IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5356 of 2009 1. Janardan Prasad, son of Vasudeo Prasad. 2. Madan Prasad, son of Jagdev Prasad. 3. Jagdev Prasad, son of Bachchu Prasad. 4. Prem Prasad, son of Rajdeo Prasad. 5. Bhushan Prasad, son of Rajdeo Prasad. All resident of Village- Karshahiya, P.S.-Dhaka, District- East Champaran. …………………………Petitioners. Versus 1. The State of Bihar. 2. Rajdeo Prasad, son of Hari Chandra Prasad. Resident of Village- Gamharia, P.S. Dhaka, District- East Champaran. ……………………..Opposite Parties. For the petitioners :- Mr. Mahendra Thakur, Advocate. Mr. S. B. Pandey, Advocate. For O.P. No. 2. :- Mr. Ansul, Advocate. For the State :- Mr. Damodar Prasad Tiwary, A.P.P. ----------- 3. 07. 12. 2010. Heard. This criminal miscellaneous petition is for quashing the order dated 20. 07. 2007, passed by the S.D.J.M., Sikarahna (Motihari) in Official Complain Case No. 22/07, by which S.D.J.M., Sikarahna has taken cognizance for offence under Section188 I.P.C. However, from the record it transpires that encroachment under Public Encroachment Act, an order passed by the Circle Officer, Dhaka, for removal of encroachment by order dated 08. 12. 2004 and order dated 11. 03. 05 encroachment was removed. However, against the order of encroachment the petitioners preferred an appeal before the Additional Collector, East Champaran at Motihari and the said appeal was allowed by which Additional Collector, East Champaran has set aside the order of encroachment filed by the 2 Circle Officer, Dhaka and the said appeal was allowed by order dated 22. 03. 2007. However, thereafter, on 10. 07. 2007, Sub Divisional Officer lodged a complaint case under Section 188 I.PC. before the S.D.J.M., Sikrahana. Learned counsel for the petitioners however, contends that on the basis of complaint, learned S.D.J.M. taking cognizance by the impugned order. However, learned counsel for the petitioners contends that complaint petition itself filed in pursuance of the order of the Circle Officer and the alleged encroachment by these petitioners. However, in the complaint, there is no mention of the date of encroachment and it has further been contended that said order of the Circle Officer by which it was ordered to remove the encroachment has been challenged before the Additional Collector, East Champaran in appeal and in appeal, the said order of the Circle Officer was set aside by order dated 22. 03. 2007. Hence, it has been contended that after setting aside the order of the Circle Officer that no order remains by which the allegation has been made that petitioners was violated. Learned counsel for the opposite party however, submits that against the order of taking cognizance a criminal revision was earlier filed before the District Judge (the said order of criminal revision 3 has been attached with as Annexure-3 of the said petition) and hence contends that it is a second revision and the second revision is not maintainable. Hence this criminal miscellaneous filed, but no relief can be granted. However, does not dispute the legal position of the factual matrix that complaint has been filed after order of the Circle Officer set aside in appeal. However, taking into consideration the factual aspect that when the order of the Circle Officer set aside in appeal and hence there is no order remains to be violated particularly in the complaint there is no mention about violation and the petition under Section 188 I.P.C. has been filed on 10. 07.2007. If the order of the Circle Officer set aside in appeal by Additional Collector then there is no order remain which can be said to be violated and hence order of taking cognizance itself appears on the fact which is non-est. Hence allowing the criminal prosecution to continue is quite abuse of the process of the Court and hence in such circumstances, this Court is not precluded for interfering under Section 482 Cr.P.C. with gross injustice apparent on the face of the facts and circumstances and hence impugned order is hereby set aside and the petition is allowed. m.p. ( Gopal Prasad, J.)