Patna High Court
Dr. Sunil Kumar vs The State Of Bihar Through The ... on 13 September, 2017
Author: Birendra Kumar
Bench: Birendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No. 786 of 2016
Arising out of P.S. Case No. - null Year - null Thana - null District - NALANDA (BIHARSHARIFF)
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Dr. Sunil Kumar, S/o Sri Bhagwat Prasad, resident of Mohalla - Soh Sarai, P.S. -
Soh Sarai, District Nalanda
.... .... Petitioner
Versus
1. The State of Bihar through the Superintendent of Police, Nalanda
2. Sunil Kumar Verma, Son of Sri Raghunath Prasad Srivastava, resident of South
Chitragupta Nagar, Kankarbagh, P.S. Kankarbagh, Patna - 800020, at present
working as Circle Officer, Bihar, P.S. Biharsharif, Nalanda
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Subodh Kumar Jha, Advocate
Mr. Pranav Kumar Jha, Advocate
For the Respondents : Mr. Iqbal Asif Niazi, A.C. to G.P. 5
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date: 13-09-2017
Heard learned counsels for the parties.
2. The petitioner has challenged, in this writ application, the
order dated 04.03.2016 passed by the learned Chief Judicial Magistrate,
Nalanda at Biharsharif in Bihar P.S. Case No. 488 of 2015
corresponding to G.R. No. 4107 of 2015 whereby cognizance has been
taken against the petitioner for offence under Section 188 of the Indian
Penal Code.
3. According to First Information Report, lodged on the basis
of written report of the Circle Officer, the petitioner was a candidate of
the referred political party for Legislative Assembly Election. On
13.10.2015, the petitioner had convened a meeting in the campus of
Shram Kalyan Maidan and in his application, for permission the
petitioner had disclosed that about five thousand people are likely to
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assemble. However, in fact, forty thousand people assembled thereat
which caused problem of law and order.
4. Learned counsel for the petitioner submits that a bare
perusal of the provisions, Section 188 of the Indian Penal Code would
reveal that ingredient of the offence alleged is not attracted in the facts
and circumstances of this case nor the informant is a competent person
to lodge FIR of the matter. Therefore, the cognizance order is barred
under Section 195(1)(a)(i) of the Code of Criminal Procedure.
Section 188 of the Indian Penal Code reads as follows:-
"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 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."
5. The FIR does not disclose that there was any order
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promulgated by the informant directing abstinence as referred in the
provisins above nor there is material to substantiate that disobedience
of such direction caused or tend to cause obstruction, annoyance or
injury or risk of obstruction, annoyance or injury to any person
lawfully employed. Further, there is no material disclosed in the FIR
that permission to assemblage of only five thousand people was
granted. If more people assembled, the petitioner was not responsible
for that. Moreover, vague statement is there in the FIR that forty
thousand people caused problem of law and order. There is no specific
mention that what problem was caused.
6. Now coming to the requirement of Section 195 of the
Code of Criminal Procedure which reads as follows:-
"195(1) No Court shall take cognizance of any offence
punishable under Sections 172 to 188 (both inclusive) of
the Indian Penal Code, except on the complaint in writing
of the public servant concerned or of some other public
servant to whom he is administratively subordinate."
7. In the present case, the criminal prosecution has not been
lodged by the public servant concerned who promulgated the
prohibitory order nor it has come on the record that the petitioner is
subordinate to that public servant. Therefore, initiation of police case is
itself bad in view of the requirement of Section 195 of the Cr.P.C.
8. The State-respondent in the counter affidavit have detailed
the act and omission committed by the petitioner leading to the FIR
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and has stated that after investigation, the case has been found true. The
counter affidavit further reveals that news had flashed that Ajay
Devgan, a film actor was to participate in the meeting dated
13.10.2015. In the circumstances, a large number of people had assembled.
9. Thus, it was the duty of the administration to foresee the chances of people coming in large number.
10. In the facts and circumstances of this case, no criminal liability can be raised against the petitioner. For the reasons aforesaid, in my view, the impugned order is not sustainable in law. Accordingly, the impugned order as well as the entire criminal prosecution against the petitioner is hereby quashed.
11. This writ application is allowed.
(Birendra Kumar, J) Kundan/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 14.09.2017
Transmission
Date 14.09.2017