AZIZURRAHMAN Vs. STATE OF U P

JUDGEMENT

(1.) From the first information report lodged on November 25, 1984, giving rise to this proceeding under section 482, Cr. P.C. it would appear that, according to the informant, there was injunction/direction issued in Original Suit No. 332 of 1982 (Court of Munsif City, Kanpur) and Writ Petition No. 384 Of 1983 by this Court whereby the accused were restrained from demolishing or raising construction over certain land. The allegation further is that despite this injunction/direction, the accused have proceeded to demolish/raise construction and that in this process they have also committed assault with a knife and threatened the informant. Investigation was made and subsequent to the submission of the charge sheet the accused have been summoned by the Magistrate for offence under sections 324/337/188, Penal Code. Aggrieved, the accused have approached this Court.

(2.) In so far as the offence alleged under section 188, Penal Code is concerned, it appears prima facie that the same may not be attracted to the facts herein. Section 188, Penal Code pertains to disobedience of order promulgated by a public servant. The term public servantT is defined in section 21, Penal Code as including no doubt a Judge, but then the court as such is not to be placed in the category of being a public servant. In section 2(b), Contempt of Courts Act, 1971, civil contempt is defined as meaning wilful disobedience to any judgment, decree, direction, order, with or other process of a court or wilful breach of an undertaking given to a court. In case there is any such breach in a particular case, section 12 of this Act may be attracted wherein punishment is provided for contempt of court. The punishment in the event of breach of injunction as such referred to herein is, therefore, laid down in the Contempt of Courts Act in this provision and section 188, Penal Code is out of picture. A reference for the applicant to the provision contained in Order 39, rule 2-A, Civil Procedure Code is also besides the point because that provision does not provide for or lay down punishment to be inflicted upon the person guilty of disobedience to the order but only ensures compliance thereto by putting the person, if necessary, in civil prison and directing attachment of his property for a specific period. Section 188, Penal Code is, therefore, in my opinion, excluded from its application in such a case not on account of what is contained in Order 39, rule 2-A, but because of the provisions made in the Contempt of Courts Act.

(3.) As regards the summoning of the accused applicant for offence under sections 324/337, I.P.C. there may not be said to be a prima facie ground existing to quash the order regard being had to the averments made in the first information report and the investigation following thereto. The correctness or otherwise of these averments cannot be adjudicated upon by this Court at this stage. All this is a matter of evidence and the same is yet to be adduced and considered by the court competent in this behalf.