G. Mehrotra, C.J.
1. This is a petition by the petitioners who are four in number, praying that the proceedings started before the Magistrate under Sections 188, 447 and 425, Indian Penal Code on complaint filed by the Magistrate against them be quashed.
2. The facts necessary are that on an application made by one Ganapatrai Dhanuka proceedings under Section 145, Criminal Procedure Code were started1 against the present petitioners. During the proceedings the Magistrate ordered the attachment of the property. There after Ganapatrai Dhanuka made an application before the Magistrated that in spite of the attachment order. The present petitioners have trespassed open the land and thus coated the order of attachment. The prayer was that they should be prosecuted under Sections 188, 447 and 426, Indian Penal Code. On that complaint the Magistrate filed a complaint under Sections 188, 447 and 426, Indian Penal Code against the present petitioners. The case was transferred to another Magistrate who issued processes against the present petitioners to appear and meet the charges under Sections 188, 447 and 426, Indian Penal Code, The petitioners went up in revision to the Sessions Judge against the order issuing process on the ground that the order was illegal. The Sessions Judge refused to refer the matter to this Court. Thereupon the present petition has been filed.
3. Two points mainly have been urged by the counsel for the petitioners. Firstly it is stated that there bing no prohibitory order passed against the present petitioners and served on them, no offence under Section 188, Indian Penal Code is made out. It is stated that Section 188 is not attracted to a case of bare order of attachment passed under Section 145, Criminal Procedure Code but to a prohibitory order directing one of the parties not to do any act face of it under Section 188, no process should have been issued against the present petitioners.
As regards Sections 447 and 427, Indian Penal Code It is contended that the Magistrate was not competent to file any complaint under Section 447 in his capacity as a public servant and that being so, the Magistrate was not competent to proceed against the petitioners under Sections 447 and 426 on the aforesaid complaint.
4. In my opinion there appears to be force in this contention of the petitioners. It has been laid down In two decisions of this Court - (1) Dibakar Talukdar v. The State AIR 1961 Assam 94 and (2) Atar Khan v. The State AIR 1960 Assam 109 - that Section 188, Indian Penal Code would not be attracted to a case where there Is no prohibitory order served on any of the parties to the proceedings under Section 145, Criminal Procedure Code. A more order of attachment does not attract Section 188, Indian Penal Code. Section 188 requires the violation of an order which is duly promulgated. In a ease whore there is no prohibitory order, it cannot be said that a mere order of attachment is an order duly promulgated under Section 188, Indian Penal Code. Thus Section 188 will not apply to a case of the violation of the mere order of attachment.
5. It was then contended by the opposite party In this case that even though Section 188 may not be attracted, still there was no bar to the Magistrate filing a complaint under Sections 447 and 426, Indian Penal Code, and secondly it is urged that the cognizance can be said to have been taken under Section 190(1)(c), Criminal Procedure Code. If the Magistrate was competent to take the cognizance, then the issue of process cannot be quashed on the ground that certain procedure was not followed by the Magistrate. Section 437, Criminal Procedure Code will be attracted In such cases. In my opinion if the complaint is not covered by any of the provisions of Section 195, Criminal Procedure Code, then it cannot be said to be a complaint filed either by a Court or by a public servant in the discharge of his official duty and thus the proviso to Section 200, Criminal Procedure Code will not be attracted. If the Magistrate files a complaint otherwise than whit is contemplated under Section 195, Criminal Procedure Code, then before the processes can be issued, the complainant has to be examined under Section 200, Criminal Procedure Code and In the present case no such proceedings were taken and the Magistrate was never examined.
6. As regards the contention of the other side that it may be treated to be cognizance under Section 190(1)(c), there are two fold answers to this contention. Firstly cognizance in this case was not taken under Section 190(1)(c) by the Magistrate. The cognizance was taken under Section 190(1)(a) inasmuch as he proceeded on the complaint filed by the Magistrate. Secondly there was non. compliance with Section 191, Criminal Procedure Code. It is said that the Magistrate was competent to take action under Section 191, Criminal Procedure Code before the evidence is recorded and at this stage it cannot lye said that tie has not complied with the provisions of Section 191, As I have indicated, absence of any action by the Magistrate under Section 191 also indicates that in fact the Magistrate did not take cognizance under Section 190(1)(c) but under Section 190(1)(a), Criminal Procedure Code and thus in my opinion the issue of processes by the Magistrate asking the petitioners to reply to the charges under Sections 188, 447 and 426, Indian Penal Code was not valid and the order issuing processes is quashed.
7. The revision is, therefore, allowed and the summonses issued to the petitioners are quashed.