V.N.Varma - (1.) THIS revision is directed against an order dated 25-4- 1977 passed by the Sub-Divisional Magistrate, Jaunpur authorising his A. P. P. to file a complaint against the applicants under Section 188 IPC.
(2.) IT appears that a case u/Sec. 145 CrPC was fought between the applicants and O. Ps. Nos. 2 and 3. In that case O. P. Nos. 2 and 3 were found to be in possession of the disputed property on the day the preliminary order was drawn and within two months prior to that. The learned Magistrate thereupon passed an order asking the applicants not to disturb the possession of O. Ps. No. 2 and 3 over the disputed property till they were evicted therefrom in due course of law. Despite this order the applicants disturbed the possession of O. Ps. Nos. 2 and 3 over the disputed property, whereupon, O. Ps. Nos. 2 and 3 filed an application before the Magistrate to take penal action against the applicants. The Magistrate on the basis of the facts placed before him felt satisfied that the applicants had committed an offence under Section 188 IPC. Accordingly, he instructed his A. P. P to file a complaint against the applicants for committing an offence under Section 188 IPC. The applicants felt aggrieved with this order of the learned Magistrate and came up in revision to this Court. The learned counsel for the applicants did not put in appearance in my court to press this revision. The learned counsel for the opposite parties Nos. 2 and 3 were, however, present. They assisted me in the disposal of this case. The facts of the case show that the applicants had tried to disturb the possession of opposite parties Nos. 2 and 3 over the disputed land despite the order passed by the Magistrate that they will not interfere with the possession of the applicants over it till they were evicted therefrom in due course of law. The applicants were, therefore, prima facie guilty of an offence under Section 188 IPC. The learned Magistrate was, therefore, fully justified in making an order to file a complaint against the applicants under Section 188 IPC. It was, however, not proper on his part to have asked his A. P. P. to file the complaint in a competent court of law against the applicants. Section 195 CrPC provides that no Court shall take cognizance of an offence punishable under Section 188 except on the complaint in writing of the public servant concerned or of some other public servants to whom he is administratively subordinate. Therefore, under law either the Magistrate himself could have filed the complaint in Court or the complaint could have been filed by a person to whom he is administratively subordinate. The A. P. P. certainly could not have been authorised to file the complaint. The order of Magistrate authorising the A. P. P. to file the complaint cannot, therefore, be allowed to stand. In the result, I dismiss this revision but with a direction that the Magistrate himself should file a complaint against the applicants under Section 188 IPC. The stay order dated 5-7-1977 is vacated. Revision dismissed.;