Patna High Court
Umanath Prasad And Ors. vs Dhirendra Prasad Singh And Ors. on 2 September, 1959
Equivalent citations: 1960CRILJ387
ORDER Kanhaiya Singh, J.
1. This application in revision is directed against the order of the District Magistrate of Saran dated 17-10-1958. by which he directed that a complaint he filed against the petitioners for their prosecution Under Section 188 of the Indian Penal Code.
2. The facts are short and simple. In a proceeding Under Section 145 of the Code of Criminal Procedure between the parties the following order was passed by the Magistrate on the 18th July, 1953:
These two latrines in the ground floor of holding No. 379 are by all means in possession of the first party and I therefore forbid all disturbances of possession against the first party so far these two ground floor latrines in holding No, 379 are concerned unless and until he (the first parties) be evicted in due course of law from a Civil Court.
As regards the wall there is balanced evidence to the effect that it is partition wall between the two parties. There is also evidence that though the wall belongs to the 1st party's holding the 2nd party has got his chapper and kores resting on this wall. This wall cannot therefore be held to be exclusively in possession of either party and consequently the door which is in the wall cannot be sealed up by the first party.
Under the circumstances this wall including the door in question is attached Under Section 146 Cr.PC. until the question of right and possession over the wall is determined by a court of competent civil jurisdiction.
3. On 29-12-1957. that is, nearly four years after the said order, the petitioners repaired the wall which had been attached Under Section 146 of the Code of Criminal Procedure. It is alleged, and there his no dispute, that the wall was in a dilapidated I condition and there was a marriage of a girl in his family and on account of this marriage ceremony 'the wall was repaired. On 16-1-1958 Dhirendra Kumar opposite party presented an application before the Sub-divisional Officer, Chapra, for prosecution of the petitioners Under Section 188 of the Indian Penal Code on the ground of disobedience of the order of the court dated 18-7-1953, in that the repair had been done without the permission of the court. By his order dated 19-5-1958 the Sub-divisional Officer rejected the petition holding that the petitioner before him had been inspired by enmity and that the action of these petitioners did not amount to a violation of the attachment order. The opposite party took this matter in revision to the District Magistrate. Saran, He was, however, of the opinion that there was disobedience of the order of the court and the petitioners were liable to be prosecuted for the offence Under Section 188 of the Indian Penal Code and accordingly he ordered a complaint to be lodged. It is against that order that the petitioners have come up in revision to this Court.
4. In support of this petition it has been urged that the repair of the dilapidated wall did not involve disobedience of the court's order and that, at any rate, the offence Under Section 188 of the Indian Penal Code was not established. Section 188 of the Indian Penal Code provides as follows:
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 directions, shall, if such disobedience causes Or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persona 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 fine which may extend to one thousand rupees, or with both, The provisions of this Section show that it is not every disobedience of the court's order that comes within the mischief of Section 188 of the Indian Penal Code. In the first place, the order, in its turn-, must direct the person concerned to abstain from certain act, or to take certain order with respect to certain property in his possession or under hia management. Even if there is such a prohibitory order and there is, prirna facia, a disobedience of that order, the offence Under Section 188 .of the Indian. Penal Code is not complete, unless such disobedience causes or tends ,to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any persons lawfully employed, or the disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray.
It will appear from the order of the Magistrate attaching the wall Under Section 145 of the Code of Criminal Procedure that the order did not prevent the party from going upon the land. So far as the other properties in dispute were concerned, there was a definite order forbidding all interference with the properties. The learned District Magistrate proceeded, as will appear from his order, on the assumption that "both parties were abstained from going over the same." This is not the case here. Apart from that, on the facts of this case, the act of repair executed by the petitioners did not cawse or tend to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, nor this action caused or tended to cause danger to human life health or safety, or caused or tended to cause a riot or affray.
Even in the petition filed before the Sub-divisional Officer no such allegation was made. The effect of order of attachment was that the property was in the custody of the court and if any person went upon that property in an unauthorised way, some offence may have been committed, for instance, criminal trespass. In order, however, to constitute an offence Under Section 188 of the Indian Penal Code, the essential ingredients of this offence, as stated above, must be established. The learned District Magistrate has not indicated in his order how the offence Under Section 188 of the Ipdian Penal Code had been committed by the petitioners.
He does not seem to have directed his mind to the most essential element for constituting an offence under this Section, namely, the disobedience complained of must cause or tend to cause obstruction, annoyance or injury etc. as stated above. In the case of Parrneshwar Rai v. Emperor 3 Pat LT 268 : A.I.R. 1922 Pat 84, it has been kid down that( in giving direction for prosecution the court is bound to find out that, there was a prima facie case ' with respect to all the elements which the essential to constitute an offence Under Section 188 of the Indian Penal Code. It has been further pointed out that an order which does not set forth nil the elements of an offence covered by it is without jurisdiction. Same view has been expressed in the case of Bisi Bihari v. Emperor A.I.R. 1917 Pat 505.
In the case of Sujal Biswas v. Samirnrklin Man-dal 22 Cal WN 599 : A.I.R. 1919 Cal 996), by an order Under Section 144 of the Code of Criminal Procedure the petitioners were directed not to make any disturbance over a certain person's rights of a ferry and thereafter the petitioners being found plying another ferry at the site in question but not causing any disturbance were ordered to be prosecuted Under Section 188 of the Indian Penal Code, but their Lordships of the Calcutta High Court held that the order for prosecution was infructuous.
5. It would appear, therefore, that on the facts , disclosed in this case the offence Under Section 188 of the Indian Penal Code, was not made out and, therefore the prosecution under that Section was incompetent.
6. Learned Counsel for the opposite party referred to two decisions of this Court reported in Ambika Thakur v. Emperor A.I.R. 1939 Pat 611 and Rupan Singh v. Emperor A.I.R. 1944 Pat 213 and also to a decision reported in State v. Sm. Tugla (S) . None of these cases really touch the points which directly arise in the instant case. Those cases were decided on the orders that were passed therein and those orders are not certainly in the same terms as the order under conft-deration. It was also contended that it is not the proper place for questioning the competency of the prosecution Under Section 188 of the Indian Penal Code and that all these questions may be raised and decided when the prosecution is lodged against the petitioners and in support of this proposition reference was made to a decision of the Calcutta High Court in the case of Bachuram Kar v. The State .
Having regard to the decision of this Court reported in 3 Pat LT 268 : A.I.R. 1922 Pat 84 referred to above, I do not consider that this contention .is sound. When the facts appearing on the record do not establish an offence Under Section 188 of the Indian Penal Code. I see no point in launching a fruitless prosecution and thus harassing the petitioners unnecessarily. In my opinion, the order of the prosecution is illegal and cannot be maintained.
7. In the result, the application is allowed and the order of the District Magistrate is set aside.