate. A City Magistrate or a Sub-Divisional Magistrate is administratively subordinate to the District Magistrate (Section 17 of old and Section 23 of the new Code) and not to the Sessions Judge - Nityanath Jha and Another Vs. The State and Another, . Therefore the complaint could be filed either by the City Magistrate or by the District Magistrate. No appeal against the order refusing to make a complaint lay to the Sessions Judge nor the latter was competent to direct the City Magistrate to file a complaint u/s 195(1)(a). It may be stated here that it was not open even to the District Magistrate to direct a Sub-Divisional Magistrate to file a compla-int-Nitya Nath Jha v. State (supra). This is borne out from a plain reading of Section 195(1)(a) of the Code which says that a complaint is to be filed either by the public servant himself or by some other public servant to whom he is administratively subordinate. Hence the learned Sessions Judge had no jurisdiction to direct the City Magistrate to make a complaint and the complaint made by the latter was wholly beyond the purview of Section 195(1)(a) of the Code and cognizance could not be taken on its basis.

The learned Counsel for the opposite party is inclined to argue that the City Magistrate had power given to him by law to make a complaint in respect of an offence u/s 188 IPC. Therefore, the complaint made by him, though under the directions of the Sessions Judge, should be attributed to that valid power. There is not much force in this contention because the City Magistrate had already refused to make a complaint meaning thereby that he had refused to exercise the power given to him u/s 195(1)(a). Subsequently the complaint was filed by him not in exercise of the power given to him but because he was so directed by the Sessions Judge who had himself no jurisdiction to hear the appeal or to issue such a direction. Therefore, filing of the complaint cannot be attributed to the power given to him. For all these reasons cognizance could not be taken on the complaint filed by the City Magistrate. The order of the Sessions Judge was wholly without jurisdiction and void and as held in the case of Babu Lal v. State 1957 AWR 552 , the matter of jurisdiction can be taken for the first time even in revision. Since no cognizance could be taken on the complaint filed in this case the revision application u/s 188 IPC was illegal and the revisionists'' conviction is liable to be set aside.

Both the revision applications are allowed and the revisionists'' conviction u/s 188 IPC and the entesnce awarded thereunder are set aside. The order passed by the learned trial Court that possession of the disputed plots be delivered to Jagan Lal after evicting the revisionists is also set aside.