RAM SURAT SINGH Vs. STATE AND OTHERS

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Varanasi in Cr. Revision No. 13 of 1966. A learned single Judge of this Court has referred it to a Division Bench as the question of law was rather important. The facts of the case, which are relevant for purposes of this case, are as follows : On the report of one Ram Surat Singh, the revisionist, proceedings which gave rise to this revision, started. Ram Surat Singh was appointed Supurdar in a case Under Section 145 Code of Criminal Procedure by an order of the Sub -Divisional Magistrate, Varanasi. While the property was under attachment Mangal Singh and his three sons Brahmadeo Singh, Rajendra Singh and Amarnath alias Surendra Singh interfered with the possession of the Supurdar Ram Surat Singh. Hence Ram Surat Singh made a report to the police charging the Applicants Under Section 447 IPC for criminal trespass. The police after investigation filed the challan in court. The accused persons took the defence that the case did not fall Under Section 447 IPC but it amounted to an offence Under Section 188 IPC. The prosecution could not, therefore, proceed unless a complaint had been made Under Section 195 Code of Criminal Procedure by the court ' before which the proceedings Under Section 145 Code of Criminal Procedure were pending. This contention appealed to the learned Magistrate and since no proper complaint Under Section 195 Code of Criminal Procedure had been made, he discharged the Applicants. A revision was filed against that order and the learned Sessions Judge was of the opinion that the case did not fall Under Section 188 IPC and the order of the Magistrate was, therefore, liable to beset aside. The reference which was heard by the learned single Judge is before us for disposal.

(2.) THE sole point for consideration is whether an offence Under Section 188 IPC has been committed in the present case. If it has not been so committed, there would be no question of a complaint being made by the court Under Section 195 Code of Criminal Procedure and therefore, there would be no defect in proceeding with the prosecution Under Section 447 IPC. We may note here that the Magistrate has not yet recorded evidence or gone into the matter on facts.

(3.) LEARNED Counsel appearing for the Supurdar Ram Surat Singh relied upon the case of Chattar Singh v. State, 1956 AWR 393. The learned single Judge of this Court has taken the view that no order as contemplated by Section 188 IPC is passed by merely attaching the property. We respectfully agree with this view. A contrary view appears to have been taken by a learned single Judge of this Court in Ram Samujh and Ors. v. State, 1967 AWR 151. We are unable to agree with the view taken in this case. The earlier case Chattar Singh was not cited.