SASHINDRA LASKAR Vs. AKADDAS ALI
HIGH COURT OF GAUHATI
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(1.) This application purported to be in revision is directed against an order passed by the Sadar Sub-Divisional Magistrate, First Class, Silcbar, on an application made to him for lodging a complaint under Section 188, Indian Penal Code to a proper Court.
(2.) The facts were something like these. There wag apparently a proceeding under Section 145, Criminal P. C., in which certain land was attached. During the pendency of attachment, there was a complaint that the opposite party trespassed into the land which has given rise to the petition before the learned Sub-Divisional Magistrate for taking action for disobedience of the order of attachment. This petition was sent to the police for report which was in favour of the petitioner's allegations. The learned Sub-divisional Magistrate finally passed the following brief order:
Party may take step as they deem fit.
K Bora. 1.12
The petitioner took the matter up to the learned Sessions Judge who also refused to interfere with the order holding " ... I do not think there is even a ghost of a chance of success if a prosecution is launched."
(3.) This was an application under Section 195 (1) (a) of the Code of Criminal Procedure to the Sub-Divisional Magistrate, before whom the Criminal Proceeding under Section 145 was pending. Section 195 (1) (a) reads as follows ;
195. (1) No Court shall take cognizance-
(a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.
When the prayer was made to the Sub-Divisional Magistrate under Section 195 (1) (a) for lodging a complaint under Section 188, Indian Penal Code, it was not an application to a Court as is commonly understood. It was an application to a public servant and if the public servant chooses not to complain that cannot be a judicial order attracting the revisional jurisdiction of this Court or even its superintendence under Article 227 of the Constitution. The provisions of Section 195 (1) (a) is 'only to be contrasted with what follows under the provisions of Section 195 (1) (a), where it is clearly laid down that certain offences which are alleged to have been committed in, or in relation to any proceeding in any Court, no prosecution shall take place except on the complaint in writing of such Court or some other Court to which such Court is subordinate. The expression 'Court' is inserted in clear contrast with the words 'public servant' in Section 195 (1) (a). The impugned order, which is the original order of the Sub-Divisional Magistrate, is clearly an administrative order within the purview of Section 195 (1) (a).;
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