JUDGMENT
Anand Prasad Sinha, J.
1. This case has been referred by a learned Single Judge to Division Bench for consideration of the point involved as to whether a complaint by a party can legally initiate a criminal case and cognizance be taken when at the time of committing of the alleged offence relating to certain property, was involved in a proceeding Under Section 144 of the Cri.P.C. (hereinafter to be referred to as the Code). Connected with this, another question involved is whether any complaint will be the exclusive jurisdiction of the court concerned with the proceeding Under Section 144 of the Code and only on the basis of a complaint filed Under Section 195(1) of the Code.
2. This application is directed, against the order of cognizance dated 3-9-1980 for its quashing passed in C.R. Case No. 1861 of 1979 arising out of Govindganj P.S. Case No. 2(11) 79 by which cognizance has been taken for the offences Under Sections 147, 148, 379 and 427 of the I.P.C. against the petitioners.
3. The petition of complaint giving rise to the impugned order of cognizance was filed on 30-10-1979 by opposite party No. 2 Rama Sahni. A petition of complaint was filed against the petitioners including seven others whom the complainant claims to identify when shown. According to the allegations the complainant had taken Jalkar in settlement situated in Beraria Tola Musaha from Radhakant Pandey, Sheokant Pandey and Bhikhari Pandey. The said Jalkar related to Khata No. 663, Khasra No. 392 having an area of 3 bighas and the settlement was for a period from 24-8-1979 to 24-8-1980 on payment of Rs. 100/- by virtue of a Patta and since thereafter he had been coming in peaceful possession of the same. The complainant had fixed Chilwan and Bari for the fishing operation. On the date of occurrence i.e. on 29-10-1979 at about 4 P.M. when the complainant had gone to inspect the Bari, he could find that the petitioners (accused) and some others differently armed with lathi, Bhala were damaging the Bari and were breaking it. The complainant asked them to refrain from such illegal act upon which the petitioners (accused) became ready to assault him and had told him that if the complainant would come near the Bari he will be severely assaulted. On the hulla raised by the complainant witnesses had gathered and they had seen the occurrence. The petitioners had caused damage to the properties worth Rs. 500/- and had also carried away fish worth about Rs. 360/-.
4. The complaint petition when presented before the Chief Judicial Magistrate, the same had been sent to the police for instituting a case. That complaint petition was registered as Govindganj P.S. Case No. 2(11) 79 Under Sections 147, 379 and 427 of the I.P.C. The police took up investigation and submitted a final report. However, a protest-cum-complaint was filed and that was enquired into Under Section 202 of the Code. The complainant was examined on solemn affirmation and thereafter several witnesses on behalf of the complainant were examined ; ultimately resulting into passing of the impugned order of cognizance for the offences Under Sections 147, 148, 379 and 427 of the I.P.C. and issuance of processes against the petitioners and the next date fixed was 23- 9-1980 for the appearance. The impugned order of cognizance is Annexure-2 to the application.
5. In addition to the possession of the disputed Jalkar, the plea raised and which is for consideration and decision is that on the date of occurrence there was an order Under Section 144 of the Code by which the complainant had been restrained and also the member of the second party including petitioner Ishwar Dayal Singh and thus the complaint was not maintainable and the only remedy left to the complainant was that the court concerned, meaning thereby the court of the Sub-divisional Officer in whose court the proceeding Under Section 144 of the Code was pending, should have filed a petition of complaint Under Section 195( 1) of the Code for an offence Under Section 188 of the I.P.C. That being so, the impugned order of cognizance has been termed to be bad in law and fit to be quashed.
6. Before I take up the law involved in this case, it will be necessary to state a few facts with regard to the proceeding Under Section 144 of the Code. It appears that a proceeding Under Section 144 of the Code had been initiated on 11-10-1979. In that proceeding opposite party No. 2 (complainant) was the member of the first party and petitioner Ishwar Dayal Singh was the member of the second party. By order dated 11-10-1979 a restraint order had been passed that the parties shall not go to the disputed land and further they were directed to appear on 16-10-1979 and to file show cause if any. The dispute related to a plot of land (Jalkar) bearing Khata No. 663 Plot No. 392 having an area of 6 Katha. It appears that without any effective order the proceeding lapsed on 12-2-1980. However, the date of occurrence being 29-10-1979 was the date, which fell after initiation of the proceeding Under Section 144 of the Code and before the proceeding had lapsed.
7. Further another important fact worth mentioning is that on 27-11-1979 a petition had been filed by the first party Rama Sahni (opposite party No. 2) that Radhakant Pandey, Sheokant Pandey and Bhikhari Pandey be added as parties. It appears that they had been added as parties and notices had been ordered to be issued on 16-12-1979. Similarly, a petition had been filed on behalf of Ishwari Singh, a member of the second party on 15-12-1979 for addition of Dinanath Pandey as a party and consequent to that application on 1-2-1980 notices were issued against the newly added party.
8. Connected with the submission that no complaint is maintainable on the plea stated above, it has also been argued that since Rama Sahni was not in possession in view of the
restraint order, there could not be any offence Under Sections 379 and 427 of the I.P.C. It has also been argued that there being bona fide dispute of right and possession, no offence can be said to have been committed.
9. Before the other two points are taken up for consideration, while considering the maintainability of the complaint petition, I have no hesitation in saying that absolutely there is no legal infirmity and consequently the question of quashing of the impugned order of cognizance on this ground does not arise at all. It would appear that the accused persons named (petitioners excepting Ishwar Dayal Singh, (sic) others) were not parties to the proceeding Under Section 144 of the Code. A decision of the Full Bench of Calcutta High Court in the case of Dhirendra Nath Bera v. Nurul Huda (FB) leaves no room for doubt that a complaint of the type as is in this case was maintainable. This Full Bench decision of the Calcutta High Court was later upheld by the Supreme Court in appeal against that Full Bench decision in the case of Basirul Haque v. State of West Bengal . A decision relied upon by the petitioner in the case of Mahendra Prasad Singh v. State of Bihar is of no avail to the petitioners for the reason that a limited question involved in that case was as to whether there could be an offence Under Section 379 of the I.P.C. at the instance of a party, who was party in a proceeding Under Section 144 of the Code existing on the date of the commission of the offence. It was on the basis that the complainant could not be said to be in possession of the property ; whereas in the instant case there are other connected offences Under Sections 147, 148 and 427 of the I.P.C. and these offences are such which can successfully be initiated by the complainant as it will not strictly involve the question of possession keeping in view that the allegations are directed against damages and destructions caused to Bari and Chilwan which according to the complainant belonged to him and thus quite independent of the right of the Jalkar.
10. The second aspect regarding the decision making not available to the petitioners would be that the same had been considered in the case of Bhagwan Das v. S.D.O., Gaya
1976 BBCJ (HC) 172 : 1976 Cri LJ 1775 and on the basis of the Full Bench decision of the Calcutta High Court in the case of Dhirendra Nath Bera 1951-52 Cri LJ 1226 (supra) and a decision of the Supreme Court in the case of Basiraul Haque (Supra), the decision in the case of Mahendra Prasad Singh (supra) was pronounced by not considering the decision in the case of Dhirendra Nath Bera (supra) and Rasirul Haque (supra).
11. The decision in the case of Mahendra Prasad Singh v. State of Bihar (1970 Cri LJ 484) (Pat) relied upon by the petitioners in which it has been laid down that a party must be taken to be out of possession for the period he has been restrained from enjoying possession of the land under the prohibiting order passed Under Section 144 of the Code and thus the charge of theft will not lie against a party if he has harvested the paddy crops while the prohibitory order was still in force and that being so, if the Sub-divisional Magistrate thinks that his order has been violated and injustice has been done to the complainant, he may file a complaint according to the legal procedure but he cannot take cognizance of the case itself is firstly not applicable to the facts of this case because it will appear that the allegation is not only of theft but also of damages and destruction to the properties belonging to the complainant and moreover this decision is based upon a decision in the case of Osman Mistry v. Atul Krishna Ghose AIR 1949 Cal 632 : 1950-51 Cri LJ 97 which has been overruled by the Full Bench decision of the Calcutta High Court in the case of Dhirendra Nath Bera 1951-52 Cri LJ 1226 (supra) and confirmed by the Supreme Court in the case of Basirul Haque 1953 Cri LJ 1232 (supra).
12. In addition that, in the instant case the accused persons named are different (excepting 1) from the parties involved in the proceeding Under Section 144 of the Code and the nature of offences alleged are such (excepting theft) which could be brought to the cognizance of the authorities competent to take cognizance of such offences, on other reasons also a complaint can be said to be well maintainable and cognizance can be taken as had been done in the instant case including that of theft.
13. It is on the basis that the provisions of Section 195(1) of the Code is confined exclusively to an offence where there is an occasion of disobedience of the order of the competent authority, thus violating an order of restraint and that offence is punishable Under Section 188 or 186 of the I.P.C. Absolutely, there is no indication either in Section 195(1) of the Code or Section 188 or 186 of the I.P.C. that other offences punishable under the Penal Code are exclusively prohibited from the ambit of criminal prosecution. The initiation of the criminal prosecution for an offence of disobedience of an order of restraint, as generally happens in a proceeding Under Section 144 of the Code, is by a specific procedure of complaint by the competent authority only and that will mean that no one else excepting that competent authority can initiate a criminal proceeding for violating the prohibitory order either by filing a complaint or taking the matter to the police station. Of course, a grievance or a petition can be filed before the competent authority and even if an information is given to the concerned police station, a prayer has to be made to the competent authority for filing a complaint. This will never mean that if other offences have been committed punishable under the Penal Code, that will have no legal validity in the manner that, that offence shall not be a subject matter of criminal prosecution and that is on account of the fact that a complaint Under Section 195(1) of the Code for disobedience of the prohibitory order will only confine to the offence of disobedience of the order and that complaint will not include other offences having been committed in spite of prohibitory order Under Section 144 of the Code.
14. Of course, an offence of theft punishable Under Section 379 of the I.P.C. intends dishonest removal of certain property out of the possession of any person without that person’s consent, but in a case where a proceeding Under Section 144 of the Code exists and then a theft is committed connected with the property which is the subject matter involved in the proceedings, that cannot exonerate the wrong doer from the criminal liability as after all an offence has been committed during a period in which it cannot be said that right of the person involved in the proceeding is completely extinguished and the existence of such right will depend upon a prima facie fact as to whether the complainant has got reasonable and presentable right over the property which will be evident from other connected facts and that would be a definite point in issue of the authority taking cognizance against the wrong doer in a situation described above.
15. Disobedience of a prohibitory order is an offence independent in itself and as discussed above when it does not exclude cognizance of other offences, if a party is left with no remedy to initiate a criminal proceeding for an offence having been committed by any person simply because a prohibitory order had been passed, it will amount to failure of full implementation of criminal law. A restraint order is directed against the physical presence of the parties concerned and such restraint order cannot extinguish completely the legal right of a person connected with possession as physical control of a thing by a person is affected externally and independent of law. In law certain advantages are attached to the possessor. There is another concept of possession, independent to that which is wedded to the fact of phycical control and even if a person is not actually in control, he is entitled for some advantages that were available by persons actually in control. The terms ‘custody’ and ‘detention’ are distinguishable with an immediate right to obtain physical control and thus the interest involved becomes worthy of protection and any loss of possession by the effect of a prohibitory order cannot be said to be complete destruction of legal rights connected with the property involved in the proceeding and that can be stated on the basis of the principle that possession continued despite loss of animus.
16. With regard to the plea raised that there was a bona fide dispute and that being so no offence can be said to have been committed by the petitioners is without any merit. The nature of offences alleged is some thing which is not confined within the limits of advantages extended on the basis of a plea of bona fide dispute and moreover as to whether there was any occasion for bona fide dispute or not that is purely a question of fact to be adjudicated later and not to be considered at this stage.
17. In the result, I do not find any merit in this application which fails and is dismissed.
Ram Naresh Thakur, J.
18. I agree.