K.P. Mohapatra, J.@mdashThe Petitioners have been accused of an offence u/s 188 of the Indian Penal Code (referred to as ''I.P.C.'') in the
court of the Judicial Magistrate, Salipur in 2(c) C.C. No. 207 of 1982. They have made this petition u/s 482 of the Code of Criminal Procedure
(referred to as the ''Code'') for quashing the order of cognizance dated 20.8.1982.
2. The facts material for the purpose of disposing of the petition are narrated in brief. At the instance of one Hemanta Kumar Panda, the learned
Executive Magistrate, Cuttack, initiated Criminal Misc. Case No. 154 of 1982 u/s 144 of the Code against Petitioners 1 and 2 and passed the
preliminary order on 4.5.1182 to the following effect:
I consider this as a case of emergency and do hereby order u/s 144(2), Code of Criminal Procedure restraining the 2nd party members from
making construction and coming upon the disputed hand for a period of 60 days from the date of signing of this order. The 2nd party members are
directed to appeal in my court on 15-5-1982 and show cause as to why this order shall not be made absolute.
The priliminary order was promulgated on Petitioners 1 and 2 who were the members of the second party in the proceeding u/s 144 of the Code
on 7-5-1982. After considering the cause shown by them, the learned Executive Magistrate made the preliminary order absolute on 3-6-1982.
3. On 24-8.1982, the learned Executive Magistrate filed a complaint petition in the court of the Chief Judicial Magistrate, Cuttack against the
Petitioners and the same was registered as 2(c) C.C. No. 297 of 1982. It was alleged in the complaint petition that despite the prohibitory order
u/s 144(2) of the Code and in violation thereof, the Petitioners on 14-7-1982 criminally trespassed on the land in dispute in the proceeding and
made illegal constructions. Therefore, he prayed that the Petitioners having committed an offence u/s 188, I.P.C. should be punished thereunder.
On receipt of the complaint petition, the learned Chief Judicial Magistrate took cognizance of the alleged offence u/s 188, I.P.C. on 26-8-1982
and in due course transferred the case for trial to the court of the Judicial Magistrate, Salipur.
4. Mr. A.K. Baral, learned Counsel appearing for the Petitioners strenuously urged that the Petitioners did not violate the prohibitory order in any
manner within 60 days of the order u/s 144(2) of the code an therefore they did not commit the alleged offence u/s 188, I.P.C. If at all they
trespassed into the disputed land and made illegal construction on the alleged date, they were liable for any other offence such as Section 447,
I.P.C. Therefore, the order of the learned Chief Judicial Magistrate dated 26-8-1982 taking cognizance of the offence u/s 188, I.P.C. and the
proceeding subsequent thereto in 2(c) C.C. No. 297 of 1982 should be quashed in exercise of the inherent powers or this Court u/s 482 of the
Code. Mr. D.P. Sahoo, learned standing Counsel very fairly conceded that the entire criminal proceeding against the Petitioners being not in
accordance with law, is liable to be quashed.
5. According to Sub-section (4), no order u/s 144 of the Code shall remain in force for more than two months from the date of making thereof.
The learned Executive Magistrate passed the preliminary order u/s 144(2) of the Code on 4-5-1982 and made the order absolute on 3-6-1982.
The effect of the order expired on 4-7-1982. Even if it is assumed that the prohibitory order become effective from the date of promulgation
thereof on 7-5-1982 the effect thereof expired on 7-7-1982. This view is supported not only by a plain construction of Sub-section (4) of Section
144 of the Code, but also by two decisions of the Patna High Court reported in Puran Singh v. Mt. Ramjhari Koer AIR 1935 Pat. 224, and Ram
Narain Sah and Another Vs. Parmeshwar Prasad Sah and Others, . In the case of Puran Singh AIR 1935 Pat. 224, Varma, J. held that the period
of 60 days begins to run from the date on which the notices are issued. In the case of Ram Narain Sah and Another Vs. Parmeshwar Prasad Sah
and Others, , reliance was placed on the case of Puran Singh AIR 1935 Pat. 224 and it was held by Davie, J. that the 60 days period u/s 144 runs
from the date on which the notices are issued. It appears from the record of Criminal Misc. Case No. 54 of 1982 of the court of the learned
Executive Magistrate, Cuttack that the prohibitory order was issued on 4.5.1982 for the purpose of promulgation. It is, therefore, immensely clear
that the prohibitory order u/s 144(2) of the Code passed and issued on 4.5.1982 further promulgated on 7.5.1982 came to an end after expiry of
60 days on 1-7-1982 (sic) at the latest on 7.7.1982. This being the position, the Petitioners were not under any prohibition or restraint on 14-7-
1982 when the alleged offence according to the complaint petition was committed therefore, the alleged offence u/s 188, I.P.C. could not have
been committed by the Petitioners and the order of taking cognizance of the offence dated 26.8.1982 and the subsequent proceeding of the case
being illegal are liable to be quashed.
6. A peculiar feature which came to my notice is that Petitioner No. 3, wife of Petitioner No. 1, was not a party to the proceeding u/s 144 of the
Code. No prohibitory order who passed nor promulgated on her. Yet, she was made an accused in the complaint petition and surprisingly, the
learned Chief Judicial Magistrate, Cuttack took cognizance of the offence against her along with Petitioners 1 and 2. It is apparent that the learned
Chief Judicial Magistrate, Cuttack did not apply his mind and did not even peruse the facts stated in the complaint petition. Had he done so, he
would not have passed a mechanical order by taking cognizance of an offence u/s 188, I.P.C., against Petitioners 1 and 2 as well as, Petitioner
No. 3. It is on account of his non-application of mind that the Petitioners have suffered awl their liberty jeopardised. It is essential and the interest
of justice demands that the Judicial Magistrates must apply their mind at the time of taking cognizance of offences and scrupulously avoid taking
cognizance of offences in a mechanical manner simply because complaint petitions are filed by public Officers, for, no citizen should suffer in any
manner and his liberty endangered by such mechanical action.
7. Law is well settled that the High Court in exercise of its inherent jurisdiction does not ordinarily interfere with a criminal proceeding at an
interlocutory stage unless there are exceptional circumstances. Inherent jurisdiction can he exercised to quash a criminal proceeding in an
appropriate case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. If there is no prima facie case
and, when the facts alleged in the complaint petition, even though, accepted as correct in their face value do not make out an offence with which
the accused is charged, inherent power u/s 482 of the Code can be exercised and the criminal proceeding quashed. The above view is supported
by authorities such as R.K. Kapur v. State of Punjab, Hareram Satpathy v. Tikraram Agrwala and Ors., Judhistir Das v. Patitapaban Hota and
Anr., State of Orissa v. Mr. Abdul Karim and Mathew Omalt and Anr. v. State of Orissa, to cite a few. In my considered opinion, the facts
alleged in the complaint petition in 2(c) C.C. No. 297 of 1982, if accepted as correct do not at all really a prima facie case against the Petitioners.
8. In the result, the Criminal Misc. Case is allowed. The order of cognizance dated 26-8-1982 passed by the learned Chief Judicial Magistrate,
Cuttack and the subsequent orders passed in 2(c) C.C. No. 297 of 1982 are hereby quashed.