The instant application has been preferred by the complainant-petitioner against the order dated 06.09.2002, passed by the learned Additional Sessions
Judge-I, Chatra in Criminal Revision No.125 of 1999, whereby the revision application filed by the opposite party No.2 has been allowed and the order
taking cognizance taken against the O.P. No.2 dated 24.07.1999 has been set aside.
The brief facts of the case is that a proceedings u/s 144 Cr.P.C was initiated on 18.09.1998 on the application of the petitioner-Md. Habib Mian.
Notice to the O.P. No.2 herein was issued on the very same day and parties were directed not to go upon the disputed land as well as they were
restrained from doing anything upon the same. It appears that the petitioner- Md. Habib Mian filed an application on 21.9.98 before O.P. No.3 alleging
therein, inter alia that the O.P. No.2-Bakar Ali has violated the prohibitory order & prayed for proceeding u/s 188 I.P.C against him. Thereafter, a
report was called from the Anchal Adhikari Simeria, who submitted the report against which show cause was filed by the O.P. No.2. Ld. Sub-
Divisional Magistrate being not satisfied with the show cause filed a complaint petition in the court of C.J.M, Chatra. Ld. C.J.M accordingly took
cognizance for an offence punishable u/s 188 I.P.C against O.P. No.2.
The O.P. No.2 challenged the aforesaid order of cognizance on 3 grounds:
(a) Notice under Section 144 Cr. P.C was issued in his absence and the same was not served upon O.P. No.2. Report of the process server
mentioned on the back of the notice clearly shows that notice was not served upon him.
(b) Report of the Anchal Adhikari was called in the absence of the O.P. No.2.
(c) The S.D.M, Chatra has filed a petition of complaint but no where he has stated that such disobedience has caused or tends to cause any
obstruction, annoyance or injury to any person lawfully employed nor it is stated that such disobedience caused or tends to cause damage to human
life.
The learned trial court after hearing both the parties allowed the revision application filed by the O.P. No.2 on the ground that the complaint of an
offence punishable under Section 188 IPC must disclose that the disobedience of the order led to the consequence narrated under Section 188 IPC
otherwise no cognizance can be taken on such complaint. The learned trial court further held that neither there was any promulgation of an order in
proper manner nor the alleged accused/revisionist (O.P. No.2) had any knowledge about the same, and set aside the order taking cognizance against
the O.P. No.2.
The learned counsel for the petitioner submits that the impugned order passed by the learned Additional Sessions Judge, Chatra is bad in law and
suffers from various infirmities. He further submits that Section 144 sub-section 2 clearly states that an order under this Section in case of emergency
or due to unavoidable circumstances can be passed ex parte. As such the first ground raised by the O.P No.2 before the court below that notice under
Section 144 was issued in his absence is nonest in the eye of law. He further draws attention of this Court on the explanation to Section 188 of Indian
Penal Code in order to counter the ground number 'C' raised by the O.P. No.2 before the court below and submits that it is not necessary that the
offenders should harm or show disobedience rather it would be sufficient if he knows about the order about Section 144 Cr.P.C and if he disobeyes it
he shall be punished under Section 188 IPC.
For better appreciation, sub-section 2 of Section 144 Cr. P.C and explanation of Section 188 IPC are quoted herein below:
Sub section 2 of Section 144 Cr. P.C :
“An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a
notice upon the person against whom the order is directed, be passed ex parte.â€
Explanation of Section 188 of I.P.C :
“It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is
sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.â€
Relying upon the aforesaid two provisions he submits that the impugned order is bad in law and deserves to be set aside and order of cognizance taken
against the O.P. No.2 should be restored.
Learned counsel for the O.P. No.2 submits that there is no error, whatsoever, in the impugned order and the learned court below has rightly set aside
the order taking cognizance as it is dehors the provision of law. He further submits that there was no specific averment in the complaint petition that
the prohibitory order u/s 144 was disobeyed or such disobedience has caused or tends to cause any obstruction annoyance or injury to any person or
such disobedience of the order caused damage to human life. He further submits that in absence of such specific averment the complaint petition was
rightly quashed.
Heard learned counsel for the parties and perused the impugned order including the LCR.
It is true that explanation to Section 188 IPC clearly indicates that it is not necessary that the offender should intend to cause harm or show his
disobedience which is likely to cause harm rather it is sufficient that he disobeys the prohibitory order knowingly which is likely to cause harm. It is
also true that an order under Section 144 i.e. the order passed in cases of nuisance or apprehension of danger that in case of emergency or in cases
the circumstances do not admit of serving the notice in due time upon the person against whom the order is directed can be passed ex parte. But at
the same time in the complaint petition which has been filed by the SDJM, Chatra no where it is stated that the disobedience of the order passed by
the learned Magistrate has caused any obstruction or injury to any person nor it is stated that such disobedience caused damage to human life. In
absence of such specific statement in the complaint petition which are the essential ingredients for proceeding in terms of Section 188 of Indian Penal
Code the proceeding will fail. In this regard the order passed in the case of Ram Ajodhya Baitha and Ors. vs. The State of Bihar & anr. passed in Cr.
Misc. No.18626 of 1995 may be referred in which the law has been settled as under:
Para 2 “The learned counsel for the petitioner has challenged the order taking cognizance on the sole ground that albeit the Sub-
divisional Magistrate has filed a petition of complaint but nowhere he has stated that such disobedience has caused or tends to cause any
obstruction, annoyance or injury to any person lawfully employed nor it is stated that such disobedience caused or tends to cause damage
to human life. In absence of such statement in the complaint petition which are essential ingredients for proceeding in terms of Section 188
of the Indian Penal code. In the light of the submission of the learned counsel, I have perused the complaint petition wherefrom it appears
that no such averment has been made and accordingly I am of the view that the submission of the learned counsel is well founded. I am
supported by unreported Division Bench judgment of this court in the case of Gyasuddin Mian and others vs. State of Bihar and ors. vide
Cr.W.J.C. No.738 of 1994 disposed of on 24.10.94. Accordingly, the order taking cognizance dated 8.11.95 of the alleged officer against
the petitioners is quashed. Consequently, this application is allowed.â€
As stated herein above from perusal of the complaint petition it appears that no such averment has been made and accordingly I am of the considered
opinion that there is no error committed by the learned revisional court in setting aside the order taking cognizance dated 24.07.1999 passed by the
learned C.J.M, Chatra.
The learned counsel has failed to point out any procedural error or perversity in the order impugned as such, the instant application deserves to be
dismissed.
Ordered accordingly.
Let the lower court record be sent to the concerned court forthwith.
Let a copy of this order be communicated to the court concerned forthwith through 'FAX'.
