MAYADHAR ROUT Vs. THE STATE OF ORISSA AND ANR.
HIGH COURT OF ORISSA
The State Of Orissa And Anr.
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G.B. Patnaik, J. -
(1.) THESE 14 applications are directed against the order of cognizance taken by the learned Magistrate under Section 188, Indian Penal Code, on the basis of a police report alleging that the Petitioner in each of the cases had violated the order passed by the Sub -Divisional Magistrate under Section 144 of the Code of Criminal Procedure in Misc. Case No. 38 of 1986.
(2.) A proceeding under Section 144 of the Code of Criminal Procedure was initiated on 19 -5 -1986 against seven person, namely, Mayadhar Rout, Krishna Chandra Rout, Harihat Rout, Fakir Rout, Sridhar Rout, Ananda Charan Rout and Chandramani Rout. An application was filed on 21 -7 -1986 alleging that the persons who were restrained by the prohibitory order have violated the Court's order. That prayer was made for taking action against them since they have committed an offence under Section 188, Indian Penal Code. On consideration of the same, the Magistrate informed the -local police to submit a prosecution report and 011 the police submitting the same cognisance has been taken under Section 188. Indian Penal Code by the impugned order of the Magistrate dated 11 -8 -1986 in each of the cases. Mr. Kar appearing for the Petitioner in each of the applications contends that the prohibitory order having been passed against seven persons only there could not have been any violation, by other persons who are Petitioners in Criminal Misc. Case Nos. 633.639. 641. 642.643, 644 and 645 of 1986 who were not parties to the proceeding under Section 144 of the Code of Criminal Procedure. The learned Counsel further contends that in view of Section 195 (1) (a) of the Code of Criminal Procedure no complaint having been filed by the concerned public servant the order of cognisance is bad in law. I find sufficient force in both these contentions. A perusal of the records would indicate that the prohibitory at -der under Section 144 was only against seven persons as stated earlier and the Petitioners who have filed Criminal Misc. Case Nos. 633, 639, 641,642, 643, 644 and 645 of 1986 were not at all parties to the said proceeding under Section 144 of the Code of Criminal Procedure. In that view of the matter, the question of their violating the prohibitory order or committing any offence under Section 188, Indian Penal Code does not arise. The said contention of Mr. Kar is, therefore, well -founded and cognisance by the Magistrate as against them cannot be sustained.
(3.) EVEN as against others also, the order of cognisance is bad since there has been no complaint filed by the concerned public servant. There is an embargo on the power of the Magistrate to take cognisance under Section 195 (1) of the Code of Criminal Procedure in respect of an offence punishable under Section 188, Indian Penal Code, except on the complaint, in writing, of the public servant concerned. Admittedly the prohibitory order having been passed by the Magistrate the public servant concerned contemplated in Section 195 (1) (a) is the Magistrate whose order is alleged to have been violated. The section does not permit any delegation of authority by the public servant concerned. Since admittedly the Magistrate concerned has not filed the complaint in writing the order of cognisance must be held to be bad in law. In view of the peremptory nature of the language used in Section 195 (1) prohibiting a Court from taking cognisance of an offence under Section 188 Indian Penal Code except on the complaint in writing, of the public servant concerned and admittedly there being no such complaint in the present case, the impugned order of cognisance cannot be sustained in law and accordingly the said order of cognisance in each of the cases is hereby quashed.
These Criminal Miscellaneous Cases are accordingly allowed.;
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