Patna High Court · 2010
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.2613 of 2011 ====================================================== 1. Dr. Shakeel Ahmad S/O Shakur Ahmad, R/o village - Umgaon Kothi, Police Station - Harlakhi, District - Madhubani 1. The State Of Bihar and Ors. Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Atif Imam and Mr. Saba Ashfaque, Advs. For the State : Mr. Dilip Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 9 15-05-2013 Heard learned counsel for the petitioner and the State. In this case, the petitioner is challenging the order dated 7th May 2010 passed in G.R. No. 795 of 2009, Madhubani Town P.S. Case No. 90 of 2009 whereby and whereunder the court below has taken cognizance for offence under section 188 of the Indian Penal Code. Madhubani Town P.S. Case No. 90 of 2009 was instituted u/s 188 of the Indian Penal Code at the instance of the Block Development Officer, Madhubani Sadar making an allegation that on 2nd April 2010 at about 12.30 the petitioner along with 1100 supporters went to the office of Collector, Madhubani for the purpose of filing the nomination. The supporters were outside the gate, after nomination, supporters started raising slogan, violated order of promulgation issued u/s
Legal Reasoning
Patna High Court Cr.Misc. No.2613 of 2011 (9) dt.15-05-2013 2/6 144 Cr.P.C. by the competent authority. The order u/s 144 Cr.P.C. and Model Code of Conduct was enforced in view of ensuing election thereby violated the Code of Conduct issued by the Election Commission and order issued u/s 144 Cr. P.C. The police after investigation submitted charge sheet. The Sub-Divisional Judicial Magistrate, Madhubani on the basis of materials available in case diary took cognizance vide order dated 7th May 2010 and issued the summons. The petitioner challenged the order of cognizance stating that there is no allegation against the petitioner, he had violated the conditions imposed u/s 144 Cr.P.C. which may land him in commission of offence u/s 188 of the Indian Penal Code so much so, he has further submitted that learned Magistrate while lodging the FIR has not recorded his satisfaction, about availability of all ingredients constituting the offence u/s 188 of the Indian Penal Code. He has further submitted that essential ingredients for constituting the offence u/s 188 of the Indian Penal Code is missing and the complaint petition filed against him and, as such, the order of cognizance on the basis of such FIR is completely illegal and liable to be set aside. In support of his contention, he has relied on judgment reported in 2003 (4) PLJR 646 (Gajendra Ojha v. State Patna High Court Cr.Misc. No.2613 of 2011 (9) dt.15-05-2013 3/6 of Bihar). In that case, the Court has found that the necessary ingredients for constituting the offence u/s 188 of the Indian Penal Code, was missing and in result quashed the order of cognizance. Counsel for the petitioner has further relied on the judgment/order passed in Cr. Misc. No. 21611/2012 and Cr. Misc. No. 16357 of 2012 and submitted that in the similar facts and circumstances, this Court has quashed the proceeding, as the essential ingredients were not found there. The counsel for the State seriously objected the argument of the petitioner and submitted that there is no dispute that on that day of alleged offence, there was a promulgation of 144 Cr.P.C. by the competent authority so much so that the petitioner along with the said supporters had gone there for filing the nomination and they have raised slogan, thereby violated the Model Code of Conduct as well as the direction issued u/s 144 Cr. P.C. relating to maintenance of the peace and prohibition of assembly of more than five persons at one place. Having considered the rival contention of the parties, in this case, allegation has been made against the petitioner, he had gone along with more than 1100 supporters to the office of the Collector for filing the nomination. There is no dispute that there was an enforcement of 144 Cr. P.C. order at the premises of Patna High Court Cr.Misc. No.2613 of 2011 (9) dt.15-05-2013 4/6 the Collectorate. Submission has been advanced, all essential ingredients are not there in the statements made in FIR. This Court in Gajendra Ojha case (supra) has considered, essential ingredients for constituting offence u/s 188 IPC in the following terms:- “As the section stands, it would require four ingredients to bring the offence under its purview. They are : (1) that there must be an order promulgated by a public servant. (2) that the public servant must be lawfully empowered to promulgate it, (3) that a person having knowledge of such an order or directed by such an order to abstain from a certain act, etc. has disobeyed the direction, and (4) that such disobedience causes or tends to cause obstruction, annoyance or injury to any person lawfully employed, etc. As the order dated the 25th February 1970, under which he has arrived at a conclusion against these petitioners in respect of this allegation stands, there is nothing to show existence of the fourth ingredient in the act complained against. Further, in the complaint petition filed by him as well in this behalf, there is no mention of it, and, all that has been stated therein is that the Patna High Court Cr.Misc. No.2613 of 2011 (9) dt.15-05-2013 5/6 petitioners had harvested the standing crops over the disputed land during the existence of the Magistrate’s restrained order in the matter and they have thereby disobeyed the Court’s order willfully and made themselves liable to prosecution under Section 188 of the Indian Penal Code. Further in case of Sarjug Mahto and ors. vs. The State of Bihar and another reported in 1992 (1) PLJR 128 it has been observed as follows: “xxx it is apparent from the definition of the section that disobedience alleged to have been committed by the petitioners unless causes or tends to cause obstruction, annoyance, or injury, or risks of obstruction, annoyance of injury, to any persons lawfully employed or causes or tends to cause danger to human life, riot or affray, the requirement of the section are not fulfilled.” As per the judgment it is required that there must be issuance of promulgation u/s 144 Cr.P.C. by a public servant, that the public servant must be lawfully empowered to promulgate, the person having knowledge of such an order or directed by such an order to abstain from a certain act, etc. has disobeyed the direction Patna High Court Cr.Misc. No.2613 of 2011 (9) dt.15-05-2013 6/6 and that such disobedience causes or tends to cause obstruction, annoyance or injury to any person lawfully employed. The FIR does not disclose that the Magistrate was satisfied with regard to the existence of all ingredients constituting the offence under section 188 of the Indian Penal Code, as merely the petitioner had gone there for nomination along with the said supporters will not ipso facto bring him within the four corners of offence u/s 188 of the Indian Penal Code as last essential ingredient mentioned above is missing in the body of complaint. From the body of F.I.R. or the order of cognizance does not disclose all ingredients. Accordingly, the order of cognizance dated 7th May 2010 passed in G.R. No. 795 of 2009, Madhubani Town P.S. Case No. 90 of 2009 is quashed and this petition is allowed. Mahesh/- (Shivaji Pandey, J)