M CHACKO Vs. STATE OF KERALA

JUDGEMENT

(1.) The Sub Inspector of Chathannoor Police Station registered a case as Crime No. 14 of 1982 against the petitioner and 16 others for offences under S.143, 144, 188, 427, 447 and 506 IPC. read with S.149 IPC. and after investigation, laid the final report and the court in due course took cognizance in regard to all the offences and issued process. It is to quash the proceedings that one of the accused has filed this petition under S.482 of the Code of Criminal Procedure (for short the 'Code').

(2.) Obviously, there was a dispute regarding an alleged pathway between the petitioner and others. It appears, the Revenue Divisional Officer (obviously the Executive Magistrate) Quilon issued an order on 6-2-1982 to maintain the pathway. The final report states that all the accused violated the order and destroyed the pathway. The final report proceeds to state that the accused trespassed into the land of Cw. 1, destroyed the fence arid the compound wall of Cw. 1, levelled that portion with a view to lay a pathway and thereby caused loss to Cw. 1. The other relevant allegations also find a place in the final report.

(3.) It is argued by the learned counsel for the petitioner that the offence under S.188 IPC. alleged in the final report and in regard to which cognizance has been taken by the Magistrate is one attracting the operation of S.195(1)(a)(i) of the Code and cognizance could not have been taken except on the complaint in writing by the Public Servant concerned, i.e. the Executive Magistrate, who issued the order. According to the learned counsel, since the taking of cognizance was illegal the entire proceedings deserve to be quashed. There is no doubt that the learned Magistrate committed an illegality in taking cognizance in regard to an offence under S.188 of the Code without a complaint from the executive magistrate and to that extent the proceedings cannot lie.