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1976 DIGILAW 164 (KAR)

SHANKARAPPA SANGAPPA v. ALLISAB

1976-10-08

M.S.NESARGI

body1976
( 1 ) IN this petition the order dt. 5-1-1976 passed by the Judicial Magistrate first Class, Sindgi, in Crl Case No. 254 of 1975, acquitting respondent 1, who was the accused therein, of the offences under Ss. 342, 353, 323 and 504 of ipc, on the ground that the provisions of S. 195 of the Crlpc, 1973 (to be hereinafter referred to as the Code), had not been complied with, is challenged. ( 2 ) THE necessary facts may be narrated briefly as follows: The petitioner, who was working as an employee of the village panchayat commitete of jaiwad, had, on the instructions of the village accountant Sri G. S. Kajgar, gone to collect levy jowar when respondent 1-accused obstructed him in discharging his duties, and in the course of obstructing him, abused him, wrongfully confined him and assaulted him. The petitioner complained to the police and the police after investigation into the case, filed a charge- sheet alleging that respondent 1-accused had committed offence punishable under Ss. 342, 353, 323 and 504 of IPC. The Magistrate framed charges under Ss. 342, 353, 323 and 504 of IPC on 29-7-1975. Later an application was tiled On behalf of respondent 1-accused contending that as the petitioner had not filed a complaint as per the provisions of S. 195 of the Code, the court had no jurisdiction tc take cognizance of the offences because the offence under S. 353 of IPC is no other than the offence under S. 186 of IPC and as such respondent 1-accused was entitled to be acquitted. ( 3 ) ON behalf of respondent 1-accused, reliance was placed on the decision of the Patna High Court in Janki Prasad Tibrewal v. State of Bihar 1975 (1) Crllj. 575. The learned Magistrate took the view that the facts and circumstances found in the said case were similar to the facts and circumstances in the case on hand, and proceeded to pass the order acquitting Respt 1-accused. The facts in Janki Prasad Tibrewal's cased) were that a warrant of arrest was issued against Janki Prasad Tibrewal and the Dalpati-Shri Ram lakhan Sharma was entrusted with the warrant for execution. Shri Ram lakhan Sharma went to Janki Prasad Tibrewal to execute the warrant. The facts in Janki Prasad Tibrewal's cased) were that a warrant of arrest was issued against Janki Prasad Tibrewal and the Dalpati-Shri Ram lakhan Sharma was entrusted with the warrant for execution. Shri Ram lakhan Sharma went to Janki Prasad Tibrewal to execute the warrant. Janki Prasad Tibrewal became very much annoyed, abused Shri Ram lakhan Sharma in filthy language and tore away his uniform and prevented him from executing the warrant of arrest. Shri Ram Lakhan Sharma went to the Mukhia. who had entrusted the warrant to him, and both of them again went to Janki Prasad Tibrewal to execute the warrant. Janki prasad Tibrewal again obstructed these two persons from executing the warrant and in that process assaulted them. Information was lodged to the concerned police station and the police after investigation submitted charge-sheet alleging-offences under Ss. 323, 324 and 353 of the IPC, and the Magistrate took cognizance of the said offences. It was contended that the offence under S. 186 of the IPC and the offence under S. 353 of the ipc were the same and as such by merely mentioning that the offence was under S. 353 of the IPC, a device for evading the application of the provisions of S. 195 of the Code had been adopted and, therefore, Janki Prasad tibrewal and others were tc be acquitted as the complaint, as required by the provisions of S. 195 of the Code, had not been filed and the Magistrate could not have taken cognizance of the offences. This contention was upheld after referring to the decision of the Supreme Court in Basir-ul-Huq v. State of WB AIR. 1953 SC 293. ( 4 ) IT is clear from what is narrated in the preceding paragraphs that the view taken by the magistrate that the facts and circumstances in the case on hand are similar to the facts and circumstances in Janki Prasad tibrewal's Case. (1), is justified. Therefore, it is not strange that the learned Magistrate has adopted the very reasoning available in Janki Prasad Tibrewal's case (1 ). In Durgacharan Naik v. The State of Orissa AIR. 1966 SC. 1776. (1), is justified. Therefore, it is not strange that the learned Magistrate has adopted the very reasoning available in Janki Prasad Tibrewal's case (1 ). In Durgacharan Naik v. The State of Orissa AIR. 1966 SC. 1776. , it has been laid down that the offences under S. 353 and 186 of the IPC are distinct offences because the offence under-S. 353 IPC is cognizable while the offence under S. 186 of the IPC is non-cognizable and the ingredients of the two offiences are different and distinct. Their Lordships of the Supreme Court have clarified the position by observing as follows :" S. 186 IPC, is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under S. 353, IPC, the ingredient of assault or use of criminal force while the public servant is doing his duty as such, is necessary. The quality of the two offences is also different. Sec. 186 occurs in Chap. X of the IPC dealing with contempts of the lawful authority of public servants, while Sec. 353 occurs in Chapter XVI regarding the offences affecting the hubman body". ( 5 ) THEIR Lordships have further on held that S. 195 of the Code does not bar the trial of an accused person for the distinct offence under S. 353 of ipc though it may be practically based on the same facts as for the prosecution under S. 186 IPC. After laying down this position, their Lordships have further on held that the provisions of S. 195 of the Code cannot be evaded by changing the garb or label of the offence covered by the section. The principle in law that the provisions of S. 195 of the Code cannot be evaded by changing the garb or label of an offence covered by the section, has been laid down by the Supreme Court in its earlier decision in Basir-ul- haq's Case (2 ). In Basir-ul-Huq's Case (2) the offences under S. 182, 297 and 500 IPC were examined. The Supreme Court has enunciated the basic position in regard to the application of this principle in paragraphs 9 and 14 of the judgment, as follows :"the statute thus requires that without a complaint in writing of the public servant concerned, no prosecution for an offence under s. 182 can be taken cognizance of. The Supreme Court has enunciated the basic position in regard to the application of this principle in paragraphs 9 and 14 of the judgment, as follows :"the statute thus requires that without a complaint in writing of the public servant concerned, no prosecution for an offence under s. 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is de-barred from taking cognizance in respect of those offences as well. The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made (para 9 ). . . . . . . The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an affence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the ipc, though in truth and substance the offence falls in the category of sections mentioned in Sec. 195 Crlpc. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S. 195, prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it. ". Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S. 195, prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it. ". ( 6 ) IT is not in dispute before me that the facts on which the prosecution case is based, make out an offence under Section 186 of the IPC also, but at the same time because of use of criminal force on the petitioner and causing of hurt to the petitioner in the process of obstructing him from discharging his official functions, a set of facts providing the ingredient necessary for the application of S. 353 IPC, is also available in this case. In other words, in the course of committing an offence under S. 186 IPC, an offence under S. 353 IPC has also been committed as per the facts put in this case. Therefore, the distinction clearly made out by the Supreme court in Durga Charan Naik's case (3) is present in this case. When that is so, the decision of the Patna High Court in Janki Prasad Tibrewal's case (l) has no application. The learned Magistrate has not attempted to understand this distinction by referring to the decisions of the Supreme Court in basir-ul-Huq's case (2) and in Durqacharan Naik's case (3) presumably because the said decisions were not brought to his notice. ( 7 ) IN view of the foregoing reasons, I hold that the order in question cannot be sustained. Hence, I allow the revision petition and set aside the order dt. 5-1-1976 passed by the Judicial Magistrate First Class, Sindgi, in crl Case No. 254 of 1 and 76, acquitting respondent 1-accused, and direct that the case be taken up on file in its original number and disposed of according to law. --- *** --- .