Jharkhand High Court
Jagat Narayan Upadhayay vs The State Of Jharkhand on 5 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1458 of 2015
Jagat Narayan Upadhayay, son of Durga Narayan Prasad, Resident of
Rajabadi, P.O. Pakur, P.S. Pakur (T), District- Pakur (Jharkhand)
... Petitioner
-Versus-
The State of Jharkhand ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Rajeeva Sharma, Sr. Advocate
For the Opposite Party-State : Mr. Anup Pawan Topno, A.P.P.
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06/05.10.2021. Heard Mr. Rajeeva Sharma, learned Senior counsel for the petitioner
and Mr. Anup Pawan Topno, learned A.P.P. for the opposite party-State.
2. This petition has been filed for quashing the entire criminal
proceeding including the cognizance order dated 07.06.2014 passed by the
learned Judicial Magistrate, 1st Class, Pakur in Pakuria P.S. Case No.16 of
2014, corresponding to G.R. Case No.195 of 2014, whereby, cognizance
under Section 188 of the Indian Penal Code, 1860 and Section 3 of the
Prevention of Defacement of Public Property Act, 1987 has been taken
against the petitioner.
3. The F.I.R. was instituted pursuant to the written report of the
informant namely Md. Jahir Alam, Probationary Deputy Collector, Pakur that
on 15.03.2014 at about 03:50 p.m., he found two flags over the two
electricity pole of Jharkhand State Electricity Board and on inquiry nothing
has been disclosed to him. He found that the flag is of one political party.
4. Mr. Rajeeva Sharma, learned Senior counsel for the petitioner submits
that the flag of the party was hoisted in electricity pole and for that the
F.I.R. has been lodged. He further submits that the petitioner is not named
in the F.I.R. and there is no overt act alleged against the petitioner and
there is no ingredient under Section 188 of the Indian Penal Code, 1860 and
Section 3 of the Prevention of Defacement of Public Property Act, 1987. He
also submits that in a very cryptic manner, the learned court below has
taken the cognizance against the petitioner.
5. Learned A.P.P. for the State tried to justify the cognizance order.
6. In order to attract Section 188 I.P.C., the ingredients are required to
be proved that there must be an order promulgated by the public servant,
that such public servant is lawfully empowered to formulate it, that the
person with the knowledge of such order and being directed by such order
to abstain from doing certain act or to take certain order with certain
property in his possession or under his management has disobeyed such
direction, shall if such disobedience causes or tends to cause obstruction,
annoyance or injury or risk of obstruction to any person lawfully employed
be punished with simple imprisonment for a term which may extend to one
month, or with fine which may extend to two hundred rupees, or with both.
A reference in this regard may be made to the case of Ram Manohar
Lohiya v. State of U.P., reported in AIR 1968 Allahabad 100.
7. On perusal of the cognizance order, it transpires that in a very cryptic
manner the learned court below has taken the cognizance against the
petitioner. To initiate a criminal proceeding against the person, this is a very
serious thing, which has been held by the Hon'ble Supreme Court in the
case of Pepsi Foods Ltd. v. Special Judicial Magistrate , reported in
(1998) 5 SCC 749. Paragraph 28 of the said judgment is quoted herein
below:
"28. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have
the criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his
mind to the facts of the case and the law applicable thereto.
He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in
support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate is a silent spectator at
the time of recording of preliminary evidence before
summoning of the accused. The Magistrate has to carefully
scrutinise the evidence brought on record and may even
himself put questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused."
8. In view of the aforesaid facts, the impugned cognizance order is not
in the parameter of Section 204 Cr.P.C. Accordingly, the entire criminal
proceeding including the cognizance order dated 07.06.2014 passed by the
learned Judicial Magistrate, 1st Class, Pakur in Pakuria P.S. Case No.16 of
2014, corresponding to G.R. Case No.195 of 2014, pending in the court of
the learned Judicial Magistrate, 1st Class, Pakur is, hereby, quashed.
9. This criminal miscellaneous petition is, therefore, allowed and
disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
