IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47136 of 2007 1. ARJUN RAI S/O LATE SHEO JATAN RAI 2. GOVIND RAI @ GOVINDJEE RAI S/O ARJUN RAI 3. SRI KISHUN RAI SON OF LATE DUDHESHWAR RAI --- PETITIONERS Versus 1. STATE OF BIHAR 2. RAJENDRA PRASAD RAI, S/O LATE SHIV JATAN RAI. -- OPP.PARTIES. For the Petitioner : Mr. Bhavesh Kumar Advocate. For the State : Mr. B.P.Singh APP For the O.P : Mr. S.S.Diwevedi, Sr. Advocate. ----------- 05 26.08.2010 Initially the present application was filed seeking quashment of the F.I.R. During the pendency of this application the investigation taken up by the Investigating Agency pursuant to the lodgement of the F.I.R. concluded in submission of charge sheet which gave rise to order dated 30.10.2007 whereby cognizance under Sections 143,144 and 188 of the Penal Code has been taken by the learned Judicial Magistrate. That order has been sought to be challenged by filing I.A. No. 1304 of 2010. Since the order has been passed during the pendency of the present application, this Court allows the aforesaid interlocutory application. Heard both sides. Petitioners are accuseds of the F.I.R. which ultimately culminated into the order taking cognizance. It is submitted that a bare perusal of the F.I.R. would show that the accused persons (petitioners herein) had violated an interim order passed by a Court of law, in the present case by a Bench of this Court in a suit/second appeal pending before it. It appears that an order of status quo was granted by this Court in the aforesaid second appeal. The informant alleges that said factum was made known to the officer-in-charge concerned yet accused persons on the said date variously armed with certain weapons arrived at the disputed plot and made show of their force. It is thus the allegation that the petitioners violated the order of this Court. As noted earlier the matter was investigated whereafter charge sheet was submitted which gave rise to order taking cognizance under the Sections noted above. Learned counsel for the petitioners while assailing the sustainability of the order submits that the present order is vitiated on account of the provisions contained under Sections 195 of the Code of Criminal Procedure. It is next contended that going by the ingredients of Section 188 of the Penal Code it would manifestly appear that any order promulgated by the public servant lawfully empowered to promulgate such order and violation thereof shall constitute the offence. It is submitted that the order, if any, was passed in a suit between two parties accordingly it cannot be said to be an order duly promulgated by public servant. He relies on a judgment reported in 1997(1) BLJ 1214 (Dr. Shyam Narayan Arya v. The State of Bihar). Learned counsel for the opposite party no.2, on the other hand, supported the impugned order. It is contended that the allegations contained in the F.I.R. at least definitely indicates commission of offence punishable under Sections 143 and 144 of the Penal Code. I have considered the submissions advanced on behalf of the parties. Section 195 of the Code reads as under:- “ Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance- a) (i) of any offence punishable under Sections 172 to 188 (both inclusive ) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860) namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court or, (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section(1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause(b) of sub-section(1), 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, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” Section 188 of the Penal Code reads as under:- “188. Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management disobeys such direction, Shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; And if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with find which may extend to one thousand rupees, or with both.” The prosecution case is that there was status quo granted in a second appeal pending between the parties. It is the prosecution case that the accuseds/ petitioners herein violated the aforesaid interim order of this Court passed in Second appeal no. 392 of 2004 (Annexure-2). A bare perusal of Section 195 of the Code indicates that for violation of any such interim order a complaint is to be lodged at the instance of the Court which will ignite the prosecution. Here is a case where the F.I.R. was lodged by a person who is party to the second appeal but not representing the Court. In that view of the matter, the present proceeding at the instance of opposite party no2 was not maintainable. If the proceeding was not maintainable then the order taking cognizance automatically has to go. The argument advanced on behalf of the opposite party needs attention at this stage. It has been argued that going by the allegations contained in the F.I.R. at least offence punishable under Section 143 and 144 of the Penal Code are made out. This Court in the case of Dr. Shyam Narayan Arya (supra) has held if the accuseds could not be prosecuted for an offence under Section 188 IPC in the absence of a complaint of the public servant, he could not be prosecuted for an offence under Section 143 IPC for being member of an unlawful assembly the common object of which was to commit an offence under Section 188 I.P.C. In that view of the matter, this Court finds force in the submissions advanced on behalf of the petitioners. This Court is thus satisfied that the order taking cognizance stands vitiated on account of the fact that the criminal proceeding was not initiated in terms of Section 195 of the Code. This Court, however, refrains from recording any view with regard to the other submission of the learned counsel for the petitioners. Consequently the application succeeds. The entire prosecution initiated against the petitioners as well as order dated 30.10.2007 taking cognizance passed by Chief Judicial Magistrate, Bhojpur, Ara in Piro P.S. Case no. 169 of 2007, stands quashed. The application is allowed in the aforesaid terms. Sym ( Kishore K. Mandal, J.)