Quashed

Ramesh Rabha and 2 Ors. v. Santaram Rabha and Anr.

Gauhati HC10 Apr 2018Crl.Pet./638/2017

Case brief

AI extract

What is this about?

This petition under Section 482 Cr.P.C. sought quashing of criminal proceedings initiated against the petitioners for alleged violation of a civil court order. The high court quashed the impugned order of taking cognizance, ruling that the Magistrate lacked jurisdiction due to absence of a written complaint under Section 195 Cr.P.C.

What did the court decide?

The impugned order dated 19.01.2009 passed by learned JMFC taking cognizance and all incidental proceedings are quashed.

Ramesh Rabha and 2 Ors. Vs Santaram Rabha and Anr. — Criminal Trial and Appeal | Gauhati HC (2018)

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GAHC010032822017

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet. 638/2017

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1:RAMESH RABHA and 2 ORS.

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2: KABINDRA RABHA

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3: BHUPEN RABHA ALLA RE S/O- LATE MONESWAR RABHA AND R/O- 2 NO. NALAPARA LALMATI P.O- NALAPARA P.S- BOKO DIST- KAMRUPR ASSA

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VERSUS

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1:SANTARAM RABHA and ANR.

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2:STATE OF ASSA

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Advocate for the Petitioner : MS.P DAS

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

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ORDER

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Date : 10-04-2018

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Heard Mr. D.C. Kalita, learned counsel for the petitioners and Mr. D Das, learned Addl. PP, Assam.

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This petition under Section 482 Cr.P.C. has been filed by the petitioner

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praying for quashing the criminal proceeding in GR Case No.1230/2015 under Section 188/447 IPC pending in the Court of learned JMFC, Amingaon, Kamrup (R).

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The respondent No.1 filed a civil suit for declaration of title, confirmation of possession and also for permanent injunction. He also filed a petition praying for temporary injunction restraining the present petitioners who were defendant in that suit, from entering into the suit property and the learned Civil Court granted temporary injunction vide order dated 19.01.2009 in Misc (J) case No.5/2009 directing the parties to maintain status-quo. It was alleged in the FIR that the petitioners in violation of the said order of status-quo, entered into the suit land and therefore, the FIR was lodged basically for violation of the order of the Court. On the basis of the said FIR, police registered a case and eventually submitted charge-sheet against the petitioners under Section 188 IPC read with section 447 IPC. On the basis of such charge-sheet, learned JMFC took cognizance and issued process.

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Aggrieved by the said order of the learned JMFC taking cognizance against the petitioners on the basis of the charge-sheet, submitted by the police, the petitioners have approached this Court for quashing the proceeding.

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Learned counsel for the petitioners submits that in absence of a written complaint from the concerned Court, learned Magistrate did not have jurisdiction to take cognizance of an offence under Section 188 IPC.

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I find merit in the submission of the learned counsel, inasmuch as section 195 of the Cr.P.C. debars the Magistrate from taking cognizance of any offence under Section 188 IPC for violation of the Courts order in absence of a written complaint lodged by the said Court or officer or any other Court or officer to which it/he is subordinate. Apparently, in the instant case, there was no written complaint lodged by the Court, and the police registered the case on the basis of an FIR lodged by the respondent and submitted charge-sheet.

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Since no written complaint as contemplated under Section 195 Cr.P.C., was filed by the Court for violation of its order, the impugned order passed by the learned trial Court taking cognizance was ex-facie illegal and without jurisdiction,

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and such order cannot be allowed to hold the filed and deserves to be set-aside. Accordingly, the impugned order dated 19.01.2009 passed by learned JMFC Kamrup, Amingaon in GR Case No.1230/2015 taking cognizance against the petitioner and all other proceeding incidental thereto are hereby quashed.

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The criminal petition stands disposed of.

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JUDGE

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Smita

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Comparing Assistant

Ramesh Rabha and 2 Ors. v. Santaram Rabha and Anr.

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Ramesh Rabha and 2 Ors. v. Santaram Rabha and Anr.

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