PUMA CHANDRA PATRO Vs. MRUTYUNJAYA TRIPATHY

JUDGEMENT

(1.) The petitioners have challenged the order passed by the learned Sub- Divisional Judicial Magistrate Bhanjanagar, taking cognizance of an offence under Section 188, Indian Penal Code against them on the prosecution report filed by opposite party No.1 the Executive Magistrate, Bhanjanagar.

(2.) A few facts may be stated. On the petition of Kasinath Patra, registered as Misc. Case No. 124 of 1986 in the court of the Executive Magistrate, Bhanjanagar, a preliminary order Section 144 of the Criminal Procedure Code (for short Code) was passed against opposite party Nos. 2, 3, and 4 in respect of the disputed house situate in village Pailipada Kanta Sahi within Gangapur Police Station on 2-7-86. In the preliminary order, a specific direction was given to the aforesaid opposite parties restraining them from entering into the said house. While the case was pending, Kasinath Patra filed a petition on 25-7-1986 alleging therein that opposite party Nos. 2 to 4 along with the petitioners violated the restraint order referred to above and forcibly entered the disputed house on 24-7-1986. On this petition, the Executive Magistrate passed order on the same day directing issue of notice to opposite party Nos. 2 to 4 to show cause against the allegation of violation of the order under Section 144 of the Code. It is to be noted here that he did not issue notice to the petitioners, although it was alleged by Kasinath Patra that they were also parties to the violation of the restraint order. Subsequently, an enquiry was conducted and by order dated 16-8-86. The Executive Magistrate directed filing of a complaint petition against the petitioners, as well as opposite party Nos. 2 to 4, under Section 188 of the Indian Penal Code in the court of the learned Sub-Divisional Judicial Magistrate, Bhanjanagar. Pursuant to the order, prosecution report was filed and cognizance of the offence under Section 188 of the Indian Penal Code was taken against the petitioners, as well as opposite party Nos. 2 to 4, by order dated 16-2-87. Subsequently, another petition was filed in the same court for recall of the order of cognizance. By order dated 15-9-87 the learned Sub-Divisional Judicial Magistrate refused to recall the earlier order.

(3.) The only point that falls for consideration in the arguments advanced by Mr. Nanda, learned Counsel appearing for the petitioners, and Mr. Mohanty, learned Additional Government Advocate, is whether the learned court below was justified, according to law. In taking cognizance of an offence under Section 188 of the Indian Penal Code against the petitioners who were not parties to the proceeding under Section 144 of the Code and hence there was no restraint order so far as they were concerned, and further whether it was correct to proceed against them without service of notice on them for participating in the enquiry prior to filing of the prosecution report.