A complaint under Section 188, I. P. C. must be filed by the public servant concerned or by a public servant to whom he is subordinate, as required by Section 195 (1) (a), Cr. P. C.

( 1 ) CASE No. 15/72 of 1967 under Section 146, Cr. P. C, between Doodhnath and Ram Lakhan, was decided by the Sub-Divisional Magistrate Gyanpur on merits. Doodhnath represented the interest of Shrimati Ram Piari. The Sub-Divisional Magistrate Gyanpur by his order dated 11th April 1968 declared Shrimati Ram Piari to be in possession over plot No. 338 situate in village Balapur Rohi, P. S. Gopiganj, district Varanasi and restrained Ram Lakhan from interfering with her possession. Ram Lakhan has died. Out of the six applicants before this Court, two are his brothers and four are his nephews.

( 2 ) IT appears that civil litigation is also pending between the parties in which the applicants have been substituted as the heirs and legal representatives of Ram Lakhan. It further appears that these applicants have obstructed Shrimati Ram Piari in exercising possessory rights over plot No. 338 with the result that a complaint was filed by the Sub-Divisional Magistrate Gyanpur for taking action against the applicants for an offence under Section 188, I. P. C. on the basis of a complaint made by Doodhnath on 10-3-1972. The trial court came to the conclusion that the offence had been established and awarded a sentence of three months R. I. to the applicants. Aggrieved thereby an appeal was filed before the Sessions Judge Gyanpur, Varanasi which has been dismissed on 19th April 1977, with the modification that the sentence of imprisonment has been converted into one of fine of Rs. 100/- on each of the applicants. Hence this revision.

( 3 ) I have heard Sri Anand Swarup Srivastava learned Counsel for the applicants and Sri Prem Prakash. A. G. A. at considerable length and have also perused the impugned orders. The applicants counsel has argued that the original order dated 11th April 1968 was passed by Sri R. C. Shukla, Sub-Divisional Magistrate Gyanpur and the instant complaint under Section 188, Indian Penal Code has been filed by Sri S. Nath, Sub Divisional Magistrate Gyanpur, Varanasi. Learned Counsel for the applicants has contended that Section 195 (1) (a) Cr. P. C. bars taking of the cognizance of this complaint. Section 195 (1) Cr. P. C. reads as follows: No Court shall take cognizance- (a) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Learned counsel has argued that Sri R. C. Shukla had initially decided the case under Section 145, Cr. P. C. on 11th April, 1968. He alone was the public servant concerned competent to file a complaint. If, for some reason or the other, he was not available then, in the alternative the complaint could also have been filed by a public servant to whom Sri Shukla was subordinate.

( 4 ) IN support of this contention learned Counsel for the applicants has cited some decisions, namely AIR 1966 Cal 102 Bachuram Kar v. The State. This was a case under Section 144, Cr. P. C. in which Justice Mookerjee observed as follows:

In a case where the public servant concerned. . . is not available by reason of transfer or resignation or death, then a complaint might be made by some other public servant to whom he is subordinate.

While dealing with the facts of the case it appears that an ex parte order of injunction prohibiting the entry on the land in dispute under Section 144 of the Code had been made by a First Class Magistrate, while he was functioning as a Sub-Divisional Magistrate. This order is alleged to have been violated and disobeyed. The complaint was made by the First Class Magistrate for an offence under Section 188, I. P. C. It was held by that Court that the complaint was a valid complaint, although on the date he made the complaint he was not functioning as the Sub-Divisional Magistrate, Gyanpur.

( 5 ) IT was further argued before that Court that if Section 195, Cr. P. C. be taken to refer to the pu