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Judgment
L.P.N. Shahdeo, J.—This is an application for quashing the entire criminal prosecution as well as the order taking cognizance dated 27.7.1984 passed by Shri Ashghar Ali, Judicial Magistrate, 1st Class, Hazaribagh, in Complaint Case No. 169 of 1984, whereby he had taken cognizance of the offence under sections 147, 148, 379 and 426 of the Indian Penal Code, in the following circumstances. It appears that a proceeding u/s 147 of the Code of Criminal Procedure had started between the parties and that proceeding ultimately concluded on 16.6.1984 in which learned Executive Magistrate has passed the order that the petitioner who was the first party in that proceeding had full right of user over plot no. 728 khata no. 1/76 with an area of 03 acres out of 7.23 acres and he had also given the boundary on that land. He had further directed the police to get the obstruction already placed on the land under proceeding, be removed immediately and report compliance. It appears that in pursuance of the aforesaid order passed by the Executive Magistrate the police had removed the obstruction and submitted compliance report on 5.7.1984 vide annexure-3. Thereafter, it appears that the complainant who was the second party in that Section 147 proceeding filed a case alleging that the petitioners had forming an unlawful assembly had cut and removed the trees. Thereafter, the learned Magistrate took cognizance of the offence as indicated above, which is being challenged in this application u/s 482 of the Code of Criminal Procedure.
The learned counsel for the petitioners, Mr. K.H. Sarkar has submitted that whatever the petitioners or the police officer had done was in pursuance to the judicial order passed by the learned Executive Magistrate and as such the action taken by them in pursuance of the aforesaid lawful order is fully protected u/s 78 of the Indian Penal Code.
On the other hand the learned counsel appearing on behalf of the opposite party no. 2, complainant, has submitted that they had transgressed the limit of the order and cut the trees for which he had filed the case.
It is undisputed matter in this case that the police officer along with the petitioners had removed the obstruction from the disputed land of 147 proceeding, the details of the land were given in that proceeding with area, boundary, plot no. and khata no.
Therefore, there does not appear to be any ambiguity with respect to the disputed land. The learned Magistrate had passed the order in a proceeding u/s 147 of the Code of Criminal Procedure vide annexure-2, in which he directed to remove that obstruction and submit compliance. It appears that in pursuance to the judicial order passed, the police officer with the help of these petitioners had removed the obstructions and compliance report was submitted on 5.7.1984.
It appears that the compliance report was also received and that was kept on the record by the Executive Magistrate in his record (vide annexure-4), on 13.8.1984.
Therefore, it has been established beyond doubt that the police officer along with these petitioners had removed the obstructions which were in the shape of bricks, wall, trees, ditch, etc., which were removed by the police officer with the help of these petitioners and these facts are also borne out in the report of the police officer vide annexure-3.
Thus it is manifestly clear that the police officer with the help of these petitioners, had simply complied with the lawful order passed by the learned Executive Magistrate and in doing so, they had not committed any offence and therefore, the order taking cognizance and criminal prosecution for such nature of alleged offence is clearly abuse of the process of the Court.
In this connection section 78 of the Indian Penal Code may be taken note of which reads as follows:--
Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a court of justice, if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.
This shows that nothing is an offence which is done in pursuance to the judgment or order of a Court of justice and till that the order remains in force. This exception is further indicated that even if the Court, which his passed the order may not have jurisdiction to pass such a judgment or order but yet, that is no offence if person doing the act in good faith believes that the Court had such jurisdiction."
In this application the question of jurisdiction, has not been challenged by either party. Therefore, action done by them or action taken by them in pursuance of the order of the Court, in a proceeding u/s 147 of the Code of Criminal Procedure was not an offence.
Apart from that the main offence alleged in this case is u/s 379 of the Indian Penal Code. Dishonest intention is gist of the offence of that which is clearly wanting in this case. Compliance of lawful command of an order cannot be an offence. In the action taken by the petitioner, question of dishonest intention does not arise.
Having regard to all the facts and circumstances, the criminal prosecution and impugned order of taking cognizance against the petitioner cannot be sustained and both must be quashed. In the result this application is allowed and the criminal prosecution and impugned order of taking cognizance against the petitioners are quashed.