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Habibar Rahaman Vs. Jagannath Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1982CriLJ1652
AppellantHabibar Rahaman
RespondentJagannath Mondal and ors.
Cases ReferredDalganjan Koeri v. State
Excerpt:
- .....the said case. the aforesaid case arose out of a complaint under section 188 i.p.c. filed by the executive magistrate, katwa. the undisputed facts are that on 6-7-77 the executive magistrate, katwa, in misc. case no. 58 of 1977 passed an order under section 144 cr. p.c. restraining the present petitioner and some others from entering upon the land in dispute. the said order was duly promulgated on 15-7-77. on 19-7-77 the mondal opposite parties filed a petition alleging that in spite of service of notice of the proceedings and the order under section 144 cr. p.c. the present petitioner and some others violated the aforesaid order on 17-7-77, entered upon the disputed land and interfered with the possession of the said opposite parties. in the aforesaid circumstances the mondal opposite.....
Judgment:

N.G. Chaudhuri, J.

1. This Revisional petition under Section 397 read with Section 482 Cr. P.C. is directed against orders dated 4-11-78 and 4-4-79 passed by the Sub-Divisional Judicial Magistrate, Katwa in case No. C/458 of 1978 and is for quashing the proceedings in the said case. The aforesaid case arose out of a complaint under Section 188 I.P.C. filed by the Executive Magistrate, Katwa. The undisputed facts are that on 6-7-77 the Executive Magistrate, Katwa, in Misc. Case No. 58 of 1977 passed an order under Section 144 Cr. P.C. restraining the present petitioner and some others from entering upon the land in dispute. The said order was duly promulgated on 15-7-77. On 19-7-77 the Mondal opposite parties filed a petition alleging that in spite of service of notice of the proceedings and the order under Section 144 Cr. P.C. the present petitioner and some others violated the aforesaid order on 17-7-77, entered upon the disputed land and interfered with the possession of the said opposite parties. In the aforesaid circumstances the Mondal opposite parties prayed for prosecution of the present petitioner and others under Section 188 I.P.C. The Executive Magistrate called for a report upon enquiry from O. C. Ketugram. O. C. Ketugram reported on 31-8-77 that the Mondal opposite parties had cultivated the disputed land peacefully and offence under Section 188 I.P.C. was not established. An objection was raised with regard to the report aforesaid and the Executive Magistrate entrusted a second enquiry to C. I. of Police, Katwa. C. I. of Police, Katwa submitted his report on 12-12-77. He reported that the order under Section 144 Cr. P.C. was violated as alleged. On the basis of the said report of the Court Inspector the Executive Magistrate made a complaint to the S.D.J.M. Kalwa on 27-10-78. He alleged '... it appears from the report of C. I. that the said persons (meaning the present petitioner and others) violating the order under Section 144 Cr. P.C. entered into the disputed land on 17-7-77 and interfered with the cultivation of the land of the petitioner No. 1 and his labourers'. As a public servant concerned whose orders have been disobeyed he lodged the complaint under Section 195(1)(a) of the Cr. P.C. By the said order dated 4-11-78 impugned herein the Sub-Divisional Judicial Magistrate took cognizance of the complaint and ordered issue of summons.

2. Mr. Dilip Dutta, the learned advocate for the petitioner questions the validity of the proceedings before the S.D.J.M. principally on two grounds. His first contention is that the order under Section 144 having been violated on 17-7-77 as alleged, the complaint dated 27-10-78 is barred by limitation. He contends that an offence under Section 188 I.P.C. being punishable with imprisonment for a term not exceeding one year the cognizance of the offence under Section 468(2)(b) of the Cr. P.C. could not be taken after one year of the commission of the offence. His second contention is that the essential ingredients of the offence under Section 188 I.P.C. were not disclosed in the complaint and as such cognizance should not have been taken; and for that reason the proceedings are liable to be quashed,

3. The first contention of Mr. Dutt does not weigh with us. The Executive Magistrate, we have noted, came to know of the violation of the order from the report of the Circle Inspector dated 12-12-77 and he made the complaint on 27-10-78. Section 468(2)(b) Cr. P.C. prescribes one year as the period of limitation for an offence like the one under Section 188 punishable with imprisonment for a term not exceeding one year. The period of limitation as prescribed is required to be computed, under Section 469(1)(b) Cr. P.C. where the commission of the offence was not known to the person aggrieved by the offence, from the first day on which the offence comes to the knowledge of such person. In the instant case the C. I. reported about commission of the offence on 12-12-77 and coming to know that the Executive Magistrate made the complaint on 27-10-78 i.e. within one year. It is not therefore, possible to hold that the complaint was taken cognizance of after the prescribed period. In this connection we would also note that some of the persons other than the present petitioner against whom allegation of the violation of the order was made raised this point of limitation in Criminal Motion No. 79 of 1979 in the Court of Additional sessions Judge, 3rd Court, Burdwan and the said Court by its order dated 18-1-80 rightly overruled such a contention and upheld the order of the S.D.J.M. Dt. 4-4-78.

4. We next proceed to probe the second contention of Mr. Dutt. Section 188 I.P.C, it should be noted, occurs in Chapter X of the I.P.C. under the heading 'Of Contempts of the Lawful Authority of Public Servants'. The offences mentioned in the Chapter are undoubtedly meant to enforce obedience and respect to the lawful authority of the public servant belonging to the Judicial, Revenue and Police Departments. Nonetheless, it should not be overlooked that mere disobedience of an order promulgated by a public servant does not give rise to an offence contemplated under Section 188 I.P.C. From an analysis of Section 188 I.P.C. one of the most important ingredients of the offence appears to be that the alleged offender has violated an order duly promulgated by a lawfully empowered officer and such disobedience has caused or tended to cause obstruction, annoyance or injury to any person lawfully employed or caused or tended to cause danger to human life health, safety or caused or tended to cause riot or affray. Second part of Section 188 I-P-C. while spelling out expressly the consequence of disobedience of an order making such disobedience culpable as an offence expressly provides 'if such disobedience causes or tends to cause obstruction, annoyance or injury Or risk of obstruction, annoyance Or injury to any persons lawfully employed'. The words 'lawfully employed' occurring in the section should not be overlooked or ignored. Violation of an order promulgated by a public servant lawfully empowered to promulgate such order is not by itself an offence. Such disobedience to amount to an offence under Section 188 I.P.C. should amongst others cause Or tend to cause obstruction, annoyance or injury to any person 'lawfully employed'. Under Section 144(3) Cr. P.C.- an order may be directed to persons residing in a particular place or area or to the public generally when frequenting or visiting a particular place or area; and it is common knowledge that for enforcement 6f such orders persons such as Police and other officials are lawfully employed. An Offence would be committed only if disobedience of the order causes of tends to cause obstruction annoyance or injury only to persons so employed. For constituting the violation of an order under Section 188 I.P.C. mere disobedience of the order is enough; it must in addition be attended with evil consequences of disobedience as spelt out in Section 188 I.P.C. noted earlier. It has been held in Bachuram v. State : AIR1956Cal102 that 'mere disobedience of an order promulgated by public servant is not in itself an offence unless it entails one or other of the consequences which the section itself mentions'. Similar view has been expressed in the case reported in Pradip Chowdhury v. State AIR 1960 Assam 20 : 1960 Cri LJ 215 and in Dalganjan Koeri v. State : AIR1956All630 and in In Re. Subramaniam, reported in : AIR1970Mad333 . In the complaint made by the Executive Magistrate and taken cognizance of by the learned Sub-divisional Judicial Magistrate there is no indication that besides disobedience of the order of the Executive Magistrate any consequence mentioned in Section 188 I.P.C. resulted or was apprehended. From the materials on record it was prima facie evident that cultivation of the disputed land by the Mondal opposite parties and their labourers was only interfered with in violation of the order of the Executive Magistrate. The complaint did not disclose the most important ingredient of an offence under Section 188 I.P.C. as discussed above. In the circumstances we are of opinion that the learned Sub-Divisional Judicial Magistrate was wrong in taking cognizance of the offence complained of by the Executive Magistrate. The proceedings in the case were therefore wholly illegal and are liable to be quashed.

5. The revisional petition accordingly succeeds and the Rule is made absolute on contest. The orders passed by the S.D.J.M. Katwa dated 4-11-78 and 4-4-79 in case No. 458 of 1978 are set aside and the proceedings in connection with the said case started on the basis of the complaint dated 27-10-78 made by the Executive Magistrate, Katwa are quashed.

N.C. Mukherji, J.

6. I agree.


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