Raghubans Singh and Others vs The State of Bihar

C.P. Sinha, J

This application in revision is on behalf of six accused persons who along with one another accused, named, Kesho Singh, are being prosecuted in the court below u/s 188 of the Indian Penal Code on the written complaint dated the 10th March, 1970, filed by the Magistrate (Annexure 1 to the revision). In the complaint as filed, it is mentioned that it appeared that they had harvested the standing paddy crops of the disputed land after service of the restraint order u/s 144 of the Code of Criminal Procedure in utter disregard of the Court''s order wilfully, and, therefore, they have made themselves liable for prosecution u/s 188 of the Indian Penal Code. On the basis of this complaint, the learned Sub-divisional Magistrate is said to have taken cognizance of the offence and transferred the case to another Magistrate for disposal where it is pending. In the dispute between the two sides, regarding some land, the learned Magistrate had drawn up a proceeding u/s 144 of the Code of Criminal Procedure against both parties. This was on the 6th November, 1969. By that order, both sides were restrained from going upon the land. The proceeding is alleged to have been served on the parties on the 8th November, 1969.

In his complaint to the Magistrate, the first party Rameshwar Dutta Mishra informed that during the pendency of that restraint order against these petitioners who are second party in the proceeding they had gone to the land and wilfully harvested the standing crops on the 16th November, 1969, in clear disobedience of the Court''s order not to go upon the land during that period. After receiving this complaint the Magistrate referred it to the local Sub-Registrar for enquiry and report. Since that Officer was not able to make the enquiry, the Magistrate recalled it from him and entrusted it to the Inspector of Police. He enquired into the matter and submitted his report. On perusal of that report and the evidence of the witnesses as given during that enquiry, the Magistrate in his order dated the 25th February, 1970 came to the conclusion that there was truth in the complaint regarding their having harvested the crops during the subsistence of the restraint order against them, Accordingly, he ordered preparation of a draft complaint for their prosecution u/s 188 of the Penal Code, which, as observed above, was filed on the 10th March, 1972. Thereafter the petitioners have come up to this Court in revision for quashing that order as also the prosecution, so launched against them.

Mr. Parmeshwar Prasad Sinha, appearing for the petitioners, has urged that the essential ingredient, namely, that the disobedience caused or tended to cause obstruction, annoyance or inquiry, or risk of obstruction, annoyance or injury to any person, as required u/s 188 of the Indian Penal Code, was conspicuously absent in the Magistrate''s order while filing this complaint. This omission, according to him, in the prosecution order, is fatal, and, on that basis the consequential prosecution of his clients is illegal and invalid. In support of his view he has referred to the wordings of Section 188 of the Penal Code itself and also relied upon a decision of this Court in (1) Balbhadra Jha and others V. State (1964 B.L.J.R. 799).

As the section stands, it would require four ingredients bring the offence 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.

Mr. Lala Deoki Nandan Prasad Sinha, learned counsel on behalf of the other side, relying upon the explanation to Section 188 of the Penal Code has urged that even though in the order of the Magistrate or in the complaint petition drawn in pursuance of the aforesaid order there is no mention of any fact to satisfy the requirement of the fourth ingredient as stated above, its existence must be presumed because of the harvesting of standing crops on the land during the pendency of the Magistrate''s restraint order asking the parties not to the upon it. Against this, the petitioners'' contention is that such an inference is absurd and can in no case be drawn simply to sustain this prosecution which is patently illegal in the absence of anything on the record to comply with the fourth requirement, because the point as to whom those standing crops actually belonged was still in dispute and the first party could not be justified to call it his property so that its harvesting by the other side could give rise to any such inference. There seems some substance in this contention of the petitioners. It would not I think be correct to hold that such an inference should be drawn in favour of the first party under the provisions of Section 188 of the Penal Code merely on that alleged harvesting. For similar defect in the matter, the learned Judge, Kamla Sahai, J. in the above (1) Balbhadra Jha''s case relying upon earlier decisions of this Court in (2) Parmeshwar Rai V. The King Emperor (3 P.L.T. 268) and (3) Umanath Prasad and Others Vs. Dhirendra Kumar Singh, quashed the complaint filed to prosecute the petitioners u/s 188 of the Indian Penal Code. He held that in terms of Section 188, it had to be shown that the disobedience caused or tended to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or that the disobedience caused or tended to cause danger to human life, health or safety, or caused or tended to cause a riot or affray.

The case of (4) Khoshi Mahton and Others Vs. The State, relied upon by the opposite party cannot, to my mind, come to their rescue to save this prosecution on account of its aforesaid inherent defect, because in that case, as it would be seen, the Magistrate had in course of trial of the case held such an inference against the accused in the circumstances obtaining in that case. In the instant case, we are at the initial stage and as I am informed, the trial is yet to commence. In such circumstances, where this patent defect in the Magistrate''s order has been brought to the notice of this Court, I do not think it would be proper to allow it to continue in the hope that the trial court would be making such an inference in favour of the prosecution even though there was nothing in the order concerned to show the satisfaction of the fourth ingredient of the offence alleged against them. The work of such assumption, to my mind, is risky, because if the trial ultimately is found to fail on account of this technical defect, that would necessarily mean unnecessary harassment to the party and also waste of Court''s time. So, when the petitioners have attacked the orders on this account at this early stage of the case, it is expedient and proper that it should not be allowed to continue and should be rectified. For the foregoing reasons, the complaint so filed against the petitioners and their prosecution in pursuance thereof are set aside, and the matter is remitted to the court below to consider whether all the ingredients of Section 188 of the Indian Penal Code are found satisfied in the case or not, and if on the materials before him he comes to the conclusion that the ingredients as required by law are present, then it will be open to him to file a fresh complaint against these petitioners as permissible in law.