IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19548 of 2007 RAJNATH DUBEY & ORS Versus STATE OF BIHAR & ANR ----------- 7. 26.03.2010 This is an application against the order dated 2.9.2001 of the learned C.J.M., Kaimur at Bhabhua whereby cognizance of offence under Section 188 of the Indian Penal Code has been taken against the petitioner. This order was a subject matter of the Criminal Revision No.123 of 2010/85 of 2003 before 1st Additional Sessions Judge, Bhabhua which was disposed of by an order dated 10.11.2006 whereby the order dated 20.9.2001 of the learned C.J.M. was upheld. The impugned order dated 20.9.2001 simply mentions that on the official complaint filed by the S.D.M., Kaimur at Bhabhua cognizance of offence under Section 188 of the Indian Penal Code was taken against the petitioner. It appears that a proceeding under Section 144 Cr.P.C. was initiated against the petitioner and Opposite Party No.2 who are brothers and during proceeding the petitioner was prohibited from going over the land. The official complaint of the S.D.M., Kaimur at Bhabhua mentioned that despite his prohibitory order, the petitioner went over the land and started cultivation and thus there was violation of the order. The S.D.M., Kaimur at Bhabhua filed the official complaint and on simple assertions that such a complaint was filed, the learned C.J.M., Kaimur at Bhabhua took cognizance of offence vide impugned order dated 20.9.2001. The essential particulars as required for initiation of a 2 proceeding under Section 188 of the Cr.P.C. is that the disobedience must be shown to have caused or tended to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed. In the report of the SDM, Kaimur at Bhabhua, it is simply mentioned that his order was not obeyed but there is no mention that the disobedience caused any obstruction, annoyance or injury to the officer concerned or any other person lawfully employed. The impugned order whereby cognizance of the offence was taken does also not mention any such ingredients. Since the very basic ingredients necessary for initiation of a prosecution under Section 188 of the Cr.P.C. is lacking and the learned C.J.M. was not justified in taking cognizance for the offence. In such view of the matters, I find that the impugned order of the learned C.J.M. suffers with illegality and therefore, it cannot be sustained under law. Accordingly, the order dated 2.9.2001 is set aside. The application is allowed. (C.M. Prasad, J.) Ravi/-