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Maniklal Bhagat Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1982CriLJ1473
AppellantManiklal Bhagat
RespondentState and anr.
Cases ReferredGovernment Advocate Bihar v. Kumar Singh
Excerpt:
- .....it is submitted by the learned advocate for the petitioner before this court that the expression 'public servant concerned' in section 195(1)(a) of the code of criminal procedure refers exclusively to the person holding the office of public servant while making the order under section 144 of the code for disobedience of which the complaint for the offence under section 188 i.p.c. has been filed, that is to say, in this case to shri a. mukherjee, executive magistrate who passed the order under section 144 of the code. so the complaint has not been made according to law and no valid cognizance can be taken on that complaint. in support of this view the learned advocate for the petitioner has referred to the decision in the case of bachu ram v. state reported in : air1956cal102 . in the.....
Judgment:
ORDER

Amitabha Dutta, J.

1. This revisional application is directed against the order passed by the learned Chief Judicial Magistrate, Alipore in Case No. C-1406 of 1980 on the 25th April, 1981 rejecting the application of the petitioner to dismiss the complaint case under Section 188 I.P.C. filed against him for alleged disobedience of an order made under Section 144 of the Code of Criminal Procedure by Shri A. Mukherjee, Executive Magistrate, Alipore, 24-Parganas, on the ground that the complaint was filed by Shri A. K. Chakravorti, Executive Magistrate who as successor in office of Shri A. Mukherjee, Executive Magistrate, was not competent to file the complaint against the petitioner.

2. It appears that learned Chief Judicial Magistrate, Alipore has held that the position of law on the point taken by the petitioner is not very clear and that he has no jurisdiction to quash the order of taking cognizance on the complaint.

3. It is submitted by the learned Advocate for the petitioner before this Court that the expression 'public servant concerned' in Section 195(1)(a) of the Code of Criminal Procedure refers exclusively to the person holding the office of public servant while making the order under Section 144 of the Code for disobedience of which the complaint for the offence under Section 188 I.P.C. has been filed, that is to say, in this case to Shri A. Mukherjee, Executive Magistrate who passed the order under Section 144 of the Code. So the complaint has not been made according to law and no valid cognizance can be taken on that complaint. In support of this view the learned advocate for the petitioner has referred to the decision in the case of Bachu Ram v. State reported in : AIR1956Cal102 . In the reported case an ex parte order of injunction under Section 144 of the Code was made by Shri Poddar, a First Class Magistrate while he was functioning as Sub-Divisional Magistrate and for disobedience of that order the complaint was made under Section 195(1)(a) of the Code in respect of an offence under Section 188 I. P.C. on a subsequent date by Shri., Poddar while he was not functioning as Sub-Divisional Magistrate. The point taken in that case was that the complaint was not a valid complaint as it was not made by the Sub-Divisional Magistrate. The learned Judge Debabrata Mukherjee, J. overruled that objection holding that it was a valid complaint made by Shri Poddar, although on the date he made the complaint he was not functioning as the Sub-Divisional Magistrate. In the reported case it was argued that if. the words of Clause (a) of Sub-section (1) of Section 195 of the Code be taken to mean the public servant personally that might create difficulties in case the office was transferred or was not available by reason of death or resignation. The learned Judge observed as follows:

I do not think that there can be any difficulty whatever in a case when the public servant concerned is not available by reason of transfer or resignation or death inasmuch as the legislature has foreseen such contingency by providing in the clause itself that a complaint might be made either by the public servant concerned or by some other public servant to whom he is subordinate.

In view of such observation it is contended by the learned Advocate for the petitioner in the instant case that the expression 'public servant concerned' in Section 195(1)(a) of the Code must mean the public servant personally who made the order for violation or disobedience of which the complaint under Section 195(1)(a) is filed. On the other hand it is submitted by the learned Advocate appearing for the opposite party that the expression 'public servant concerned' in Section 195(1)(a) also includes the successor in office of the public servant whose order has been disobeyed or violated for the purpose of making complaint or in other words the successor in office of such public servant has the power and competence to make the complaint. He has cited the decision of the Supreme Court in the case of Ajab Singh v. Jogendra Singh : 1969CriLJ4 where the Supreme Court has held interpreting the provision of Section 195(1)(b) of the Code after referring to the provisions of Section 559 of the old Code that the successor in office of a Magistrate can file complaint under Section 476 in respect of offences referred to in Section 195(1)(b) of the Code. Reference has been made also to the Division Bench decision of Patna High Court in the case of Government Advocate Bihar v. Kumar Singh AIR 1938 Pat 83 : 39 Cri LJ 314 in which it has been held that making the complaint prescribed in Section 195(1)(a) of the Code is a public duty and responsibility and must not be mistaken for a personal privilege and there is nothing against any successor in office of the public servant to whom information was given making the com-' plaint under Section 182 I.P.C-. Having regard to the decision of the Supreme Court referred to above and the Division Bench decision of the Patna High Court aforesaid and the provisions of Section 559 of the Code (which was not noticed by the learned Judge Debabrata Mukherji, J. as the point did not arise in the decision cited by the learned Advocate for the petitioner) and the corresponding provisions in Section 35 of the Code of 1973, I hold that the expression 'public servant concerned' in Section 195(1)(a) of the Code includes the person holding the office of the public servant for the time being, the holder of which made the order for violation or disobedience whereof a complaint under Section 195(1)(a) is made, and also the successor in office of that public servant. This view follows from the provisions of Section 35 of the new Code, and also from the interpretation given by the Division Bench of Patna High Court in the aforesaid reported decision with which I respectfully agree. In my view the power to make the complaint conferred by Section 195(1)(a) of the Code is not a personal authority or privilege and it can be exercised by the public servant who for the time being holds the same office or is a successor-in-office of the public servant whose order is disobeyed or lawful authority is disregarded and thus offence is committed under Sections 172 to 188 I.P.C.

4. In the result the application fails and is dismissed. The rule is discharged.

Let the records be sent down as expeditiously as possible.


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