(1) Cri. Application No. 3859 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3859 of 2010 Ramprasad s/o. Madhavlal Porwal, Age : 58 years, Occupation : Medical Practitioner, .. Applicant R/o. Balaji Mandir Road, Partur, (Original Taluka : Partur, District : Jalna. complainant) versus 1. Keshavrao s/o. Govindrao Kulkarni, Age : 67 years, Occupation : Agriculture, R/o. Balaji Mandir Galli, Mondha, Partur, Dist. : Jalna. 2. Tukaram s/o. Sakharam Deshmukh, Age : 58 years, Occupation : Service, Ex-Chief Officer, Partur Municipal Council, Partur, Dist. : Jalna, .. Respondents Presently serving in Tahsil, Sailu, (Original accused) District : Parbhani. ....................... (2) Cri. Application No. 3859 of 2010 Mr. Atul R. Kale, Advocate, for the applicant. Mr. S.P. Sonpawale, Advocate, for respondent nos.1 and 2. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 23RD NOVEMBER 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant i.e. original complainant seeking leave to file appeal challenging the judgment and order of acquittal dated 21st June 2010, rendered by learned Judicial Magistrate (First Class), Partur, in S.T.C. No. 89/2007, thereby acquitting the respondents i.e. original accused for the offence punishable under Section 188, read with Section 34 of Indian Penal Code. 3. I have perused the impugned judgment dated 21st June 2010, and the record and proceedings with the assistance of the learned Counsel for the parties. (3) Cri. Application No. 3859 of 2010 4. Parties hereinafter are referred to as per their original status i.e. complainant and accused. 5. Briefly stated, facts of the case are that deceased Shantabai was wife of complainant, namely, Dr. Ramprasad Porwal, and she owned house Nos. 1748 and 1749/1 at Balaji Mandir Road, Mondha, Partur. The complainant and his children are legal representatives of deceased Shantabai and being Karta of the family, he filed the complaint. It is alleged that towards west side of the house of the complainant, there is north-south common lane to approach the house of accused no.1 Keshavrao. The said common lane was being used by the complainant and accused no.1. Accused no.1 started construction of the plot which is on western side of the common lane. The complainant, on behalf of his wife, as Mukhtiyar, filed Regular Civil Suit No. 240/1997 in Civil Court, Partur, in which the court granted stay. It is alleged that inspite of the said stay of the court, accused no.1 Keshavrao dug a drain in common land and caused inconvenience to the way of complainant. Accused no.2 was serving as Chief Officer of Municipal Council, Partur, and accused nos. 3 and 4 were his employees, against whom the complaint was already dismissed by the learned Judicial Magistrte (F.C.), Partur, on 20th September 2008. It is also alleged that since accused no.1 disobeyed the order of the Civil (4) Cri. Application No. 3859 of 2010 Court, the complainant applied to respondent nos.2 to 4, but all of them assisted to accused no.1 declaring that there is no contempt of the court. It is contended that the accused, in furtherance of their common intention, committed contempt of court. Accordingly, it is alleged that inspite of stay order of the court, accused no.1 dug out a drain in common lane and obstructed the way of complainant and other accused persons assisted accused no.1 for such act. Hence, the complainant filed the complaint and prayed to punish accused persons for committing offence under Section 188 of Indian Penal Code. 6. In support of the case of the complainant, namely, Ramprasad Porwal, he examined himself as PW 1, as well as, examined Raosaheb s/o. Ramchandra Deshmukh, as PW 2; and P.S.I. Sayyed Mukhtar Ali as PW 3. After considering the oral and documentary adduced and produced by the complainant, and after considering rival submissions advanced by the learned Counsel for the parties, learned trial court acquitted the accused persons for the offence punishable under Section 188, read with Section 34 of Indian Penal Code, by the impugned judgment dated 21-6-2010. Being aggrieved and dissatisfied by the said judgment, the applicant i.e. original complainant has preferred the present application seeking leave to file appeal against the order of acquittal. (5) Cri. Application No. 3859 of 2010 7. An allegation was made by the complainant, that accused no.1 disobeyed order of the Civil Court. Hence, in the said context, learned trial court has discussed the legal position in respect of applicability of Section 188 of IPC to judicial order, in para 10 of the impugned judgment, and observed that in a case of Dalganjan Koeri Vs. State, reported in AIR 1956 Allahabad 630, the Hon. High Court observed, " We are of opinion that Sec. 188 IPC does not contemplate orders passed by civil or revenue Courts in Judicial proceeding. Any breach of such orders can be adequately dealt with under the provisions of the Code of Civil Procedure but it cannot be said that they are orders promulgated within the meaning of section 188 I.P.C. the disobedience of which would result into obstruction annoyance or injury. Our answer, therefore, to the question referred to us is that orders passed in judicial proceedings by civil, revenue or criminal courts are not governed by Sec. 188 I.P.C." Further in the same case, the Hon. High Court ruled :- " But the last observation seems to go little too far. This section includes in its ambit both executive as well as judicial orders. As it is enacted to ensure public (6) Cri. Application No. 3859 of 2010 tranquility, health and convenience, the order of any public servant whether on the executive or judicial side which is made for this purpose should be governed by this section. The test is whether the order is for the purpose of maintaining public tranquility, health, safety or convenience or not. If the order fulfils this requirement it's breach would be punishable under this section. " Relying upon the observations made in the said judgment, learned trial court further observed that, "from the above authority, it is very clear that applicability of the judicial order to section 188 of Indian Penal Code is for limited purpose. When any judicial order is passed for the purpose of maintaining public tranquility, health safety or convenience, its breach would be punishable under this section. Having gone through the orders passed by the Civil Court in R.C.S. No. 240/1997, dated 24-10-1997 and dated 9-12-1997 it is crystal clear that these orders are passed by the Civil Court in a Civil Suit pending between the complainant and accused no.1. By way of order dated 24-10-1997 Court directed to both complainant and accused no.1 to maintain status quo. Whereas by order dated 9-12-1997 the court restrained defendant / accused no.1 from doing any construction over 3 feet width common way existing between the houses of complainant and accused no.1. Thus, on (7) Cri. Application No. 3859 of 2010 plain reading of these orders of the court there appears no any smell of direction to the public at large or all these orders are not passed for public tranquility, health safety or convenience." Hence, it is further observed that, "In such legal background even if it is presumed that accused no.1 has dug out any pit over the common lane after passing the order of the court such act cannot be punished under Section 188 of Indian Penal Code", and the said observations cannot be faulted with. 8. As regards, accused no.2, learned trial court has observed that, "It is not the case of complainant that accused no.2 has actually performed any act in disobedience of the order of the Court. What is alleged that accused no.2 assisted to accused no.1 in committing breach of the order of the court. However, it is noticed that the accused no.2 was serving as Chief Officer of the Municipal Council, Partur, but he is not party to R.C.S. No. 240/1997. Moreover, there appears no any common intention between accused no.1 and accused no.2 to commit breach of the order of the court." Hence, it is further observed that, "Section 188 of Indian Penal Code is not attracted in the case", and the said findings do not appear to be out of place. 9. The allegations are made by the complainant, that after passing stay order by the court in R.C.S. No. 240/1997, (8) Cri. Application No. 3859 of 2010 accused no.1 started digging drain in common way in 2006. However, the complainant could not state specific time, date or month of such activity of accused no.1. Moreover, the complainant admitted in his cross examination that the court vide its order in R.C.S. No. 240/1997 restrained accused no.1 Keshavrao from doing any construction in the common way and accused no.1 has not made any construction in the said lane after passing order by the court, and the said admission of the complainant clearly indicates that there is no disobedience of the order of the court by the accused no.1. Moreover, admittedly, accused no.2 was serving as Naib Tahsildar at Partur and additional charge of Chief Officer of Municipal Council, Partur, was with him, and as observed herein above, accused no.2 was knot party in R.C.S. No. 240/1997. Moreover, no evidence has been brought on record by the complainant to show that the complainant has supplied copy of stay order of the court to accused no.2. Moreover, there is no evidence on record to show that accused no.2 has done any act intentionally to help accused no.1. Moreover, accused no.2 is a Government servant. The complainant has not taken permission of the competent authority to prosecute him as required by law. Besides, it also appears that except bare words of the complainant, there is no evidence on record to show that accused no.1 started digging on the disputed common way and disobeyed order of the court. (9) Cri. Application No. 3859 of 2010 10. In the circumstances, after scrutinizing and assessing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, by the impugned judgment dated 21-6-2010, for the charges levelled against them, is a possible view to be adopted and the said view does not appear to be perverse. Moreover, the reasoning given by the learned trial court, while coming to the conclusion of acquittal of the accused cannot be faulted with, and hence, no interference therein is called for in appellate jurisdiction, and therefore, present Application deserves to be dismissed. 11. In the result, present Criminal Application, which is sans merits, stands dismissed. Leave to file appeal is refused. 12. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/3859ka