RAM AJODHYA BAITHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application, the petitioners have prayed for quashing the entire criminal prosecution including the order taking cognizance dated 8.11.95 of an offence punishable under section 188 of the Indian Penal Code. It appears that a proceeding under section 144 of the Code of Criminal Procedure was initiated on 24.11.94 and notices to the parties including the petitioners were allegedly served whereby they were directed not to go upon the land in question. It appears that the Opp. party Ratan Baitha, filed an application on 29.11.94 alleging therein, inter alia, that the petitioners have violated the prohibitory order. The said application was forwarded to the Anchal Adhikari and the Anchal Adhikari also made enquiry and submitted enquiry report on the basis of which the Sub -divisional Magistrate issued show cause notice as to why they should not be prosecuted under section 188 of the Indian Penal Code. Pursuant thereto, the petitioner filed their show cause. The learned Sub -divisional Magistrate being not satisfied with the show cause filed a complaint petition in the court of the Sub -divisional Judicial Magistrate, Sikrahana at Motihari. The learned Sub -divisional Judicial Magistrate accordingly took cognizance of an offence punishable under section 188 of the Indian Penal Code as stated above.

(2.) THE learned counsel for the petitioner has challenged the order taking cognizance on the sole ground that albeit the Sub - divisional Magistrate has filed a petition of complaint but nowhere he has stated that such disobedience has caused or tends to cause any obstruction, annoyance or injury to any person lawfully employed nor it is stated that such disobedience caused or tends to cause damage to human life. In absence of such statement in the complaint petition which are essential ingredients for proceeding in terms of section 188 of the Indian Penal Code. In the light of the submission of the learned counsel, I have perused the complaint petition where from it appears that no such averment has been made and accordingly I am of the view that the submission of the learned counsel is well founded. I am supported by unreported Division Bench judgment of this court in the case of Gyasuddin Mian and others vs. State of Bihar and ors. vide Cr. W.J.C. No. 738 of 1994 disposed of on 24.10.94. Accordingly, the order taking cognizance dated 8.11.95 of the alleged officer against the petitioners is quashed. Consequently, this application is allowed.