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Allahabad High Court · body

1966 DIGILAW 39 (ALL)

Sri Krishna v. State

1966-01-27

R.CHANDRA

body1966
ORDER R. Chandra, J. - This is and revision by Sri Krishna and ten others, against the order of the Magistrate dated 19-8-1953 passed in the case u/s 186, IPC. He repelled the objection of the Petitioners that the complaint by the Munsif was not competent. Being aggrieved with that order, they also filed a revision in the Sessions Court, The Additional Sessions Judge, Bahraich, agreed with the view of the Magistrate and dismissed the revision. Now, the Petitioners have come up in revision to this Court. 2. The main grounds raised on behalf of the Petitioners are: 1. That the process servers wert not subordinate to the Munsif and-so, the complaint by him u/s 195(1)(a) of the Code of Criminal Procedure, was incompetent. 2. That the Magistrate was not competent to frame charges Under Sections 353/149 and 395 of the IPC, in the proceedings started on the complaint u/s 195(1)(a) of the Code of Criminal Procedure. The facts of the case in brief are that in a civil suit (No. 4 of 1961), Munsif, Bahraich, passed an order for attachment before judgment. Three process servers were deputed to execute that order. On 9-1-1961 they went to the spot and attached certain movable properties belonging to the Defendant. The attached property was left in the supurdagi of one Sankata Din. It was alleged that in the meantime, the Petitioners appeared there, hurled abuses on the process servers and also attacked them. They forcibly removed the attached property. The process servers made a report to the Munsif. He issued notices to, the Petitioners to show cause why a complaint u/s 195 of the Code of Criminal Procedure for committing an offence u/s 186 of the IPC, be not filed. After giving a hearing to the Petitioners, the Munsif passed an order for filing the complaint. 3. Being aggrieved with that order, the Applicants went up in appeal to the District Judge, He dismissed the appeal and maintained the order of the Munsif for filing of the complaint. Accordingly, the complaint was filed. 4. Before the Magistrate, a preliminary objection was taken on behalf of the Petitioners, that the process servers were not subordinate to the Munsif and so, he was not competent to file the Complaint as required u/s 195(1)(a) of the Code of Criminal Procedure. Accordingly, the complaint was filed. 4. Before the Magistrate, a preliminary objection was taken on behalf of the Petitioners, that the process servers were not subordinate to the Munsif and so, he was not competent to file the Complaint as required u/s 195(1)(a) of the Code of Criminal Procedure. This objection was dismissed on the ground that irrespective of the fact whether process servers were or were not subordinate to the Munsif, the District. Judge (to whom the process servers were subordinate) under his appellate jurisdiction had ordered the filing of the complaint. The Sessions Judge agreed with the view of the Magistrate. He also held that at least for carrying out the particular order the process servers were certainly subordinate to the Munsif. The other objection that charges Under Sections 353 and 395, IPC, could not be framed in the proceedings u/s 195(1)(a) of the Code of Criminal Procedure, also did not find favour with the Sessions judge and ho rejected it. Now being dissatisfied with that order, they have come up in revision to this Court Section 195(1)(a) of, the Code of Criminal Procedure, lay's down: (1) No court shall take cognizance-- (a) of any offence punishable under Sections 173 to 188 of the IPC, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. 5. Chapter XXXV of the Code of Criminal Procedure lays down the procedure for cases mentioned, in Section 195, but it has no application to the proceedings taken u/s 195(1)(a) of the Code of Criminal Procedure, That chapter only relates to the prosecutions started u/s 195(1)(b) and (e). The word "subordinate" has not been specifically defined under the Code of Criminal Procedure or IPC. "Public servant" has however, been defined u/s 21 of the IPC. Clause four lays down: Every officer of a Court of Justice whose duty it is as such officer...to execute any judicial process...and every person specially authorised by a Court of justice to perform any of such duties. So, it could pot be doubted that both the Munsif and the process servers were public servants within the meaning of Section 21 of the IPC. It would be putting a too narrow interpretation that the process IPC. So, it could pot be doubted that both the Munsif and the process servers were public servants within the meaning of Section 21 of the IPC. It would be putting a too narrow interpretation that the process IPC. It would be putting a too narrow interpretation that the process servers were subordinate to the District Judge and not to the Munsif. It could not be disputed that the process servers were subordinate to the Munsif while they were carrying out his orders. Unless' the process servers are protected they, could not carry out their duties and the administration of justice would become a farce : Similar view was expressed in the case--The Rajshahi Banking and Trading Corporation, Ltd. v. Surendra Nath Mitra 43 CrLJ 410. I agree with the Courts below that when the incident took place, the peons were carrying out the orders of the Munsif and were subordinate to him. 6. The District Judge under his appellate jurisdiction also agreed with the order of the Munsif directing the filing of the complaint. Accordingly, the complaint was filed after the disposal of the appeal. In the circumstances, the objection remains only of a technical nature. I find no substance in it. 7. Sections 195 to 199, Code of Criminal Procedure deal with the requisites for the prosecution of certain specified offences and their provisions must be limited to prosecutions for the offences actually indicated. If it was the intention of the Legislature to make sanctions or complaints the a certain form necessary for the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in these sections, the Legislature could have said so. To hold that these sections of the Code apply to all prosecutions based on certain facts is clearly erroneous. 8. To hold that these sections of the Code apply to all prosecutions based on certain facts is clearly erroneous. 8. Where, therefore the fact alleged in a complaint or a police report or oil an information received by the Magistrate on which a Magistrate can ordinarily take cognizance of an offence u/s 190 Code of Criminal Procedure disclose an offence of which cognizance cannot be taken by the Magistrate because of the special provisions under the Act, the Magistrate is not debarred because of this from taking cognizance also of other offences disclosed by the facts alleged which are not, in any way, affected by the provisions contained in Sections 195 to 197 or 199, Code of Criminal Procedure. In a similar case Sheo Ahir v. Emperor 40 CrLJ 71, it was held: If in course of one transaction a number of offences are committed Some requiring sanction for prosecution of some authority or the other and others not requiring such sanction, it is not necessary that the prosecution of those offences which do not require such sanction should depend upon the obtaining of the sanction for prosecution for those offences which require such sanction. The law requires that for the prosecution of a particular offence, sanction of the Court should be obtained; but it does not say that if in course of the commission of an offence which requires sanction for prosecution other offences are committed, the Magistracy or the Police are helpless in proceeding to prosecute the offender for these latter offences, unless the Court sanctions the prosecution of the former. 9. Section 195, Code of Criminal Procedure does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section. Similar view was expressed by the Supreme Court in the case Basir-ul-Huq v. The State of West Bengal on the complaint of Basir-ul-huq and Others Vs. The State of West Bengal, AIR 1953 SC 293 . In the circumstances, there appears to be no bar for the Magistrate in framing charges Under Sections 353 and 395 of the IPC in the proceedings started u/s 195(1)(a) of the Code of Criminal Procedure. This objection too has no substance and must fail. 10. No other point was pressed. The revision merits dismissal. 11. Accordingly, the revision is dismissed.