SHYAM NARAYAN ARYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner is an accused in C.R. case No. 5605 of 1990 (State v. Sushil Kumar Modi and others) pending in the Court of the Judicial Magistrate, IInd class, Patna, and he has invited the inherent powers of this Court under Section 482 of the Code of Criminal Procedure (hereinafter the 'Code') for quashing the order dated 7-11-90 taking cognizance of the offence under Sections 143 and 188 of the Indian Penal Code and his criminal prosecution based thereon.

(2.) Only each of the facts as are necessary for disposal of the application need be stated. One Bashishtha Narain Singh, A.S.I. of Police filed a written report before the officer-in-charge of Kotwali police station on 28-10-90 stating, inter alia, that he along with other members of the police force and the Magistrate were on law and order duty near the Patna Jn. Mahavir Temple. At about 12-30 p.m. several groups of people after violating the prohibitory order under Section 144 of the Code started going towards the city raising anti religious slogans. A number of persons were arrested whose names were given and enclosed with the written report. On the allegations made an offence under Section 188 IPC was said to have been committed. The police registered a case and after investigation submitted charge sheet under Sections 143 and 188 I.P.C. on the basis of which the impugned order taking cognizance was passed.

(3.) Mr. Ravi Shanker Prasad learned Counsel appearing for the petitioner pressed the application mainly on the ground that this case which was essentially for an offence under Section 188 IPC was an abuse of the process of the Court as no cognizance of the offence could have been taken on the F.I.R. lodged by the A.S.I. of police. Learned Counsel referred to the provisions of Section 195 of the Code which inter alia provides that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code or of any abetment of or attempt to commit such offence or of any criminal conspiracy to commit such offence except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It was contended that the order promulgating Section 144 of the Code for the disobedience of which the petitioner was sought to be prosecuted for an offence under Section 188 IPC was that of the Sub-divisional Magistrate and the complaint in terms of the provisions of Section 195 of the Code should have been filed in writing by the public servant concerned namely the S.D.M. or by some other public servant to whom he was administratively subordinate. It is no body's case that the A.S.I. was the public servant concerned within the meaning of Section 195 of the Code and was, therefore, competent to file a complaint.