SARJUG MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under section 482 of the code of criminal Procedure, 1973 (hereinafter to be referred as the code) is directed against the order dated 10/10/1984 passed by the chief Judicial Magistrate, Motihari, taking cognizance of the case against these petitioners under section 188 of the Indian Penal code.

(2.) The facts of the case relating to this application may be briefly stated. A proceeding under section 144 of the code was initiated against these petitioners on a petition filed by O.P. No.2 Ram chandra Prasad Gupta and notices were issued to the petitioners to show cause as to why the Rule be not made absolute against them. It is alleged that subsequent to the service of notices on the petitioners regarding initiation of the proceeding under section 144 of the Code against them, the petitioners constructed hut on the land under the proceeding. consequently a petition was filed before the Sub-divisional. Magistrate by O.P. No.2 for the alleged disobedience of the orders issued under section 144 of the code by these petitioners. The matter was referred to the Officer In charge, Town P.S. and on receipt of the police report, the petitioners were asked to show cause as to why they be not prosecuted for committing offence under section 188 of the Indian Penal Code for disobeying the order of the S.D.O. Sadar, Motihari. The petitioners showed cause but that was not accepted and thereafter a complaint (Annexure-1) was filed by the S.D.O. Sadar for prosecuting the petitioners for committing offence under section 188 of the Indian Penal Code, on the basis of which cognizance of the case was taken and summons were issued against these petitioners by the impugned order.

(3.) Sri Uma Kant Shukla, learned counsel appearing for the petitioners has submitted that on the facts mentioned in the complaint petition (Annexure-l), no offence under section 188 of the Indian Penal Code is made out inasmuch as the complaint petition does not mention that the alleged disobedience committed by the petitioners causes or tends to cause obstruction, annoyance, or injury, or risks of obstruction, annoyance or injury, to any person lawfully employed nor it has been stated that such disobedience, if any, committed by the petitioners causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, and thus, it does not full-fill the requirement laid down under section 188 of the Indian Penal Code. Learned Counsel for the petitioners in support of his contention has relied on a decision of this Court by a Single Judge in Ganga Sah and another v. The State of Bihar and another and a Division Bench decision of Calcutta High Court in Habibar Rahaman v. Jagannath Mandai and others.