Gauhati High Court
Jogeswar Patowari vs The State Of Assam And Anr on 28 April, 2020
Author: Ajai Lamba
Bench: Ajai Lamba
Page No.# 1/4
GAHC010185832018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 935/2018
1:JOGESWAR PATOWARI
S/O- LATE BHEBORAM PATOWARY, R/O- FATASIL AMBARI, SWAHID
KUMUD GOGOI PATH, P.S- FATASHIL AMBARI, DIST- KAMRUP(M), PIN-
781025
VERSUS
1:THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:DWIPEN RANGSHAL
S/O- LATE MUCHI RANGSHAL
R/O- PAMOHI MOINA KHURUNG
P.O AND P.S- GORCHUK
GUWAHATI- 35
DIST- KAMRUP(M)
PIN- 78103
Advocate for the Petitioner : MR. S K TALUKDAR
Advocate for the Respondent : PP, ASSAM
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA 28.04.2020:
1. The Court proceedings have been conducted by means of creating a Virtual Court with the help of technology, so as to maintain distance between the staff, Advocates and the Presiding Judge.
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2. This petition has been filed at the instance of Sri Jogeswar Patowari under Section 482 of Cr.P.C. in challenge to order dated 09.10.2017 passed by the Chief Judicial Magistrate, Kamrup (Metro) in GR Case No.5161/2016.
3. The facts appear to be that FIR (Annexure-1) dated 10.05.2016 was registered as Gorchuk P.S. Case No.245/2016, under Sections 447/188 IPC at the instance of respondent No.2-Sri Dwipen Rangshal with the accusation that on 10.05.2016, the petitioner along with some youths forcibly took possession of land under possession of the complainant/respondent No.2 to build house. A suit is going on in regard to the said plot of land. Status quo order is to be maintained by both the sides and construction of house has been stayed by virtue of an order passed by Civil Court.
4. Although respondent No.2 has been served, however none has appeared. An interim order is operating in the matter since 27.05.2019, and therefore the Court can wait no longer for appearance of the counsel. Also the issue raised is purely legal and facts are not required to be controverted.
5. The contention of learned counsel for the petitioner is two fold.
Firstly, it has been argued that charge sheet has been filed for committing offence under Section 188 IPC. It is the contention of learned counsel for the petitioner that Section 195 Cr.P.C. bars registration of FIR for an offence under Section 188 IPC. Only complaint would be maintainable.
On the second count, it has been argued that no offence under Section 188 IPC would be made out even if all the accusations in the FIR are considered to be correct.
6. So far as the first contention is concerned, it would be pertinent to extract provision of Section 188 IPC. Section 188 IPC reads as under:
"188. Disobedience to order duly promulgated by public servant.--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, Page No.# 3/4 shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person 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 trends 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."
7. Section 195 (1) (a) ( i) Cr.P.C. reads as under:
"195. 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 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 1[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate].
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX"
8. The provisions of Section 195 (1) (a) (i) Cr.P.C. above extracted make it clear that no Court can take cognizance of commission of offence under Section 188 IPC except on the complaint in writing of that Court or by such officer of that Court as the Court may authorise in writing on that behalf, or some other Court to which that Court is subordinate.
9. Evidently, the petitioner is being prosecuted in a police case registered on registration Page No.# 4/4 of an FIR, and not on the basis of a criminal complaint as envisaged under Section 195 Cr.P.C. (supra). The FIR and consequent proceedings, therefore, in the considered opinion of the Court are liable to be quashed.
10. So far as commission of offence under Section 188 IPC is concerned, as per the second contention of learned counsel for the petitioner, surely, an order issued by a Court of law on the civil side under Order 39, Rule 1 and 2 of the CPC would not be an order promulgated by a public servant.
Surely, the plaintiff or defendant, as the case may be, would be at liberty to file an application under Order 39, Rule 2A of CPC, if violation of an injunction order is committed by one of the parties. In peculiar facts and circumstances of the case noticed above, if the facts have been correctly stated, surely an application could have been made under Order 39, Rule 2A of CPC.
11. For the reasons given above, the petition is allowed.
12. The FIR dated 10.05.2016 and consequent proceedings are hereby quashed.
13. Let a copy of the order be provided under the signatures of the Court Master.
CHIEF JUSTICE Comparing Assistant