Decided on January 15,1979



D.B.LAL,J, - - (1.) Before the Sub -Divisional Magistrate, Dalhousie, two cases instituted on police report for conviction of the accused Hoshiar Chand under sections 447 and 188 of the L P. Code. It was alleged against him that he had taken unlawful possession of two different strips of land belonging to Government from which land he was obviously ejected under the orders of the Revenue authorities. Hoshiar Chand was alleged to have subsequently trespassed upon the said land, and since he disobeyed an order duly promulgated by a public servant he committed an offence under section 168 of the I. P. Code. The other offence imputed against him was under section 447 of the I. P. Code. When the two prosecution cases were being tried before the Sub -Divisional Magistrate, a plea was taken that the offence under section 188, which was decidedly interlinked with the offence under section 447, could not be taken congizance of, except on a complaint in writing of the public servant concerned. The learned Sub -Divisional Magistrate did not take notice of that plea and proceeded to convict Hoshiar Chand, Thereafter a revisionwas filed before the Additional Sessions Judge, Kangra, and he took up that point and referred the two cases to the High Court under section 438 of the then Criminal Procedure Cede, According to the learned Sessions Judge, a complaint in writing by the concerned public servant was a condition precedent before cognizance of the offences could betaken. He, therefore, indirectly solicited for quashing of the conviction.
(2.) A learned Single Judge of this Court, who heard the two references, referred to several decisions and noticing a conflict between the parties, thought it proper to refer the question to a larger Bench. That is how these two criminal references are placed before us for our considered view in the matter.
(3.) The facts governing these cases are simple and rather admitted. It is accepted on ail hands, that the Revenue authorities issued specific orders that Hoshiar Chand would not take possession over these strips of .land. In disobedience of these orders of the Revenue authorities, Hoshiar Chand trespassed upon these strips of land. Therefore, the offence committed by him clearly fell under section 188 of the I. P. C. It could not be stated that the other offence under section 447 of the I. P. C, was not so much interwoven in the offence under section 188 of the I. P. C. so that it could be stated that the offence under section 447 could be considered independent of the offence under section 188. It is, therefore, evident that if the offence under section 188 could not be taken cognizance of without a proper complaint, the consequence would be that the other offence under section 447 would not independently stand for being taken cognizance of. That being the position, we have to concentrate, if the offence imputed against Hoshiar Chand cannot at all be taken cognizance of without a complaint in writing by the public servant concerned.;

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