Gauhati High Court
Jogeswar Patowari vs The State Of Assam And Anr on 30 January, 2020
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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
Counsel for the petitioner : None
Counsel for the respondents : Mr. M. Phukan,
Addl. Public Prosecutor, Assam for
Respondent No.1.
Ms. Lidiya Islam for Respondent No.2.
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA
30-01-2020
1. Sri Jogeswar Patowari has preferred this petition for quashing order dated
9.10.2017 passed by Chief Judicial Magistrate, Kamrup (Metro) in G.R. Case
No.5161/2016 vide which cognizance of offence under Section 188 IPC has been
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taken.
A prayer for quashing of the consequent proceeding has also been made.
2. It appears that Sri Dwipen Rangshal (Respondent No.2) initiated criminal
proceedings vide FIR dated 10.05.2016 (Annexure-1) on the premise that although
a Civil Court had passed an order of status-quo restraining either of the parties to
construct house, however, the petitioner has forcibly encroached and had started
constructing a house.
3. It further appears that the crime was registered vide Gorchuk P.S. Case
No.245/2016 under Sections 447 and 188 IPC. On registration of the case, charge
sheet was filed. Relevant part of the charge-sheet dated 26.3.2017 has been
appended as Annexure-2.
The charge-sheet was forwarded for commission of offence under Section
188 IPC only. Order dated 9.10.2017 records that charge-sheet has been put-up
under Section 188 IPC, cognizance of offence is taken under the said penal
provision.
4. I have gone through the provisions of Section 188 IPC in context of which
proceedings can be initiated under Section 195(1)(a)(i) of Cr.P.C. The relevant
provision reads as under :-
"195. Prosecution for contempt of lawful authority of public servant, for
offences against public justice and for offences relating to documents given in
evidence - (1) No Court shall take cognizance -
(a)(i)(a) of any offence punishable under Section 172 to 188 (both inclusive) of
the Indian Penal Code, or
.....
Except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate."
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5. Prima facie, the procedure as given out under Section 195 Cr.P.C. indicates that the complaint could have been made only at the instance of the Court of whose order has been violated; or by such officer of that Court as the Court may authorize in writing in that behalf or some other Court to which that Court is subordinate.
From the case in hand, it further appears that the respondent-complainant made a report to the concerned police station which was registered as FIR.
After investigation, charge-sheet was submitted only for committing offence under Section 188 IPC.
The Magistrate has taken cognizance of the offence.
6. In that view of the fact that the learned counsel for the petitioner is not available, list on 03.02.2020 (post lunch) high-up on the list. No further adjournment will be given to either of the sides.
CHIEF JUSTICE Comparing Assistant