1998 P Cr (PLP)

‑‑‑‑Ss. 4(h), 144, 195(1)(a) & 561‑A‑‑‑Penal Code (XLV of 1860), S.188‑‑ Quashing of proceedings‑‑‑Prohibitory order under 5.144, Cr.P.C. was issued by Deputy Commissioner District Magistrate concerned, but complaint for violation of that order was filed under S.188, P.P.C. by Mukhtiarkar who was subordinate to District Magistrate/Deputy Commissioner‑‑‑In case of violation of an order passed by District Magistrate, within meaning of S.144, CI.P.C" the machinery of law could only be moved by filing complaint by order of such public servant who had issued such order or by his superior as envisaged under S.195(1)(a), Cr.P.C.‑‑‑Complaint in the case having .neither been filed by District Magistrate himself nor by his superior, like Home Secretary, but by a subordinate of District Magistrate, proceedings were ordered to be quashed.‑‑ [Complaint]. Hemraj I. Karmani for Applicants. Bahadur Ali Baloch for the State. The applicant/accused have applied for quashment of proceedings of case arising of F.I.R. No.41 of 1995 of Police Station Chachro registered under section 188, P.P.C. pending in the Court of S.D.M. Chachro. The brief facts of the prosecution case are that complainant Shoukat Ali is supervising Tapedar in Circle Tardos. Deputy Commissioner Tharparkar vide his Order No.J/B‑ 1483, dated 16‑7‑1995 had issued a prohihitory order under section 144, Cr.P.C. for not cultivating Estate land under Goucher (Pasture) area. During rainy season applicants/accused cultivated Goucher (Pasture) land. One Muhammad Ramzan made an application to the Mukhtiarkar Chachro questioning the cultivation raised by above said persons. This application was endorsed by Mukhtiarkar to complainant for making enquiry. He went at the site and found that the concerned person had actually cultivated the pasture area. He accordingly submitted such report to Mukhtiarkar who ordered for initiating proceedings for disobedience of 144, Cr.P.C. order and as per such order he lodged the F.I.R. and after usual investigation applicants/accused were sent up under section 188, P.P.C. in the Court of S.D.M. Chachro to stand trial. I have heard Mr. Hemraj, Advocate for the applicants/accused, and Mr. Bahadur Ali Baloch appearing on behalf of the State. Mr. Hemraj has argued that as laid down under section 195‑1(a), Cr.P.C. no Court can take cognizance of the offences punishable under sections 172 to 188, P.P.C. except on the complaint as defined under section 4(H), Cr.P.C. of the Public Servant who promulgated section 144, Cr.P.C. and present F.I.R. is not lodged by the concerned District Magistrate, therefore, proceedings are bad in law and may be quashed. He has placed reliance on 1997 PCr.LJ page 589 (Kar.). Mr. Bahadur Ali, Baloch appearing on behalf of the State supports the counsel for the applicants/accused and states that the proceedings are abuse of the process of Court and be quashed. In case of violation of an order passed by District Magistrate, within the meaning of section 144, Cr.P.C. the machinery of law can only be moved by filing complaint by order of such public servant who promulgated real order or by his superior as envisaged under section 195(1)(a), Cr.P.C. In the present case, there ought to have been a complaint as envisaged under section 4(h), Cr.P.C. by the District Magistrate, Tharparkar himself or by his superior i.e. Home Secretary and under no circumstances, supervising Tapedar at the dictates of Mukhtiarkar who is subordinate to District Magistrate could file F.I.R. Under these circumstances and reasons recorded supra I quash the proceedings pending 1995 of Police Station Chachro District Tharparkar under section 188, P.P.C. Application Stands allowed. N.H.Q./G-45/K Application allowed.