Kapileswar Singh @ Kapileshwar Pd. Singh and Others vs The State of Bihar and Others

S.N. Jha, J.—The Petitioners have challenged the order dated 19.7.1996 taking cognizance against Petitioner No. 1, Kapileshwar Singh @ Kapileshwar Pd. Singh, for having committed offence u/s 188 I.P.C. In that view, addition of Petitioner Nos. 2 to 4 as co-Petitioners in the present application appears to be misconceived. Counsel in this connection referred to order dated 20.8.1996 by which summons were ordered to be issued against the accused persons (Abhiyuktgan) but the use of the term ''Abhiyuktgan'' appears to be a mistake. This is evident from the fact that only Petitioner No. 1 was party to the original proceeding u/s 144 Code of Criminal Procedure.

The impugned order has been challenged firstly on the ground that the complaint was made by the successor Subdivisional Magistrate within the meaning of Section 195(1)(a) and not by the Magistrate, who had promulgated the order from Section 144 Code of Criminal Procedure. According to him, the complaint within the meaning of Section 195(1)(a) can be made only by the particular Magistrate who promulgates such order or by superior authority. In support of contention reliance was placed on Mata Bhikh and Others Vs. State, .

The expression ''the public servant concerned'' occurring in Section 195(1)(a) of the Code came up for interpretation in Daulat Ram Vs. State of Punjab, . In that case Patwari had made certain complaint to the Tehsildar, which was referred to the police for enquiry by him. Later, in course of time, the police found that accusation was false and submitted chargesheet against Patwari u/s 182 I.P.C. The Supreme Court held that taking or cognizance on the basis of chargesheet was violative of the provisions of Section 195(1)(a). It was held that only the Tehsildar, who had directed the enquiry into the matter could make the complaint. Relying upon the said decision the Andhra Pradesh High Court in The Public Prosecutor Vs. Mohamed Ali, interpreted the expression ''public servant concerned'' to mean ''whoever happens to occupy that post''. A Division Bench of this Court in Government Advocate, Bihar v. Kumar Singh AIR 1938 Patna 83 has held in no uncertain terms that the complaint within the meaning of Section 195(1)(a) can be made by the successor-in-office. In coming to the said conclusion their Lordships referred to Section 18 of the General Clauses Act, 1877 as well Section 559(1) Code of Criminal Procedure 1898 corresponding to Section 35(1) of Code of Criminal Procedure 1973. Reference may also be made to decision of the Supreme Court in State of U.P. Vs. Mata Bhikh and Others, . In the above view of the matter, reliance on 1980 Cr.L.J. 575 is wholly misconceived. The submission of the counsel in this regard is accordingly rejected.

Counsel submitted that the report on the basis of which cognizance has been taken does not disclose the ingredients of Section 188 I.P.C. I have examined the papers and I do not find any substance in this contention either.

In the above premises, I do not find any merit in this application, which is, accordingly, dismissed.