Dr. Sunil Kumar, S/o Sri Bhagwat Prasad vs The State of Bihar

Heard learned counsels for the parties.

The petitioner has challenged, in this writ application, the

order dated 04.03.2016 passed by the learned Chief Judicial Magistrate,

Nalanda at Biharsharif in Bihar P.S. Case No. 488 of 2015

corresponding to G.R. No. 4107 of 2015 whereby cognizance has been

taken against the petitioner for offence under Section 188 of the Indian

Penal Code.

According to First Information Report, lodged on the basis

of written report of the Circle Officer, the petitioner was a candidate of

the referred political party for Legislative Assembly Election. On

13.10.2015, the petitioner had convened a meeting in the campus of

Shram Kalyan Maidan and in his application, for permission the

petitioner had disclosed that about five thousand people are likely to

assemble. However, in fact, forty thousand people assembled thereat

which caused problem of law and order.

Learned counsel for the petitioner submits that a bare

perusal of the provisions, Section 188 of the Indian Penal Code would

reveal that ingredient of the offence alleged is not attracted in the facts

and circumstances of this case nor the informant is a competent person

to lodge FIR of the matter. Therefore, the cognizance order is barred

under Section 195(1)(a)(i) of the Code of Criminal Procedure.

Section 188 of the Indian Penal Code reads as follows:-

"Section 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."

The FIR does not disclose that there was any order

promulgated by the informant directing abstinence as referred in the

provisins above nor there is material to substantiate that disobedience

of such direction caused or tend to cause obstruction, annoyance or

injury or risk of obstruction, annoyance or injury to any person

lawfully employed. Further, there is no material disclosed in the FIR

that permission to assemblage of only five thousand people was

granted. If more people assembled, the petitioner was not responsible

for that. Moreover, vague statement is there in the FIR that forty

thousand people caused problem of law and order. There is no specific

mention that what problem was caused.

Now coming to the requirement of Section 195 of the

Code of Criminal Procedure which reads as follows:-

"195(1) No Court shall take cognizance of any offence punishable under Sections 172 to 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."

In the present case, the criminal prosecution has not been

lodged by the public servant concerned who promulgated the

prohibitory order nor it has come on the record that the petitioner is

subordinate to that public servant. Therefore, initiation of police case is

itself bad in view of the requirement of Section 195 of the Cr.P.C.

The State-respondent in the counter affidavit have detailed

the act and omission committed by the petitioner leading to the FIR

and has stated that after investigation, the case has been found true. The

counter affidavit further reveals that news had flashed that Ajay

Devgan, a film actor was to participate in the meeting dated

13.10.2015. In the circumstances, a large number of people had

assembled.

Thus, it was the duty of the administration to foresee the

chances of people coming in large number.

In the facts and circumstances of this case, no criminal

liability can be raised against the petitioner. For the reasons aforesaid,

in my view, the impugned order is not sustainable in law. Accordingly,

the impugned order as well as the entire criminal prosecution against

the petitioner is hereby quashed.

This writ application is allowed.