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1995 DIGILAW 693 (PAT)

Bhagwan Sao v. State Of Bihar

1995-12-13

P.K.SARIN

body1995
Judgment P.K.Sarin, J. 1. This criminal revision application is directed against the judgment and order dated 6th January, 1989, passed by the 7th Additional Sessions Judge, Paiamau at Deltonganj dismissing the petitioners criminal appeal No. 32/87 and affirming the judgment of conviction and sentence passed under Sections 353 and 186 of the Indian Penal Code on 31-3-1987 in G.R. Case No. 288/83 by the 2nd Judicial Magistrate, Latehar with modification in sentence. 2. The petitioners were prosecuted on the basis of charge-sheet submitted by police. The First Information Report of the case was registered on the basis of the written report (Ext. 2) by Shri Geeta Nand Jha (PW 9) Nazir Civil Court, Latehar. The prosecution case, in brief, was that on 25-7-1983 at about 9 a.m. Shri Geeta Nand Jha (PW 9) had gone to the house of petitioner No. 1 at Latehar along with Shri Chamari Thakur (PW 3) the decree holder of Execution Case No. 9/67 and decree holders two sons Naresh Thakur (PW 1), Suresh Thakur (PW 2), Court peon Nand Lal Baitha (PW 5) and Gupteshwar Ram (PW 6) to execute a writ of delivery of possession. He found the main door of the house to be closed from inside. It was not opened by the inmates of the house on the ground that male members were not present. It was alleged that in the mean time petitioner No. 1 arrived there and when he was shown and explained about the writ of delivery of possession he refused to get the door opened whereupon the Nazir (PW 9) asked the decree holder to break-open the door and accordingly the decree holder and his sons proceeded to break open the door but they were prevented by petitioner Nos. 1 and 2. It was further alleged that petitioner Nos. 2 and 3 hurled abuses. Apprehending breach of peace shri Geeta Nand Jha (PW 9) returned without executing the writ of delivery of possession. 3. The petitioners denied the charges and alleged false implication. 4. The prosecution examined Naresh Thakur (PW 1), Suresh Thakur (PW 2), Chamari Thakur (PW 3), Imil Lakra (PW 4), Nand Lal Baitha, court peon, (PW 5), Gupteshwar Ram (PW 6), Alber Khusar (PW 7), Allauddin Khan (PW 8) and Shri Geeta Nand Jha, court Nazir (PW 9). Out of them PWs 4, 7and 8 were formal witnesses. 5. 4. The prosecution examined Naresh Thakur (PW 1), Suresh Thakur (PW 2), Chamari Thakur (PW 3), Imil Lakra (PW 4), Nand Lal Baitha, court peon, (PW 5), Gupteshwar Ram (PW 6), Alber Khusar (PW 7), Allauddin Khan (PW 8) and Shri Geeta Nand Jha, court Nazir (PW 9). Out of them PWs 4, 7and 8 were formal witnesses. 5. The trial court found the charges to be proved and it convicted the petitioners for the offences punishable under Sections 353 and 185 of the Indian Penal Code. However, no sentence was passed against petitioner No. 3 and the was released under probation of offenders Act on execution of bond for maintaining peace for 2-1/2 years. The petitioners 1 and 2 were sentenced to 8 months simple imprisonment and a fine of Rs. 500 and in default to undergo simple imprisoment for four months under Section 353 of the Indian Penal Code. No separate sentence was passed for the offence punishable under Section 186 of the Indian Penal Code. The petitioners criminal appeal was dismissed by the 7th Additional Sessions Judge, Palamau at Deltonganj who affirmed the conviction of the appellants. However, the appellate court reduced the sentence of imprisonment to three months in respect of petitioners 1 and 2 and also modified the order regarding petitioner No. 3 in this manner that she was directed to execute bond of Rs. 500 with one surety for maintaining peace and good behaviour for a period of one year. Feeling aggrieved the petitioners have preferred this revision. 6. The learned counsel for the petitioner has contended that the entrie FIR and conviction of the petitioners on the basis of such trial is illegal inasmuch as no complaint for the offence punishable under Sections 186 of the I.P.C. was filed by the public servant concerned and the court could not have taken cognizance of the offence on the basis of charge-sheet submitted by the police. The learned counsel for the petitioners has referred to Section 193 of the Code of Criminal Procedure. 7. Section 195 (1) (a) (i) provides that no court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Godc except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. 7. Section 195 (1) (a) (i) provides that no court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Godc except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Submission of charge sheet by police under Section 173 of the Code of Criminal Procedure is not a complaint. Sec. 2 (d) of the Code of Criminal Procedure defines "complaint" to means any allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code, that some person whether known or unknown, has committed an offence, but does not include a police report. In view of this definition of the "complaint" the charage-sheet submitted by the police cannot be said to be a complaint as envisaged by Section 195 of the Gode of Criminal Procedure. The cases of Raj Kumar Gupta V/s. State of Bihar, 1988 East CrC 567 : 1968 BLJ 277, and Lajja Ram V/s. State, 1952 CrLJ 821, may be cited in support of the said view. It has been held in the said cases that the cognizance on the police report for offence punishable under Section 186 of the Indian Penal Code is bad in law. If the cognizance is bad the entire proceeding bated on such cognizance also became illegal and consequently the conviction of the petitioners under Section 186, IPC on the basis of cognizance taken on police report is bad in law and cannot be sustained. As regards the offence under Section 353, IPC the trial for the same also appears to be vitiated. The offence under Sections 353 and 186 of the IPC are over lapping. It has been held by this Cour in the case of Janki Prasad Tihrewal and Murari Prasad Tibrewal and others V/s. The State of Bihar, 1974/(2) BBCJ 215, that in the case of obstruction, assault and hurt to the public servant concerned the primary offence is alleged to have been committed under Section 186 of the Indian Penal Code and if the cognizance is taken of the offence on the basis of the police report only under Sections 323, 324 and 353 of the IPC, it would amount to circum- vanting the Provisions of Section 195 of the Code of Criminal Procedure which is not permissible in law. It was further held that the cognizance having been taken, without the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate, is with- out jurisdiction. In this view of the law the conviction of the petitioners under Section 352, IPC can also be not sustained. 8. The learned counsel for the petitioner has further pointed out that the evidence on record shows that whatever obstruction was made in respect of breaking open the door it was directed against the decree holder his sons and not against the Nazir of the Court. The learned counsel for the petitioners has drawn the attention of the Court to the statement of the Nazir (PW 9) where it has stated that he had asked orally the decree holder to break open the lock, PW 9 stated that when the son of decree holder proceeded to break open the door he was asked (by the petitioners) not to intervane in the matter whereupon he withdrew from that place. PW 9 further stated that he felt that there may be breach of peace as such he returned from that place. In view of this statement also there appears to be no case of assault or use of criminal force againt the Nazir. In this view the offence punishable under Section 353, IPC would not be said to have been proved beyond reasonable doubt. 9. The trial court as well as the appellate court have not appreciated the legal aspect of the case that the cognizance of the offence on police report itself is bad and the entire trial based on such report is vitiated. They also did not appreciate that adding an offence punishable under Section 353, IPC was only in order to circumvent the procedure when the case clearly fell within the purview of Section 186 of the IPC, They also failed to appreciate that according to the statement of PW 9, Shri Geeta Nand Jha himself no assault or abuses is directed against him. The order of conviction and sentence passed by the trial court as affirmed by the appellate court cannot be sustained. 10. The Criminal Revision application is allowed. The judgment of the appellate court as well as the trial court regarding conviction and sentence passed against the petitioners under Sections 186 and 353, IPC are set aside. The order of conviction and sentence passed by the trial court as affirmed by the appellate court cannot be sustained. 10. The Criminal Revision application is allowed. The judgment of the appellate court as well as the trial court regarding conviction and sentence passed against the petitioners under Sections 186 and 353, IPC are set aside. The petitioners are acquitted of the said charges. The liabilities under the bail bonds are discharged.