Mere issuance of administrative direction by a superior authority to his subordinate does not amount to promulgation of order under Section 188, Indian Penal Code. Publication of a regulation framed under the Epidemic Diseases Act, 1897, in the official Gazette does not constitute promulgation of the order, unless it is made known openly and in public. Prosecution of an offence under Section 188, Indian Penal Code, without a complaint by the public servant concerned or administratively superior public servant, as required under Section 195, Criminal Procedure Code, is an abuse of process of law.

S.N.JHA and S.K.CHATTOPADHYAYA JJ.

1. The petitioner seeks quashing of the First Information Report of Sakra P. S. Case No. East Cr C 1994 (1)-35 49 of 1991 under Section 188 of the Indian Penal Code and the resultant - investigation.

2. The petitioner is a member of Bihar Administrative Service. At the relevant time he was posted as Child Development Project Officer attached to Bochahan and Sakra Blocks in the district of Muzaffarpur. It is said that the Prakhand Vikas Padadhikari of Sakra asked for the names of Lady Supervisors working under him. After the names were furnished to him they were attached with different Mukhiyas of the Block. The petitioner lodged a protest expressing his reservation as the jurisdiction of the Prakhand Vikas Padadhikari to pass any such order. It is said that the Prakhand Vikas Padadhikari took umbrage at the objection and by bringing the Pramukh of the Block in collusion got a written report lodged with the police on 4-3-1992 on the basis of which the aforementioned case has been registered. According to the complaint, the petitioner is alleged to have disobyed the directives of the District Magistrate and thereby has committed the offence under Section 188, Indian Penal Code in terms of Clause 9 of the Regulation framed under the Epidemic Diseases Act.

3. In our opinion, the prosecution of the petitioner has to be quashed for two-fold reasons, firstly because the ingredients of Section 188, I. P. C. or, for that matter, any other offence is not made out, and secondly, on account of non-compliance of the provisions of Section 195, Cr. P. C. Section 188, I. P. C. reads as follows :

"188. Disobedience to order duly promulgated by public servant.- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such obedience cause or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons 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; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

A perusal of the section, inter alia, makes two things clear, firstly, that the order alleged to have been disobeyed must be one which has been promulgated by the public servant concerned, and secondly, that it must be intended to direct persons to abstain from certain property which is in their possession or under their management. We shall consider the question as to whether a directive issued by the superior authority to his subordinate can tantamount to promulgation later. Before that we would like to make it clear that except where the order relates to certain property in possession of or under the management of the person (s) concerned where positive orders may be passed, the section envisages orders which are negative in nature restraining persons from doing certain act. In the instant case it appears that the District Magistrate, Muzaffarpur, had issued certain instructions or directives to his sub-ordinates including the petitioner in relation to implementation of the anti-Kalazar scheme. We have reservations as to whether an order of such a nature can be said to be an order either relating to property in ones possession or under ones management or directing him to abstain from certain act. We have more serious reservations in accepting the plea of the State that issuance of administrative direction by a superior authority to his subordinate would amount to promulgat