KALU MUNCHI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS is a petition by the petitioners who are four in number, praying that the proceedings started before the Magistrate under Sections 188, 447 and 425, Indian Penal Code on complaint filed by the Magistrate against them be quashed.

(2.) THE facts necessary are that on an application made by one Ganapatrai Dhanuka proceedings under Section 145, Criminal Procedure Code were started1 against the present petitioners. During the proceedings the Magistrate ordered the attachment of the property. There after Ganapatrai Dhanuka made an application before the Magistrate that in spite of the attachment order. The present petitioners have trespassed open the land and thus coated the order of attachment. The prayer was that they should be prosecuted under Sections 188, 447 and 426, Indian Penal Code. On that complaint the Magistrate filed a complaint under Sections 188, 447 and 426, Indian Penal Code against the present petitioners. The case was transferred to another Magistrate who issued processes against the present petitioners to appear and meet the charges under Sections 188, 447 and 426, Indian Penal Code, The petitioners went up in revision to the Sessions Judge against the order issuing process on the ground that the order was illegal. The Sessions Judge refused to refer the matter to this Court. Thereupon the present petition has been filed.

(3.) IN my opinion there appears to be force in this contention of the petitioners. It has been laid down In two decisions of this Court - (1) Dibakar Talukdar v. The State : AIR 1961 Gau 94 and (2) Atar Khan v. The State that Section 188, Indian Penal Code would not be attracted to a case where there Is no prohibitory order served on any of the parties to the proceedings under Section 145, Criminal Procedure Code. A more order of attachment does not attract Section 188, Indian Penal Code. Section 188 requires the violation of an order which is duly promulgated. In a ease whore there is no prohibitory order, it cannot be said that a mere order of attachment is an order duly promulgated under Section 188, Indian Penal Code. Thus Section 188 will not apply to a case of the violation of the mere order of attachment.