M. Chacko v. State Of Kerala — 1983 DIGILAW 275 (KER)

Judgment :- The Sub-Inspector of Chathannoor Police Station registered a case as Crime No. 14 of 1982 against the petitioner and 16 others for offences under sections 143, 144, 188, 427, 447 and 506, I.P.C. read with S. 149, I.P.C. and after investigation, laid the final report and the court in due course took cognizance in regard to all the offences and issued process. It is to quash the proceedings that one of the accused has filed this petition under S. 482, Cr.P.C., (for short the 'Code'). 2. Obviously, there was a dispute regarding an alleged pathway between the petitioner and others. It appears, the Revenue Divisional Officer (Obviously the Executive Magistrate) Quilon issued an order on 6-2-1982 to maintain the pathway. The final report states that all the accused violated the order and destroyed the pathway. The final report proceeds to state that the accused trespassed into the land of C.W. 1, destroyed the fence and the compound wall of C.W. 1, levelled that portion with a view to lay a pathway and thereby caused loss to C.W. 1. The other relevant allegations also find a place in the final report. 3. It is argued by the learned counsel for the petitioner that the offence under S. 188, IPC alleged in the final report and in regard to which cognizance has been taken by the Magistrate is one attracting the operation of S. 195(1)(a)(i) of the Code and cognizance could not have been taken except on the complaint in writing by the public servant concerned, i.e. the executive magistrate, who issued the order. According to the learned counsel, since the taking of cognizance was illegal the entire proceedings deserve to be quashed. There is no doubt that the learned Magistrate committed an illegality in taking cognizance in regard to an offence under S. 188 of the Code without a complaint from the executive magistrate and to that extent the proceedings cannot lie. 4. Learned Counsel for the petitioner contends that the proceedings could not be quashed in part and since the prosecution allegations give rise to an offence under S. 188, I.P.C. and other offences and the offences are interlinked with each other, the entire proceedings have to be quashed. This contention is rebutted by the learned Public Prosecutor. 5. 4. Learned Counsel for the petitioner contends that the proceedings could not be quashed in part and since the prosecution allegations give rise to an offence under S. 188, I.P.C. and other offences and the offences are interlinked with each other, the entire proceedings have to be quashed. This contention is rebutted by the learned Public Prosecutor. 5. One of the earliest cases on the point is the one reported in Basir-ul-Huq v. State of West Bengal AIR 1953 SC 293 : (1953 Cri LJ 1232). In that case information was launched with the police to the effect that one Dhirendra Nath Bora had beaten and throttled his mother to death. The body had been taken to the cremation ground. When the funeral pyre was in flames, the informant and others accompanied by the police reached the cremation ground. At the cremation ground again the allegation was repeated with the submission that injuries would be found on the body of the deceased. Thereupon the fire was extinguished and the body was taken out and examined and subjected to post-mortem, but no injuries were found. The investigation disclosed that the information was false. Thereupon, Dhirendra Nath Bora filed a private complaint against the informant and other alleging commission of offences under sections 297 and 500, I.P.C. on the ground that they trespassed into the cremation ground during the performance of the funeral rites and offended religious feelings of the complainant and by imputing murder defamed the complaint. Obviously, the information given to the police gave rise to an offence under S. 182, I.P.C. The question arose whether sanction under S. 195 of the Code was necessary because imputation had been made in the information given to the police also. Referring to S. 195 of the Code of 1898, the Supreme Court observed as follows (Para 9) : "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 debarred from taking cognizance in respect of those offences as well. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is debarred 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." 5A. The Supreme Court also pointed out that the act of trespass was alleged to have been committed subsequent to the making of the false report and that the imputations were made not only in the information to the police but at the cremation ground. In regard to the offence of defamation, the Court observed thus (Para 11) : "it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against the public servant and the other against a private individual, that other is not debarred by the provisions of S. 195 from seeking redress for the offence committed against him .... In view of these provisions, there does not seem in principle any warrant for the proposition that a complaint under S. 499 in such a situation cannot be taken cognizance of unless two persons join in making it, i.e. it can only be considered if both the public servant and the person defamed join making it, otherwise the person defamed is without any redress. The Statute has prescribed distinct procedure for the making of the complaints under these two provisions of the IPC and when the prescribed procedure has been followed, the Court is bound to take cognizance of the offence complained of." 5B. The Statute has prescribed distinct procedure for the making of the complaints under these two provisions of the IPC and when the prescribed procedure has been followed, the Court is bound to take cognizance of the offence complained of." 5B. After referring to a decision of five Judges of the Calcutta High Court in Satish Chandra v. Ram Dayal AIR 1921 Cal 1 : (1921-22 Cri LJ 31) (SB), the Supreme Court observed thus : "It could not be denied that the accused could be tried of charges under S. 182 and 500, I.P.C. separately on same facts provided the public servant as well as the person defamed made complaints. If that is so, there is no reason why one cannot be tried independently of the other so long as the requirements of each are satisfied. Harries C.J. while delivering the Full Bench decision in question examined all the earlier cases of the Calcutta High Court and observed that whereupon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of Sections 195 to 199, Cr.P.C. Sections 195 to 199 deal with the requisites for the prosecution of certain specified offences and the provisions of those sections must be limited to prosecutions for the offences actually indicated. If it was the intention of the legislature to make sanctions or complaints in 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 but it did not." In conclusion, the Supreme Court stated thus (para 14) : "Though, in our judgment, S. 195 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, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. 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 offence 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 Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in S. 195, Cr.P.C. 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 misdescribing it or by putting a wrong label on it." 5C. The Supreme Court referred with approval to a decision of the Federal Court in Hori Ram Singh v. Emperor AIR 1939 FC 43 : (1939-40 Cri LJ 468). The accused in that case was charged for offences under sections 409 and 447-A, I.P.C. The offence under S. 477-A, I.P.C. could not be taken cognizance of without the previous consent of the Governor under S. 270(1) Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under S. 409, I.P.C. The Federal Court quashed the proceeding under S. 477-A, I.P.C. for want of jurisdiction on the ground of lack of consent of the Governor, but directed trial in regard to the charge under S. 409, I.P.C. That was because two distinct offences having been committed in the same transaction, one an offence of misappropriation under S. 409, I.P.C. and the other an offence under S. 477-A, I.P.C. which required the sanction of the Governor, the circumstances that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under S. 409, IPC. 6. The Supreme Court again had occasion to consider the question in Durgacharan v. State of Orissa AIR 1966 SC 1775 : (1966 Cri LJ 1491). 6. The Supreme Court again had occasion to consider the question in Durgacharan v. State of Orissa AIR 1966 SC 1775 : (1966 Cri LJ 1491). The complaint in that case alleged commission of offences under Sections 186 and 353, I.P.C. The prosecution for offence under S. 186, I.P.C. required sanction under S. 195 of the Code; but for prosecution under S. 353, I.P.C. no such sanction was required. The quality of the two offences is different and the offences are also distinct. Dealing with the controversy, the Supreme Court said (Para 8) : "We have expressed the view that S. 195, Cr.P.C., does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of S. 195 cannot be evaded by resorting to devices or camouflage ....." The Court followed the principles laid down in Basir-Ul-Haq's case (1953 Cri LJ 1232) (SC) and Hari Ram Singh's case. (1939-40 Cri LJ 468) (FC). 7. Learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in State of Karnataka v. Hemareddy AIR 1981 SC 1417 : (1981 Cri LJ 1019). One of the accused in the case executed and got registered a sale deed in respect of certain mortgaged property by impersonating the real owner, and thereby committed an offence under S. 467, I.P.C. Another accused, the mortgagee in whose favour the sale deed was brought about, abetted the offence. The mortgagor filed a suit for redemption and subsequently filed a criminal complaint against both the accused. The fabricated sale deed was not produced in court in the suit for redemption. It was held that the person who brought about the sale deed was liable under S. 467, I.P.C. and the mortgagee was liable under S. 467, I.P.C. read with S. 114, I.P.C. on the basis of a private complaint and complaint by court against the mortgagee was not necessary. Since in the sale deed was not produced in court, it could not be said that an offence under S. 193, I.P.C. falling within the scope of S. 195 of the Code had been committed. Incidentally the Supreme Court observed as follows (Para 8) : ".... We hold .... Since in the sale deed was not produced in court, it could not be said that an offence under S. 193, I.P.C. falling within the scope of S. 195 of the Code had been committed. Incidentally the Supreme Court observed as follows (Para 8) : ".... We hold .... that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under S. 195(1)(b) of the Code and an offence for which a complaint of a Court is necessary under that sub-section are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in S. 195(1)(b). Cr.P.C. should be upheld." These observations are relied on by the learned counsel for the petitioner. However, the following observations made in the decision also are relevant. (Para 12) : "The underlying purpose of enacting S. 195(1)(b) and (c) and S. 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of these offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by S. 190, Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by S. 190, Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to the only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court, so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in S. 195(1)(c) only to those cases in which offences specified therein were committed by a party to the proceeding in the character such party." 8. Section 195 of the Code is more or less similar to S. 195 of the Code of 1898. The few changes made are not material for the purpose of this case. This section deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. In such, cases no court shall take cognizance except on the written complaint of the public servant or the Court, as the case may be. This provision is an exception to the general rule that any person having knowledge of the commission of an offence may set the criminal law in motion by a complaint, even though he is not personally interested or affected by the offence. If cognizance is taken contrary to the provisions of this section, it will be illegal and without jurisdiction. The provision is intended to be to safeguard against reckless and harassing prosecutions by private individuals or the police in regard to offences affecting administration of justice or contempt of lawful authority; the legislative object is to reduce to the minimum the possibility of purposeless prosecution at the instance of opponents. The provision is intended to be to safeguard against reckless and harassing prosecutions by private individuals or the police in regard to offences affecting administration of justice or contempt of lawful authority; the legislative object is to reduce to the minimum the possibility of purposeless prosecution at the instance of opponents. The dignity and prestige of courts and lawful authorities must be upheld by the respective officers and it would not be conducive to public interest to leave it to private parties to prosecute the culprits involved in such offences. The field should not be sullied by the operation of private passions or thirst for personal revenge. The authorities concerned can be expected to act responsibly and initiate prosecution only when necessary. 9. The bar under S. 195 of the Code must be allowed full play, but only in cases falling within the scope of that section. The facts in a given case may disclose commission of several offences, some falling within the scope of S. 195 of the Code and others not so; in regard to the latter offences there is no reason why there could not be private prosecutions. The law is not that once the facts of a given case disclose an offence falling within the scope of S. 195 of the Code and also other offences, prosecution can be launched regarding the latter only on the complaint of the court or the lawful authority concerned. To hold otherwise would be to extend the scope of S. 195 of the Code to regions and horizons not contemplated by the legislature. The facts in a case may give rise to distinct offences including offences against the authority of public servants or against public justice, as also offences against private individuals : the bar under S. 195 of the Code cannot, in such circumstances, affect the offences other than those against public authority or public justice. Prosecution for such offences does not require the instrumentality of the public authority or court. However, the position may be different when during the course of the same transaction offences falling within the two categories are committed. Prosecution for such offences does not require the instrumentality of the public authority or court. However, the position may be different when during the course of the same transaction offences falling within the two categories are committed. In such cases, it may not be possible to split up the transaction, and to hold that there can be valid prosecution for offences not mentioned in S. 195 of the Code, without written complaint of the public authority or the court, as the case may be. Courts must be able to see through any attempt to render S. 195 of the Code nugatory by hiding the real nature of the transaction by verbal jugglery. If in principle and substance the offence alleged falls within the categories mentioned in S. 195, the operation of the bar cannot be avoided; if in essence the alleged offence falls outside the categories, the bar would not operate. At the same time, if the facts give rise to distinct offences, some attracting the operation of S. 195 and others not so, the bar can operate only regarding the former and not regarding the letter. 10. The final report in this case refers to two distinct set of facts. The first set of facts relate to the alleged violation of the order of the public servant (or court) not to destroy the pathway in dispute. The averments in this regard disclose an offence punishable under S. 188, I.P.C. prosecution for which can be initiated only on the written complaint of the authority concerned. Since the prosecution for offence under S. 188, I.P.C. was not initiated on the written complaint of the authority concerned, the proceedings in this case to that extent cannot stand. At the same time, at least offences alleged under sections 427 and 447, I.P.C. have nothing to do with the order of the authority or the violation thereof. The averments in this regard relate to what is alleged to be the private property of CW. 1, and involve trespass into private land and commission of mischief in regard to the compound wall and fence of CW. 1. These are offences against CW. 1 and the prosecution could be initiated by CW. 1 either directly or though the instrumentality of the police and that is what has been done in the instant case. 1, and involve trespass into private land and commission of mischief in regard to the compound wall and fence of CW. 1. These are offences against CW. 1 and the prosecution could be initiated by CW. 1 either directly or though the instrumentality of the police and that is what has been done in the instant case. The two sets of offences are distinct offences arising from distinct averments and facts. This is not a case where during the course of a single transaction offences falling within the two categories are committed. In this case there are two different transactions, may be committed successively, nevertheless separately and distinctively. Therefore, there can be a bifurcation for the purpose of seeing whether the initiation of the prosecution is legally sustainable. I hold that except in regard to the offences under S. 188, I.P.C. the prosecution in sustainable. This is not a case where the entire proceedings have to be quashed. In the result, the prosecution launched in regard to the offence under S. 188, I.P.C. is quashed. The proceedings in regard to the other offences are lawful and will continue. The Crl.M.C. is allowed in part as indicated above. Petition allowed partly.