Selestin Kachhap vs State of Bihar (now Jharkhand)

Amareshwar Sahay, J.—Heard the learned Counsel for the petitioner. Nobody appears on behalf of O.P. No. 3.

In this application the petitioner has challenged the order dated 28.9.2000, passed by the Chief Judicial Magistrate, Jamshedpur, taking cognizance of the offence u/s 188, IPC.

The facts, in short, are that a proceeding u/s 147, Cr PC was initiated in between the parties, i.e. the petitioner and O.P. No. 3 Nilu Ekka at the instance of O.P. No. 3, who claimed right of passage over the disputed land on the ground that he was using the said land for more than 35 years and, thereby, acquired the right of users as well as the right of easement over. It was alleged by O.P. No. 3 that this petitioner by erecting a wall and fixing an Iron Gate over the disputed land blocked the passage used by the said O.P. No. 3 Nilu Ekka. The proceeding u/s 147, Cr PC was decided in favour of the O.P. No. 3 and against the petitioner by a final order dated 9.12.1999 by the Sub-Divisional Magistrate, Jamshedpur.

The petitioner thereafter, challenged the final order passed by the Sub-Divisional Magistrate, Jamshedpur deciding the proceeding u/s 147, Cr PC against him by filing a Criminal Revision No. 352 of 1999(R) before this Court. This Court by order dated 5.1.2000, stayed the final order passed by the Sub-Divisional Magistrate, Jamshedpur. According to the petitioner, the said interim order of stay was served on the Sub-Divisional Magistrate through lawyer on 6.1.2000.

It appears that a petition was filed by O.P. No. 3 before the Sub-Divisional Magistrate, Jamshedpur praying therein to proceed against the petitioner on the ground that he had committed the offence u/s 188, IPC by violating the final order passed u/s 147, Cr PC. It was stated by O.P. No. 3 that once the obstruction put by the petitioner in the path way, the Executive Magistrate removed the obstructions on 5.1.2000 itself but again the petitioner blocked the path way by erecting a wall by putting an iron gate on 20.5,2000, which was in contravention and violation of the final order passed u/s 147, Cr PC.

The learned Sub-Divisional Magistrate after making enquiry into the matter through the police, by an order dated 25.8.2000 finding the allegation to be correct decided to file complaint against the petitioner u/s 195, Cr PC to the Chief Judicial Magistrate, Jamshedpur for taking cognizance of the offence u/s 188, IPC against the petitioner.

Consequently, the Chief Judicial Magistrate took cognizance of the offence u/s 188, IPC against the petitioner, which has been challenged in this application.

It is submitted that on 6.1.2000, the order of stay, granted by this Court in the criminal revision was already served to the Magistrate, who was deputed to remove the obstructions, i.e. the wall erected by the petitioner. As it appears from the records that whatever obstructions put by the petitioner in the path way had already been removed by the Executive Magistrate on 5.1.2000 itself whereas the order of stay was served on the Magistrate on 6.1.2000, i.e. after the removal of the obstruction.

From the impugned order of the learned Magistrate, taking cognizance of the aforesaid offence, I find that he, after application of his mind and on the basis of the materials on record, has taken cognizance of the offence u/s 188, IPC against the petitioner. This Court in exercise of powers u/s 482, Cr PC cannot sit in appeal or in revision against the order taking cognizance unless some patent illegality is shown to have been committed by the Magistrate. I do not find any illegality in the impugned order. Accordingly, having found no merit, this application is dismissed.