Himachal Pradesh High Court
Rohit Mahajan & Others vs State Of H.P on 28 August, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.166 of 2017
Date of Decision: 28th August, 2017
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Rohit Mahajan & others ..... Petitioners.
Versus
State of H.P. .... Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners : Mr. Nimish Gupta, Advocate.
For the Respondent : Mr.M.L.Chauhan, Additional Advocate
General.
Sandeep Sharma, Judge (oral)
By way of instant petition filed under Section 482 of the Code of Criminal Procedure, a prayer has been made on behalf of the petitioners-accused (hereinafter referred to as the accused) for quashing of the FIR No. 259 of 2013, dated 22.11.2013, under Sections 188 and 147 of IPC registered at Police Station, Sadar District Chamba, H.P., summoning orders dated 18.12.2013 and further proceedings in Criminal Case No. 2097 of 2013, pending adjudication before the learned Chief Judicial Magistrate, Chamba, District Chamba, H.P.
2. Briefly stated facts as emerge from the record are that one Sh. Vipan Khanna filed a civil suit against one Shri Narender Kumar, in the court of learned Civil Judge( Senior Division), Chamba, for declaration and permanent prohibitory Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 30/08/2017 22:56:04 :::HCHP
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injunction. Learned trial Court passed ex-parte ad interim order against Sh. Narender Kumar, who being aggrieved with the aforesaid order, preferred an appeal in the court of learned District Judge, Chamba, however, fact remains that same was dismissed on 18.11.2013. It also emerge from the record that being aggrieved with rejection of his appeal, aforesaid Sh. Narender Kumar, approached this Court by way of CMPMO No.4216 of 2013. This Court, vide judgment dated 27.11.2013 (Annexure P-1) set-aside the order of ad interim injunction and directed the learned court below to decide the matter.
3. During the pendency of the proceedings before learned court below, Sh. Vipin Khanna moved an application before the SDM seeking police assistance for removal of debris and reconstruction of property under dispute. The Superintendent of Police, Chamba as per direction issued by the SDM, provided police assistance to Sh. Vipin Khanna. However, when police officers went on the spot on 22.11.2013 alongwith Sh. Vipin Khanna, who had also taken JCB for removing the debris from the disputed suit, they were allegedly obstructed by the petitioners. As per case of the prosecution, present petitioners despite having been informed with regard to the order passed by the authorities in terms of the order passed by the learned District Judge, Chamba, continued to obstruct the police officials on the site from implementing the Court ::: Downloaded on - 30/08/2017 22:56:04 :::HCHP ...3...
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order. In the aforesaid background, FIR as mentioned above came to be registered against the present petitioners. Police after completion of the investigation, presented the challan in the competent court of law i.e. Annexure P-2.
4. Learned trial Court taking cognizance of the offence allegedly committed by the petitioners, summoned the present petitioners by way summoning orders (Annexure P-3). Being aggrieved with the issuance of aforesaid summoning order, present petition came to be filed before this Court.
5. Mr. Nimish Gupta, learned counsel representing the petitioners, while inviting attention of this Court to the summoning orders having been issued by the learned trial court, contended that proceedings, if any, initiated against the petitioners pursuant to the FIR lodged under Section 188 and 147, of IPC are not maintainable before the court below as such same deserve to be quashed and set- aside. Learned counsel representing the petitioners further contended that proceedings, if any, under Section 188 of IPC could only be initiated on the written complaint, if any, of the public servant concerned, whose orders were allegedly disobeyed by the petitioner. Bare perusal of Section 195 Cr.P.C clearly suggest that no court shall take cognizance of any offences punishable under section 172 to 188 of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to ::: Downloaded on - 30/08/2017 22:56:04 :::HCHP ...4...
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whom he is administratively subordinate. Learned counsel further contended that since in the instant case allegation of prosecution is that the petitioners despite having been informed with regard to passing of order by the court, obstructed the police officials to carry out demolition on the disputed suit, action, if any, for disobedience of order could be taken only by authorities, whose order was allegedly disobeyed by the person concerned.
6. It would be profitable to reproduce Section 188 of IPC and Section 195 of Cr.P.C herein:-
"Section 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, 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 cause 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.
Explanation:- It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient ::: Downloaded on - 30/08/2017 22:56:04 :::HCHP ...5...
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that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
Section 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 Section 172 to 188(both inclusive) of the Indian Penal Code(45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Section 193 to 196 ( both inclusive),199, 200,205 to 2011 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or.
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or,
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub clause(ii).
[ 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.] ::: Downloaded on - 30/08/2017 22:56:04 :::HCHP ...6...
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(2) Where a complaint has been made by a public servant under clause(a) of sub-Section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause(b) of sub-Section (1), the term"
Court" mean, a Civil, Revenue or Criminal Court, rand includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this Section.
(4) For the purposes of clause(b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinary lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that:-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceedings in connection with which the offence is alleged to have been committed."
7. This Court, after having carefully perused Sections 188 of IPC and 195 of Cr.P.C., find some force in the contention of ::: Downloaded on - 30/08/2017 22:56:04 :::HCHP ...7...
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learned counsel for the petitioners, however, taking note of the fact that summoning orders were issued in the year, 2014, Court is not inclined to pass any order at this stage with regard to question of maintainability of the proceedings pending before the court below. However, as prayed by the learned counsel for the petitioner, this Court deems it fit to direct the court below to decide the question of maintainability at first instance before proceeding to decide the case on merits. Accordingly, the present petition is disposed of with a direction to the learned court below to decide the question of maintainability of present proceedings initiated against the petitioners at first instance. While deciding issue of maintainability Court below shall afford adequate opportunity of being heard to the petitioners. Registry of this Court is directed to apprise the learned court below with regard to passing of instant order and record, if any, be also sent forthwith, to enable the court below to proceed further in the matter. Petitioners undertake to appear before the court below on 5th September, 2017. Needless to say, petitioners are at liberty to lay challenge, if any, against the order passed by the authority, if still remain aggrieved. Ordered accordingly. Pending applications, if any also stand disposed of.
(Sandeep Sharma)
28th August, 2017 Judge
(shankar)
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