S.N. Guha Ray, J.
1. This is a Reference under Section 438 of the Code of Criminal Procedure recommending that an order of a Magistrate taking cognisance of an offence under Section 188 of the Indian Penal Code on the complaint of the Sessions Judge be set aside.
2. The facts briefly fire that on the 24th September, 1955, Jiban Krishna Haldar filed in the Court of the Suburban Police Magistrate, Alipur, a petition under Section 145 of the Code of Criminal Procedure against the members of the second party. On the 11th November, 1955, the learned Magistrate found that there was an apprehension of the breach of the peace and immediate prevention was necessary, and he accordingly ordered proceedings under Section 144 of the Code of Criminal Procedure to be drawn up against the second party requiring them to abstain from going upon the disputed land. The order of injunction was served on the members of the second party on the 19th November, 1955, and on the 24th November, 1955, Jiban filed a petition before the Magistrate alleging that the members of the second party had violated the injunction and asked the Magistrate to lodge a complaint against them under Section 188 of the Indian Penal Code. On the 8th December, 1955, the learned Magistrate rejected this petition, and on the 18th January, 1956, he rescinded the order of injunction. Jiban thereafter moved the Sessions Judge for making a complaint against the members of the second party, and the learned Sessions Judge did make a complaint, and the members of the second party were summoned under Section 188 on the strength of that complaint. They pleaded before the Trial Court that the Sessions Judge was not entitled to make a complaint, and it was only the District Magistrate who was competent to file the complaint in this case.
3. It is argued on behalf of the first party who oppose the Reference that under Section 195 (3) a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court. But under Section 195 (1) (a) no Court is entitled to take cognizance of offences under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other public servant to whom he is subordinate. It does not deal with a complaint by a Court so that the question of subordination of Courts does not at all arise here. What Section 195 (1) (a) deals with is a complaint by a public servant, and the subordination of public servants is not determined by the provisions of Sub-section (3) of Section 195 which deals with the question of subordination of Courts.
4. As far as a Magistrate is concerned Section 17 (1) of the Code of Criminal Procedure lays down in clear terms that all Magistrates appointed under Sections 12, 13 and 14 shall be subordinate to the District Magistrate. Evidently, therefore, when the Magistrate before whom the application was made by the first party for filing a complaint against members of the second party under Section 188 of the Indian Penal Code refused to file such a complaint, it was only the District Magistrate who was competent to file the complaint under that section, and the Magistrate was not entitled to take cognisance of the offence on the complaint of the Sessions Judge.
5. The Reference must accordingly be accepted. The order of the learned Magistrate takingcognisance of the offence under Section 188 of theIndian Penal Code on the complaint of the learned Sessions Judge together with order directingissue of processes against the members of the second party under Section 188 of the Indian Penal Codemust be set aside.