Gajendra Ojha @ Gajendra Nath Ojha and Others vs State of Bihar and Another

Chandramauli Kr. Prasad, J.—This application has been filed for quashing the order dated 13.4.2002 passed in Case No. 17(A) of 2002 whereby the learned Judicial Magistrate had directed for lodging of the complaint against the Petitioners for offence u/s 188 of the Indian Penal Code, (hereinafter referred to as ''the IPC''). Further prayer made by the Petitioners is to quash the order dated 9.5.20021 passed in Cr. Appeal No. 9 of 2002 whereby the Sessions Judge had dismissed the appeal filed against the order of the learned Magistrate. Petitioners further pray for quashing the order dated 18.5.2003 (Annexure-3) whereby the Judicial Magistrate, 1st Class, Buxar had taken cognizance of the offence and directed for issuance of processes against the Petitioners for offence u/s 188 of the IPC in Trial No. 1279 of 2002.

When this writ application is taken up, Mr. B.P Pandey appearing on behalf of the Petitioners submits that in view of the decision of this Court in the case of Ajay Kumar Rana and Others Vs. State of Bihar and Others remedy u/s 482 of the Code of Criminal Procedure being available, Petitioners may be permitted to convert this application into an application under the, said provision. I am proceeding to consider this application as an application u/s 482 of the Code of Criminal; Procedure.

Facts giving rise to the present application are that a proceeding u/s 144 of the Criminal Procedure hereinafter referred to as the Code, was initiated by the Sub-Divisional Magistrate. Dumraon in Case No. 17(A) of 2002. In the said proceeding, Petitioners were the second party whereas Respondent No. 2 was the first party. The first party filed application on 16.2.2002 before the learned Magistrate for lodging complaint under Sections 188 of the IPC. The learned Magistrate by order dated 16.2.2002 called for a report from the Officer Incharge of the Police Station and directed the case to be listed on 28.2.2002. The report as directed was received by the Sub-Divisional Magistrate on 21.2.2002 and the case was adjourned from one date to another date. Ultimately, the Sub-Divisional Magistrate took up the matter on 9.4.2002 and directed both the parties to give written argument. Thereafter on 13.4.2002, he passed the impugned order for filing of the complaint against the Petitioners for the offence u/s 188 of the IPC. Petitioners preferred appeal and the learned Sessions Judge, Buxar, by order dated 9.5.2002 passed in Cr. Appeal No. 9 of 2002, dismissed the appeal. As ordered, the Sub-Divisional Magistrate, filed complaint Case No. 9(O) of 2002 before the Chief Judicial Magistrate, Buxar alleging that despite the prohibitory order promulgated u/s 144 of the Code, Petitioners have made construction which is in breach of the order. It has been further stated that during the course of hearing, Petitioners have not placed on record any evidence to controvert the allegation. In the complaint, it has been further alleged that the construction made by the Petitioners after the promulgation of the prohibitory order u/s 144 of the Code, has not only led to breach of the order but Respondent No. 2 had suffered economically and mentally. The Judicial Magistrate, 1st Class, Buxar by order dated 18.5.2002 took cognizance of the offence u/s 188 of the IPC and directed for issuance of processes against the Petitioners and transferred the case to the court of the Judicial Magistrate 1st Class, Buxar for trial where the same was registered as Trial No. 1279 of 2002.

Mr. B.P Pandey, appearing on behalf of the Petitioners submits that no person can be prosecuted for an offence u/s 188 of the IPC except on the complaint in writing of the public servant concerned as provided u/s 195 of the Code. He further points out that before the learned Magistrate directs for filing of the complaint, he is to be satisfied that all the ingredients constituting an offence u/s 188 of the IPC exist and same has to be deciphered from the order of the Magistrate. He has drawn my attention to the order dated 13.4.2002 passed by the learned Magistrate which does not show that all the ingredient for offence u/s 188 of the IPC is satisfied and thus the said order as also the order taking cognizance are fit to be quashed.

Mr. Ashok Kumar Sinha, however, appearing on behalf of Respondent No. 2 very fairly states that for launching prosecution u/s 188 of the IPC the ingredients of Section 188 of the IPC have to exist and that can be ascertained not only from the order of the Magistrate directing for filing of the complaint but also taking into consideration the police report and the application filed by the party for prosecution.

Having appreciated the rival contention I find substance in the submission of Shri Pandey. Section 188 of the IPC provides punishment for disobedience to the order duly promulgated by the public servant. The essential ingredients for offence u/s 188 of the IPC are as follows:

(a) that there must be an order promulgated by a public servant;

(b) that public servant must be lawfully empowered to promulgate such order;

(c) that such order directed the accused to:

(i) abstain from a certain act, or

(ii) to take certain order with certain property in his possession or under his management;

(d) that the accused had knowledge of such order or direction;

(e) that the accused disobeyed such order or direction.

(f) That such disobedience caused or tends to cause:

(i) obstruction, annoyance, or injury or, risk of obstruction, annoyance or injury to any person lawfully employed or;

(ii) danger to human life or safety, or

(iii) a riot or affray.

The learned Magistrate while passing the order for lodging of the complaint had referred to the police report and came to the conclusion that the Petitioners are proceeding with the construction although the order passed u/s 144 of the Code of Criminal Procedure was served on them on 29.1.2002. He has further observed that the police report had clearly indicated that the Petitioners had violated the prohibitory order and had made recommendation for action u/s 188 of the IPC. The learned Magistrate had also taken note of the fact that the Petitioners in support of their case had not produced any paper or filed any written submissions. The learned Magistrate ultimately concluded that from the application of opposite party No. 2 and the police report, it is evident that the Petitioners had breached the prohibitory order and accordingly, directed for filing of the complaint for offence u/s 188 of the IPC.

From the order of the learned Magistrate referred to above, it is evident that before directing for lodging of the complaint, he has not recorded his satisfaction that all the ingredients constituting the offence u/s 188 of the IPC exist. Even if I consider the report submitted by the police, that also does not contain all the ingredients constituting the offence u/s 188 of the IPC. Even if I assume in favour of opposite party No. 2 that the assertion made in the petition filed for taking action u/s 188 of the IPC contains all the ingredients constituting the offence u/s 188 of the IPC, I am of the opinion that the satisfaction has to be recorded by the Magistrate directing for filing of the complaint. Absence of such satisfaction shall render the prosecution of the Petitioners for offence u/s 188 of the IPC. to be illegal.

This Court had the occasion to, consider the essential ingredients of Section 188 of the IPC and absence of any one of such ingredients before an accused-can be proceeded for commission of offence in the case of Raghubans Singh and Others Vs. The State of Bihar, In the said case, in paragraph 5, it has been observed as follows:

As the section stands, it would require four ingredients to bring the of fence under its purview. They are : (1) that there must be an order promulgated by a public servant. (2) that the public servant must be lawfully empowered to promulgate it, (3) that a person having knowledge of such an order or directed by such an order to abstain from a certain act, etc. has disobeyed the direction, and (4) that such disobedience causes or tends to cause obstruction, annoyance or injury to any person lawfully employed, etc. As the order dated the 25th February 1970, under which he has arrived at a conclusion against these Petitioners in respect of this allegation stands, there is nothing to show existence of the fourth ingredient in the act complained against. Further, in the complaint petition filed by him as well in this behalf, there is no mention of it, and, all that has been stated therein is that the Petitioners had, harvested the standing crops over the'' disputed land during the existence of the Magistrate''s restrained order in the; matter and they have thereby disobeyed; the Court''s order wilfully and made themselves liable for prosecution u/s 188 of the Indian Penal Code.

9A. Further in the case of Sarjug Mahto and Others Vs. The State of Bihar and Another, it has been observed as follows:

xxx It is apparent from the definition of the section that disobedience alleged to have been committed by the Petitioners unless causes or tends to cause obstruction, annoyance, or injury, or risks of obstruction, annoyance or injury, to any persons lawfully employed or causes or tends to cause danger to human life, riot or affray, the requirement of the section are not fulfilled.

As stated earlier, neither the order of the Magistrate directing for lodging of the complaint nor the police report con-lain all the ingredients for the offence u/s 188 of the IPC.

In the result, the application is fallowed, order dated, 13.4.2002 passed by the Sub-Divisional Magistrate, Dumraon in Case No. 17(A) of 2002, order dated 9.5.2002 passed by the Sessions Judge, Buxar in Cr. Appeal No. 9 of 2002 and the order dated 18.5.2002 passed by the Chief ludicial Magistrate, Buxar in Case No. 5(0) of 2002 (Trial No. 1279 of 2002) are quashed.