STATE OF UTTAR PRADESH Vs. MATA BHIKH

JUDGEMENT

(1.) The short point involved for determination in this appeal is with regard to the interpretation of the expression 'the public servant concerned' appearing in Section 195 (l) (a) of the Code of Criminalprocedure (hereinafter referred to as 'the Code'). The brief facts of the case which led to this controversy are as follows :

(2.) It is the admitted case that on 11/04/1968 a proceeding was initiated before the Sub-Divisional Magistrate of Gyanpur under Section 145 of the Code in respect of a dispute over Plot No. 338 situated in Village Balapur Rohi and it ended in favour of Smt Ram Piari on whose behalf one Doodnath represented the matter as her agent. By an order dated 11/04/1968 one Ram Lakhan and his party, who were the respondents in the proceeding were restrained from interfering with the possession of Smt Ram Piari. Ram Lakhan died without leaving any issue. There were six respondents besides Ram Lakhan of whom two were his brothers and the remaining his nephews. It appears that there was a civil litigation between the parties, but we are not concerned in the present appeal about that civil dispute. It is stated that the respondents with the full knowledge that an order under Section 145 had been promulgated by a public servant lawfully empowered disobeyed that direction and disturbed the possession of Smt Ram Piari. Doodnath, who represented Smt Ram Piari in the proceeding under Section 145 of the Code before the S. D. M. , filed a petition on 10/03/1972 complaining that the respondents had violated his order, thereupon the Sub-Divisional Magistrate preferred the petition under Section 188 Indian Penal Code before the court of the Judicial Magistrate (1st Class) , Gyanpur (Varanasi) against the respondents which was registered as Criminal Case No. 94 of 1973. The trial court, both on the basis of the documentary and oral evidence, produced before it, found the respondents guilty of the offence punishable under Section 188 of the Indian Penal Code and convicted them thereunder and sentenced each of them to undergo three months' rigorous imprisonment which conviction was confirmed on appeal by the court of Additional Sessions Judge, Gyanpur in Criminal Appeal No. 21 of 1976 on its file.

(3.) The respondents on being dissatisfied by the judgment of the appellate court preferred Criminal Revision No. 614 of 1977 before the High court of Allahabad which, for the reasons, assigned in the impugned judgment, allowed the revision and set aside the conviction and sentence passed on the respondents mainly on the ground that the complaint in this case had been filed not by 'the public servant concerned', namely, the Magistrate who passed that order under Section 145 of the Code, but by a successor Magistrate and that any successor Magistrate cannot exercise jurisdiction under Section 195 (l) (a) and that the complaint, therefore, is not maintainable in law.