UMANATH PRASAD Vs. DHIRENDRA KUMAR SINGH

JUDGEMENT

(1.) This application in revision is directed against the order of the District Magistrate of Saran dated 17-10-1958 by which he directed that a complaint be filed against the petitioners for their prosecution under Section 188 of the Indian Penal Code.

(2.) The facts are short and simple. In a proceeding under Section 145 of the Code of Criminal Procedure between the parties the following order was passed by the Magistrate on the 18th July, 1953: "These two latrines in the ground floor of holding No. 379 are by all means in possession of the first party and I therefore forbid all disturbances of possession against the first party so far these two ground floor latrines in holding No. 3/9 are concerned unless and until he (the first parties) be evicted in due course of law from a Civil Court. As regards the wall there is balanced evidence to the effect that it is partition wall between the two parties. There is also evidence that though the wall belongs to the 1st party's holding the 2nd party has got his chapper and kores resting on this wall. This wall cannot therefore be held to be exclusively in possession of either party and consequently the door which is in the wall cannot be sealed up by the first party. Under the circumstances this wall including the door in question is attached under Section 146 Cr. P. C. until the question of right and possession over the wall is determined by a court of competent civil jurisdiction.''

(3.) On 29-12-1957, that is, nearly four years after the said order, the petitioners repaired the wall which had been attached under Section 146 of the Code of Criminal Procedure. It is alleged, and there is no dispute, that the wall was in a dilapidated condition and there was a marriage of a girl in his family and on account of this marriage ceremony the wall was repaired. On 16-1-1958 Dhirendra Kumar opposite party presented an application before the Sub-divisional Officer, Chapra, for prosecution of the petitioners under Section 188 of the Indian Penal Code on the ground of disobedience of the order of the court dated 18-7-1953, in that the repair had been done without the permission of the court. By his order dated 19-5-1958 the Sub-divisional Officer rejected the petition holding that the petitioner before him had been inspired by enmity and that the action of these petitioners did not amount to a violation of the attachment order. The opposite party took this matter in revision to the District Magistrate. Saran. He was, however, of the opinion that there was disobedience of the order of the court and the petitioners were liable to be prosecuted for the offence under Section 188 of the Indian Penal Code and accordingly he ordered a complaint to be lodged. It is against that order that the petitioners have come up in revision to this Court.