SURYA NARAIN TIWARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing the order dated 20.11.2004 passed by the learned Chief Judicial Magistrate, Motihari in Official Complaint Case No. 944 of 2004 by which he has taken cognizance under Section 188 of the Indian Penal Code against the petitioners.

(2.) Heard learned counsel for the petitioners and the learned A.P.P. appearing for the State.

(3.) Learned counsel for the petitioners submitted that the complaint was filed by the Sub-Divisional Magistrate, Arearej for disobeying the order passed by him in a proceeding under Section 144 of the Code of Criminal Procedure in Case No. 243-M of 2004. He further submitted that one of the ingredients of the offence under Section 188, IPC is that the disobedience alleged has caused or tends to cause any obstruction, annoyance or injury to any person lawfully employed or that such disobedience caused or tends to cause damage to human life but the order dated 5.10.2004 passed by the Sub-divisional Magistrate on the basis of which the complaint was filed does not show that he was satisfied that the alleged disobedience caused or tends to cause any obstruction, annoyance or injury to any person lawfully employed or that such disobedience caused or tends to cause damage to human life. Therefore, the learned Chief Judicial Magistrate was not justified in taking cognizance under Section 188, IPC against the petitioners and it would be an abuse of the process of the Court to proceed with the case. In support of his submission he has relied on a decision of our own High Court in the case of Ram Ayodhya Baitha and others V/s. State of Bihar and another., 2000 3 PLJR 447. In the case of Ram Ayodhya Baitha cognizance was taken under Section 188. IPC for violating the prohibitory order passed under Section 144, Cr PC. Learned counsel for the petitioner of that case challenged the order on the ground that in the complaint petition the Sub-divisional Magistrate has no where stated that such disobedience has caused or tends to cause any obstruction, annoyance or injury to any person lawfully employed nor he has stated that such disobedience has caused or tends to cause damage to human life and in absence of such statements in the complaint petition which are essential ingredients for the offence under Section 188, IPC the cognizance under that section was bad in law. This Court considering the submission of the learned counsel for the petitioner and in view of an unreported Division Bench judgment of this Court in the case of Ghyasuddin Mian and others V/s. State of Bihar and others, Cr WJC No. 738 of 1994, held that the essential ingredients for proceeding in terms of Section 188, IPC is not made out. Accordingly, the Court quashed the order taking cognizance.