Jammu & Kashmir High Court
Mohd Azad Khan vs State Of J&K on 17 December, 2020
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(THROUGH VIRTUAL MODE)
CRM(M) 289/2019
CrlM 686/2019
Reserved on 11.12.2020
Pronounced on 17.12.2020
Mohd Azad Khan .....petitioner(s)
Through :- Mr.Sarfraz Shah Advocate.
V/s
State of J&K .....Respondent(s)
Through : Mr. Aseem Sawhney AAG.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 Through the medium of instant petition, the petitioner has challenged FIR No. 25/2019 for offence under Section 188 RPC registered with Police Station, Gursai, Tehsil Mendhar, District Poonch.
2. Briefly stated the case of the petitioner is that he is owner in possession of land measuring 36 kanals comprised in Khasra No.327 situated at village Naar, Tehsil Mendhar, District Poonch. According to the petitioner, he has also constructed a residential house over the said land. It is alleged that certain officers of the Forest Department are harassing him and trying to interfere in his peaceful possession over the land in question. The petitioner is stated to have filed a civil suit for permanent prohibitory injunction against the Forest Department before the Court of learned Sub Judge (Special Mobile Magistrate), Poonch (hereinafter referred to as the 'learned Sub Judge'). It is averred that on 20.07.2016, the learned Sub Judge after hearing the parties passed a temporary 2 CRM(M) 289/2019 injunction in favour of the petitioner directing the parties to maintain status quo on spot. It is contended that despite passing of aforesaid order, respondent No.1 has registered the impugned FIR against the petitioner for commission of offence under Section 188 RPC.
3 The petitioner has challenged the impugned FIR on the grounds that the dispute between the petitioner and the Forest Department is purely of civil nature, as such the impugned FIR is liable to quashed; that if, at all, the Forest Department had any grievance against the petitioner, they could have approached the Civil Court for initiating proceedings regarding violation of interim order; that, on the face of it, the allegations made in the FIR do not constitute any offence against the petitioner; that the criminal proceedings initiated by respondent No.1 against the petitioner are manifestly mala fide in nature.
4 Respondent No.1 has filed objections/status report. In its status report, it has been mentioned that the impugned FIR has been registered on the basis of a docket received from the office of Tehsildar, Mendhar wherein it was alleged that the petitioner had wrongly trespassed into the land bearing khasra No. 327 and committed violation of status quo order passed by the Court of learned Sub Judge, Poonch.
5 I have heard learned counsel for the parties and perused the record of the case.
6 The short question involved in this case is, whether the criminal proceedings can be initiated in a case where violation of interim order passed by a Civil Court under Order 39 Rule 1 and 2 of CPC has been complained. In 3 CRM(M) 289/2019 order to find an answer to this question, the provisions contained in Section 188 RPC are required to be noticed. Section 188 RPC reads thus:
"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 imprisonment for a term which may extend to one year and shall also be liable to fine 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 which shall not be less than three months but may extend to two years and shall also be liable to fine."
7 From a perusal of aforesaid provision, it is clear that before a person can be held guilty, following ingredients must be satisfied: (i) that there must be an order promulgated by a public servant; (ii) that a public servant must have been lawfully empowered to promulgate such order; (iii) that a person having knowledge of such order and directed by such order, (a) to abstain from a certain act, or (b) to take certain order with certain property in his possession or under his management, disobeys such direction; (iv) if such disobedience causes or tends to cause, (i) obstruction, annoyance or injury or risk of it to any person, lawfully employed, or (ii) danger to human life, health, or safety, (iii) a riot or affray.
8 From the above, it is clear that in order to bring an act within the mischief of Section 188 RPC, the order of which violation is complained must 4 CRM(M) 289/2019 have been promulgated by a public functionary for public purpose and not an order made in a suit of civil nature between two parties. Consequently, the said Section is not attracted in a case of disobedience of order of a civil Court. The operation of aforesaid Section is limited to promulgation by a public servant of orders relating to safety, health or convenience of the public. Thus, disobedience to an order issued under Order 39, Rule 1 and 2 of CPC cannot be made punishable under Section 188 of RPC. The proper remedy for disobedience to an order of injunction passed by a Civil Court is to have resort to the provisions of Order 39, Rule 2-A of CPC or to initiate contempt proceedings and not to lodge an FIR. I am supported in my aforesaid view by the judgment of Calcultta High Court in Nandalal Mitra vs State, AIR 1968 Cal 523.
9 The High Court of Kerala, in the case of Anilakumari vs State of Kerala (Crl.MC. No. 3950 of 2017, decided on 31.05.2019) , was confronted with a similar proposition. In the said case, the petitioner had been accused of having committed offences under Sections 188/447/427 IPC as he was alleged to have trespassed into the property in violation of the direction of a Civil Court to maintain status quo with regard to the said property. The Court, after discussing the ingredients of offence under Section 188 IPC observed as under:
"8. In the instant case, the allegation against the petitioner is that, in violation of the order of injunction passed against her by the Civil Court, she trespassed into the property involved and cut a valuable tree. One of the main ingredients of an offence under Section 188 I.P.C is absent here. There was no order promulgated by a public servant in existence and there was no disobedience of any such order.
5 CRM(M) 289/2019
9. Section 188 I.P.C does not contemplate an order passed by a civil court in a suit. The word "promulgated" in Section 188 I.P.C does not refer to an order passed by a public servant during the course of the proceedings between two parties in a suit. Section 188 I.P.C applies to orders made by public functionaries and for public purposes, and not to an order passed in a civil suit between party and party (See Quinn v. Keshab Chandra Mukherjee: AIR 1949 Cal 349, Bishan Dutt v. Emperor: AIR 1948 All 50, Kunjuraman Asari v. Chellappan Nair: 1952 KLT 547 and Joseph George v. State of Kerala : 2000 (3) KLT 275).
10. In Joseph George (supra), it has been held as follows:
"Section 188 I.P.C does not contemplate orders passed by civil or revenue courts in judicial proceedings. Any breach of such orders can be adequately dealt with under the provisions of the Code of Civil Procedure but cannot be said that they are orders promulgated within the meaning of Section 188 I.P.C., the disobedience of which would result into obstruction, annoyance or injury"
10 From the foregoing enunciation of law on the subject, it is clear that a criminal prosecution for an offence under Section 188 RPC cannot be initiated against a person, who is alleged to have violated an order of a civil Court. The remedy in this regard lies in approaching the Civil Court by initiation of contempt of Court proceedings.
11 Adverting to the facts of the instant case, the petitioner, by virtue of order dated 20.07.2016 passed by the learned Sub Judge, Poonch has been prima facie found to be in possession of land measuring 36 kanals under khasra No. 327 at village Nar, Tehsil Mendhar and the learned Sub Judge has, after hearing the parties, directed them to maintain status quo with regard to the suit property. If at all, any violation of the said order was made by the petitioner, it 6 CRM(M) 289/2019 was open to the complainant to approach the Civil Court for redressal of its grievances. The allegations made in the impugned FIR, on the face of it, do not constitute any criminal offence against the petitioner, much less an offence under Section 188 RPC. Therefore, the impugned FIR cannot stand in the eyes of law.
12 For the foregoing reasons, I find the instant case a fit one where this Court must exercise its powers under Section 482 Cr.PC to quash the impugned FIR and the proceedings initiated pursuant thereto. Continuing with these proceedings will amount to abuse of process of law.
13 Accordingly, the petition is allowed and the Impugned FIR as well as the proceedings initiated pursuant thereto are quashed.
The petition along with connected applications stands disposed of.
(Sanjay Dhar) Judge Jammu 17.12.2020 Sanjeev Whether order is speaking: Yes Whether order is reportable:Yes SANJEEV KUMAR UPPAL 2020.12.17 17:10 I attest to the accuracy and integrity of this document