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Mata Bhikh and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1980CriLJ575
AppellantMata Bhikh and ors.
RespondentState
Cases ReferredState v. Tugla
Excerpt:
- - would be clearly punishable under section 188, i......172 to 188 (both inclusive) of the indian penal code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.learned counsel has argued that sri r. c. shukla had initially decided the case under section 145, cr. p. c. on 11th april, 1968. he alone was the public servant concerned competent to file a complaint. if, for some reason or the other, he was not available then, in the alternative the complaint could also have been filed by a public servant to whom sri shukla was subordinate.4. in support of this contention learned counsel for the applicants has cited some decisions, namely air 1966 cal 102 bachuram kar v. the state. this was a case under section 144, cr. p. c. in which justice mookerjee.....
Judgment:
ORDER

P.N. Barshi, J.

1. Case No. 15/72 of 1967 under Section 146, Cr. P. C, between Doodhnath and Ram Lakhan, was decided by the Sub-Divisional Magistrate Gyanpur on merits. Doodhnath represented the interest of Shrimati Ram Piari. The Sub-Divisional Magistrate Gyanpur by his order dated 11th April 1968 declared Shrimati Ram Piari to be in possession over plot No. 338 situate in village Balapur Rohi, P. S. Gopiganj, district Varanasi and restrained Ram Lakhan from interfering with her possession. Ram Lakhan has died. Out of the six applicants before this Court, two are his brothers and four are his nephews.

2. It appears that civil litigation is also pending between the parties in which the applicants have been substituted as the heirs and legal representatives of Ram Lakhan. It further appears that these applicants have obstructed Shrimati Ram Piari in exercising possessory rights over plot No. 338 with the result that a complaint was filed by the Sub-Divisional Magistrate Gyanpur for taking action against the applicants for an offence under Section 188, I. P. C. on the basis of a complaint made by Doodhnath on 10-3-1972. The trial court came to the conclusion that the offence had been established and awarded a sentence of three months R. I. to the applicants. Aggrieved thereby an appeal was filed before the Sessions Judge Gyanpur, Varanasi which has been dismissed on 19th April 1977, with the modification that the sentence of imprisonment has been converted into one of fine of Rs. 100/- on each of the applicants. Hence this revision.

3. I have heard Sri Anand Swarup Srivastava learned Counsel for the applicants and Sri Prem Prakash. A. G. A. at considerable length and have also perused the impugned orders. The applicants' counsel has argued that the original order dated 11th April 1968 was passed by Sri R. C. Shukla, Sub-Divisional Magistrate Gyanpur and the instant complaint under Section 188, Indian Penal Code has been filed by Sri S. Nath, Sub Divisional Magistrate Gyanpur, Varanasi. Learned Counsel for the applicants has contended that Section 195(1)(a) Cr. P. C. bars taking of the cognizance of this complaint. Section 195(1) Cr. P. C. reads as follows:

No Court shall take cognizance-(a) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

Learned counsel has argued that Sri R. C. Shukla had initially decided the case under Section 145, Cr. P. C. on 11th April, 1968. He alone was the public servant concerned competent to file a complaint. If, for some reason or the other, he was not available then, in the alternative the complaint could also have been filed by a public servant to whom Sri Shukla was subordinate.

4. In support of this contention learned Counsel for the applicants has cited some decisions, namely AIR 1966 Cal 102 Bachuram Kar v. The State. This was a case under Section 144, Cr. P. C. in which Justice Mookerjee observed as follows:

In a case where the public servant concerned...is not available by reason of transfer or resignation or death, then a complaint might be made by some other public servant to whom he is subordinate.

While dealing with the facts of the case it appears that an ex parte order of injunction prohibiting the entry on the land in dispute under Section 144 of the Code had been made by a First Class Magistrate, while he was functioning as a Sub-Divisional Magistrate. This order is alleged to have been violated and disobeyed. The complaint was made by the First Class Magistrate for an offence under Section 188, I. P. C. It was held by that Court that the complaint was a valid complaint, although on the date he made the complaint he was not functioning as the Sub-Divisional Magistrate, Gyanpur.

5. It was further argued before that Court that if Section 195, Cr. P. C. be taken to refer to the public servant personally then it might create difficulties when the officer concerned is transferred and is not available due to death or resignation. That argument was repelled on the ground that the Legislature has already foreseen such a contingency and, therefore, it has provided that the complaint can also be filed by another public servant to whom the public servant concerned is subordinate.

6. The next case cited by the learned Counsel for the applicant is reported in AIR 1958 Andh Pra 718 Saladi Chandra Rao v. Gollakoti Sambayya. In this case an order had been passed under Section 145, Cr. P. C. which was disobeyed by the accused persons. A complaint was filed against the accused for the commission of the offence under Sections 188, 447, 506, 323 and 379, I. P. C. The Magistrate dropped the proceedings under Section 188, I. P. C. but proceeded to try the accused for offences under Sections 447, 506, 323 and 379, I. P. C. The learned single Judge of the Andhra Pradesh High Court was of the view that the accused could not be tried even for the offence under Section 447 (Criminal trespass) which involved a disobedience of the order of the Court passed under Section 145, Cr. P. C. He was of the view that the trial could proceed only under Sections 506, 323 and 379, I. P. C., which were distinct offences and the ingredients of which were not the same as of an offence under Section 188, I. P. C.

7. The third case cited by the learned Counsel for the applicants is the decision of the Madras High Court reported in : AIR1959Mad89 , Chinnamuthu Ambalam v. S. Jagannatha Chariar. In this case Justice Rama-swami dealt in detail with the ingredients of Section 188, I. P. C. in the following terms:

1. That there must be an order promulgated by a public servant,

2. That the public servant must have been lawfully empowered to promulgate such order.

3. That the person having knowledge of such order and directed by such order (a) to abstain from a certain act, or (b) to take certain order with certain property in his possession or under his management, has disobeyed such direction.

4. That such disobedience causes or tends to cause

(i) obstruction, annoyance, or injury or risk of it, to any person lawfully employed, or (ii) danger to human life, health or safety, or (iii) a riot or affray...A complaint in writing of the public servant or of some other public servant to whom he is subordinate is required. A prosecution under this section should not be launched unless all the elements necessary for a conviction are present. A complaint for an alleged disobedience of the order under Section 144, Cr.P.C. must show that the disobedience caused or tended to cause obstruction, annoyance or injury or a riot...

Out of all these requirements the most essential is that no prosecution can be instituted under this section without the personal complaint of the public servant concerned.

From a reading of the aforesaid decisions the inference appears to be inevitable that the bar of Section 195(1)(a), Cr. P. C. would deprive the Court of its power to take cognisance of an offence, unless the complaint in writing is made personally by the public servant or in the case of his non-availability by some other public servant 'to whom he is subordinate.

8. Counsel for the State has brought to my notice an earlier decision of Ramaswami, J, reported in 1957 Cri LJ 765 (Mad), In re Subramanian Chettiar, petitioner. In that case the Court was dealing with the provisions of Section 195(1)(c), Cr P. C. (old) and ovserved that:.A complaint under Section 476 of the Code should be made by the Magistrate who is presiding in the Court at the time of the complaint, and not his predecessor-in-office, before whom the offence specified in Section 195 was committed.

In my opinion the facts of this case cited by the State counsel are distinguishable. The expression 'public servant concerned' must be given its due import in Section 195 (1) (a), Cr. P. C.(old), There was no such expression used in Section 195 (1) (c), Criminal P. C. (old). As a matter of fact, Section 195 (1) (c), Cr. P. C. (old) speaks of a complaint in writing of 'such Court' and under Section 550, Cr. P. C. (old) the power and duties of a Judge or a Magistrate may be exercised by his successor-in-office. Section 195 -(1) (c), Cr. P. C. (old) does not use the expression 'Court concerned', whereas Section 195 (1) (c), Cr. P. C. (old) speaks of the 'public servant concerned'. To my mind, there was a clear distinction between phraseology of these two sub-sections to which due importance must be attached. Thus under Section 195 (1) (c), Cr. P. C. (old) 'a successor Judge' may exercise the powers contemplated therein, but under Section 196 (1) (a), Cr. P. C. (old) a successor public servant cannot exercise those powers. The power to file a complaint in the circumstances mentioned above, must be exercised by the public servant concerned personally. In the event of his non-availability due to transfer, resignation, death or any other cause, the law provides an alternative by authorising a senior public servant, to whom the public servant concerned may be subordinate, to exercise jurisdiction under Section 195 (1) (a), Cr. P. C. (Old). In my opinion the instant complaint which has been filed by a successor Magistrate is not maintainable in law.

9. Another aspect of the matter may be considered. It is argued that an order under Section 145, Cr. P. C. is one which concerns the parties to such litigation and not the public at large. Therefore, such an order cannot be said to be duly promulgated under Section 188, I. P. C. Section 188, I. P. C. runs as follows:

Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management disobeys such direction shall...be punished with simple imprisonment of...

This section contemplates promulgation of an order by a public servant.

10. In New International Dictionary, Vol. Ill, Page 1816 'Promulgate' means to make known by open declaration; proclaim; to make known or public the terms of a proposed law; to make public as having the force of law, and to announce officially. 'Promulgation' means open declaration; public and official announcement.

11. It is true that an order under Section 145, , Cr. P. C. is an order inter partes. It concerns the parties to the dispute, qua immovable property and is intended to prevent an apprehension of the breach of peace. It is binding upon the parties to the dispute. But such an order pronounced in open Court must be deemed to be duly promulgated so far as the parties to the case are concerned.' Promulgation can be made in various ways. It may be effected by a notification in the Gazette, or by publication in the newspapers, or by beat of drum or by pronouncement of an order in open Court. The object of such a promulgation is that the public in general be informed of the order and they may act in accordance therewith. It has been held by a Division Bench of our Court reported in : AIR1955All423 , State v. Tugla:

As regards the question whether the order of the Criminal Court under Section 145 was covered by the provisions of Section 188, I. P. C. I am of opinion that qua the parties to the litigation in the Criminal Court, the order having been passed in their presence, the order must be deemed to have been duly 'promulgated' so far as they are concerned. The word 'promulgate' means 'to make known by public declaration, to publish, to disseminate or to proclaim.' In essence the word connotes two ideas : (1) making known of an order, and (2) the means by which the order is made known must be by something done openly and in public. Private information will not be 'promulgation.' But the law does not prescribe any particular mode in which an order is made known openly and publicly. It may be by beat of drum; it may be by publication in Gazette; it may be by reading out an order openly in public. Any order announced in open Court will be deemed to have been promulgated, but as the Court room is a place where the litigants are expected to go and the public at large is not expected to be present though they have a right to go there if they so wish, the open declaration of the order in Court will be deemed to be a notice not to the public at large but to the parties of the case in which the order is passed. An order duly pronounced in open Court must be deemed to be duly promulgated so far as the parties to the case are concerned.

12. Therefore, disobedience of an order passed under Section 145, Cr. P. C. would be clearly punishable under Section 188, I. P. C. Subject of course to the other restrictions laid down under Section 195(a), Cr. P. C.

13. There may be other instances under the Code of Criminal Procedure where promulgation may be necessary, Section 144, Cr. P. C, may be cited as an example. Under that preventive section when danger is apprehended and the Magistrate considers that immediate steps are necessary, he makes an order in writing and that order is made public by beat of drum or otherwise. The order is directed to the public generally restraining them from frequenting or visiting a particular place. It is passed in order to prevent disturbance of public tranquillity or a riot, or an affray and the public at large has, therefore, to be informed to prevent such a contingency arising therefrom. Therefore, an order passed under Section 144, Cr. P. C. if disobeyed by the public at large would also be punishable under Section 188, I. P. C.

14. For the reasons given above, this revision application is hereby allowed. The conviction and sentence passed on the applicants for the offence under Section 188, I. P. C. is set aside.


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