SRI M.D. BALKRISHANA Vs. THE STATE

JUDGEMENT

(1.) THIS is a petition in revision to quash a proceeding under Section 18, Indian Penal Code, in G.R. case No. 65 of 1959, pending in the Court of the Sub -Divisional Magistrate, Sadar Sambalpur.

(2.) ON the 28th January 1954, the then Sub -Divisional Magistrate, Sadar, Sambalpur, promulgated an order under Section 144, Code of Criminal Procedure, prohibiting public meeting and processions of five or more persons at several places mentioned in that order including Hirakud, Burla and Jamada. That order was extended upto the 27th June 1955 by Home Department (Special Section) Notification No. 715 -C dated the 27th March 1954; and by another Home Department Notification No. 2150 -C dated the 22nd June 1954 it was extended for an indefinite period.

(3.) MR . B.M. Patnaik's main contention, in support of this revision petition, is that notwithstanding the fact that the offence under Section 188, Indian Penal Code was made cognizable, the mandatory provisions of Section 195(1), Code of Criminal Procedure, ought to have been complied with and that cognizance of that offence should have been taken only on a complaint in writing made by the Sub -Divisional Magistrate whose order was disobeyed or by the State Government who was the authority superior to the Sub -Divisional Magistrate. In my opinion, this contention is well founded. A Division Bench of this Court in State of Orissa v. Oriya Sama : A.I.R. 1951 Ori 138 examined the question as to whether the ban on taking cognizance, imposed by Section 195(1), Code of Criminal Procedure was impliedly taken away when the offence under Section 188, Indian Penal Code was made cognizable by an appropriate notification issued by the State Government. That Bench held that notwithstanding the issue of such a notification the provision of Section 195(1), Code of Criminal Procedure should be complied with and in the absence of a complaint in writing by the Magistrate concerned the entire proceeding was invalid. The instant case is identical with that case, on facts, and with respect I would follow that aforesaid decision and hold that the entire proceeding before the Magistrate commencing from the taking of cognizance is invalid and should be quashed.