Full Judgment Text
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PETITIONER:
DURGACHARAN NAIK AND ORS.
Vs.
RESPONDENT:
STATE OF ORISSA
DATE OF JUDGMENT:
23/02/1966
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SUBBARAO, K.
CITATION:
1966 AIR 1775 1966 SCR (3) 636
ACT:
Code of Criminal Procedure (Act 5 of 1898), s. 195-Facts
disclosing offences under ss. 186 and 353, Indian Penal
Code--Prosecution for offence under s. 353 without written
complaint of public servant Maintainability.
HEADNOTE:
The appellants were charged with offences under s. 143/402,
186 and 353,-Indian Penal Code for having obstructed and
assaulted two public servant in the discharge of their
public duty of executing the decree of a Civil Court. They
were acquitted by the trial Court, but on appeal, the High
Court convicted them under s. 353, acquitted them under ss.
143/402 and held that the prosecution under s. 186-was
barred by a. 195, Criminal Procedure Code, which requires a
complaint in writing by the public servant before a court
could take cognizance of the offence.
In appeal to this Court, it was contended that the
prosecution under
s. 353, Indian Penal Code, was also barred by s. 195
Criminal Procedure
Code.
HELD : Sections 186 and 353, Indian Penal Code, relate to
two distinct offences and s. 353 is not referred to in s.
195 Cr.P.C. Section 195, Criminal Procedure Code, does not
bar the trial of an accused person for a distinct offence
disclosed by the same set of facts, but which is not within
the ambit of that section, when there is no camouflage or
evasion to circumvent the Section. Therefore the trial of
the appellants for the distinct offence under s. 353 was not
barred though it was based practically on the same facts as
for the prosecution under s. 186, and the High Court was
justified, on the evidence, in interfering with the order of
acquittal passed by the trial Court in regard to that
charge. [640 E, G; 641 E]
Sanwat Singh v. State of Rajasthan [1961] 3. S.C.R. 120 and
Agarwal and Kulkarni v. State of Maharashtra, A.I.R. 1963
S.C. 200, followed.
Basir-ul-Huk V. State of West Bengal [1953], S.C.R. 836 and
Hori Ram Singh v. The Crown, [1939] F.C.R. 159, referred to.
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67 of
1964.
Appeal by special leave from the judgment and order dated
March 2, 1964 of the Orissa High Court in Government Appeal
No. 49 of 1963.
R. K. Garg, S. C. Agarwala, M. K. Ramamurthy and D. P.
Singh, for the appellants.
H. R. Khanna and R. N. Sachthey, for the respondent.,
637
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, from
the judgment of the Orissa High Court dated March 2, 1964 in
Government Appeal No. 49 of 1963 by which the High Court set
aside the order of acquittal passed by the Assistant
Sessions Judge of Puri and convicted the appellants under s.
353 of the Indian Penal Code and sentenced them to 4 months’
rigorous imprisonment.
The decree-holders Panu Sahu and Naha Sahu levied execution
of the decree (Ex. Case No. 125/62) in the Court of the
Munsif, Puri against the appellants and a writ of attachment
of the moveables of the judgment-debtor was issued for
execution through P.W. 2, Sadhu Charan Mohanty, a peon of
the Civil Court, Puri, returnable by August 10, 1962. P.W.
2 reached the village of the judgment-debtors on August 10,
1962 at 10 a.m. with the warrant of attachment and asked the
judgment-debtors to pay the decretal dues of Rs. 952 - 10
nP, and when he was going to seize some of the moveables,
the appellants came there with lathis and resisted him.
P.W. 2 sent a report-Ex. 4-to the Court through Nabaghan
requesting the Court to give necessary police help. Accor-
dingly on the same day the Munsif wrote a letter, Ex. 2,
requesting the Superintendent of Police, Puri to direct the
Officer-in-charge, Sadar Police Station, to give immediate
police help to the process server. In pursuance of this
letter, P.W. 1, the Assistant Sub.Inspector, Sadar Police
Station, Puri was deputed along with two constables
including P.W. 3, Constable no. 613. They went to the
village Sanua where the writ of attachment was to be
executed ’ P.W. 6 the Naib Sarpanch and P.W. 8 the Chowkidar
of the village Chhaitna also accompanied them. On reaching
the spot, they found P.W. 2 sitting in front of the house of
Durga Charan Naik-One of the judgment-debtors. The A.S.I.
then called out Fakir Charan Naik, father of Durga Charan
Naik one of the judgment-debtors, who opened the door and
paid Rs. 952 - 10 nP to the process server, Sadhu Charan
Mohanty and obtained a receipt from him. After the money
was paid, all of them left the village and at about 7 p.m.
while they were crossing a river nearby in a boat, P.W. I
saw the appellant Durga Charan with 10 or 12 persons coming
from the opposite direction. On seeing them, P.W. I
apprehended some trouble and directed P.W. 2 to hand over
the money to the chowkidar, P.W. 8. When all of them got
down from the boat, appellant Durga Charan forcibly dragged
the A.S.I. A number of other persons including the other
appellants assembled at the spot. Durga Charan threatened
to assault the A.S.1 if he did not return the money. Durga
Charan also searched hi pockets and Netrananda threatened
the A.S.I. by saying that he would not leave the place until
the money was returned. When P.W. I wanted to write a
report to his police station, Netrananda MllSup.Cl/66-9
638
obstructed him by holding his right hand. Bipra and Jugal
caught hold of the hands of P.W. 2 and took him to the river
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bank and demanded return of the money. Then at the
intervention of some outsiders the appellants left the spot.
P.W. I lodged the first information report at the police
station next morning and after investigation the appellants
were charge sheeted and committed to the court of Sessions.
The appellants were charged under ss. 143/402, Indian Penal
Code on the allegation that they formed an unlawful assembly
with the common object of committing dacoity. Durga Charan,
Jugal, Bipra along with three others were further charged
under s. 186, Indian Penal Code for having voluntarily
obstructed P.Ws I and 2 in the discharge of their public
duty. Durga Charan and Netrananda were also charged under
s. 353, Indian Penal Code for having used criminal force
against P.W. I and Bipra Charan and Jugal were similarly
charged under s. 353, Indian Penal Code for having used
criminal force against P.W. 2 while both of them were dis-
charging their duty as public servants. The Additional
Sessions Judge acquitted the appellants of all the charges.
The State Government took the matter in appeal to the Orissa
High Court which set aside the order of acquittal with
regard to the 4 appellants and convicted them under s. 353,
Indian Penal Code. The High Court, however, held that there
was no satisfactory evidence to convict the appellants under
ss. 143/402, Indian Penal Code. As regards the charge under
s. 186, Indian Penal Code, the High Court expressed the view
that the prosecution was barred under the provisions of s.
195, Criminal Procedure Code.
In support of this appeal Mr. Garg submitted, in the first
place, that the High Court had no justification for
interfering with the order of acquittal passed by the
Additional Sessions Judge and that ’it has not applied the
correct principle in a matter of this description. Learned
Counsel took us through the judgments of the High Court and
of the trial court and stressed the argument that there was
no evidence upon which the High Court reached the finding
that the appellants used criminal force against P.Ws I and
2. We are unable to accept the argument of Mr. Garg as
correct. The High Court has mainly relied upon the evidence
of P.Ws 1, 2 and 3 and P.Ws 9 to 13 for holding that the
appellants used criminal force against P.Ws I and 2. The
High Court has also observed that P.W. 2 was entrusted with
the execution of the writ of attachment. He was also
entrusted with the official cheque book (Ex. 5) to give the
receipt in token of payment of the decretal dues. In the
course of his official business P.W. 2 was carrying the
money realised from the judgment-debtors for necessary
deposit in Court. So far as P.W. I was concerned, he was
deputed to render assistance to P.W. 2 in executing the writ
of attachment. It is manifest that both P.Ws. I and 2 were
assaulted by the appellants when they
639
were discharging their duties as public servants. The High
Court has also accepted the evidence of P.W. I that Durga
Charan caught hold of his hands and demanded money on the
threat of assault. P.W. 2, the process server stated that
Bipra Charan and Jugal caught hold of his hands and Durga
Charan told him that he would not let anybody go unless the
money was returned. P.W. 2 added that Bipra and Jugal also
snatched away his bag. The High Court analysed the evidence
of P.Ws 9 to 13 and reached the conclusion that the
appellants used criminal force against P.Ws I and 2 in the
course of the performance of their duties. The High Court
has also dealt with the reasoning of the trial court and has
pointed out that the order of acquittal of the appellants
with regard to s. 353, Indian Penal Code was not justified.
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In Sanwat Singh & Others v. State of Rajasthan(1) it was
pointed out by this Court that an appellate court has full
power to review the evidence upon which the order of
acquittal is founded and that the principles laid down by
the Judicial Committee in Sheo Swarup’s case (2) afford a
correct guide for the appellate court’s approach to a case
disposing of such an appeal. It was further observed that
different phraseology used in the judgments of this Court,
such as "substantial and compelling reasons", "good and
sufficiently cogent reasons" and "strong reasons" are not
intended to curtail the undoubted power of an appellate
Court in an appeal against acquittal to review the entire
evidence and to come to its own conclusion, but in doing so
should not only consider every matter on record having a
bearing on the questions of fact and the reasons given by
the Court below in support of its order of acquittal in
arriving at a conclusion on those facts, but should express
the reasons in its judgment, which led it to hold that the
acquittal was not justified. The same opinion has been
expressed by this Court in a later decision in M. G. Agarwal
and M. K. Kulkarni v. State of Maharashtra (3). It was
pointed out in that case that there is no doubt that the
power conferred by cl. (a) of s. 423(1) which deals with an
appeal against an order of acquittal is as wide as the power
conferred by el. (b) which deals with an appeal against an
order of conviction, and so, it is obvious that the High
Court’s powers in dealing with criminal appeals are equally
wide whether the appeal in question is one against acquittal
or against conviction. It was observed that the test
suggested by the expression "substantial and compelling
reasons" for reversing a judgment of acquittal, should not
be construed as a formula which has to be rigidly applied in
every case, and so, it is not necessary that before
reversing a judgment of acquittal, the High Court must
necessarily characterise the findings recorded therein as
perverse. Tested in the light of these principles laid down
by those authorities, we are satisfied that the High Court
was justified, in the present case, in interfering with the
order of acquittal passed by
(1) [1961] 3 S.C.R. 120. (2) 61 I.A. 398.
(3) A.I.R. 1963 S.C. 200.
640
the Additional Sessions Judge with regard to the charge
under S. 353, Indian Penal Code and the judgment of the High
Court is not vitiated by any error of law. We accordingly
hold that Mr. Garg is unable to make good his argument on
this aspect of the case.
We pass on to consider the next contention of the appellants
that the conviction of the appellants under s. 353, Indian
Penal Code is illegal because there is a contravention of
s.195(1) of the Criminal Procedure Code which requires a
complaint in writing by the process server or the A.S.I. It
was submitted that the charge under s. 353, Indian Penal
Code is based upon the same facts as the charge under s.
186, Indian Penal Code and no cognizance could be taken of
the offence under S. 186, Indian Penal Code unless there was
a complaint in writing as required by s. 195(1) of the
Criminal Procedure Code. It was argued that the conviction
under s. 353, Indian Penal Code is tantamount, in the
circumstances of this case, to a circumvention of the
requirement of s. 195(1) of the Criminal Procedure Code and
the conviction of the appellants under S. 353, Indian Penal
Code by the High Court was, therefore, vitiated in law. We
are unable to accept this argument as correct. It is true
that most of the allegations in this case upon which the
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charge under s. 353, Indian Penal Code is based are the same
as those constituting the charge under s. 186, Indian Penal
Code but it cannot be ignored that ss. 186 and 353, Indian
Penal Code relate to two distinct offences and while the
offence under the latter section is a cognizable offence,
the one under the former section is not so. The ingredients
of the two offences are also distinct. Section 186, Indian
Penal Code is applicable to a case where the accused
voluntarily obstructs a public servant in the discharge of
his public functions but under s. 353, Indian Penal Code 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. Section 186
occurs in Ch. X of the Indian Penal Code dealing with
Contempts of the lawful authority of public servants, while
s. 353 occurs in Ch. XVI regarding the offences affecting
the human body. It is well-established that s. 195 of the
Criminal Procedure Code does not bar the trial of an accused
person for a distinct offence disclosed by the same set of
facts but which is not within the ambit of that section. In
Satis Chandra Chakravarti v. Ram Dayal De(1) it was held by
Full Bench of the Calcutta High Court that where the maker
of a single statement is guilty of two distinct offences,
one under s. 21 1, Indian Penal Code, which is an offence
against public justice, and the other an offence under S.
499, wherein the personal element largely predominates, the
offence under the latter section can be taken cognizance of
without the sanction of the court concerned, as the Criminal
Procedure Code has not provided for sanction of court
(1) 24 C.W.N. 982.
641
for taking cognizance of that offence. It was said that the
two offences being fundamentally distinct in nature, could
be separately taken cognizance of. That they are distinct
in character is patent from the fact that the former is made
non-compoundable, while the latter remains compoundable; in
one for the initiation of the proceedings the legislature
requires the sanction of the court under S. 195, Criminal
Procedure Code, while in the other, cognizance can be taken
of the offence on the complaint of the person defamed. It
is pointed out in the Full Bench case that where upon 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 ss. 195 to 199 of the Code of Criminal Procedure. The
decision of the Calcutta case has been quoted with approval
by this Court in Basir-ul-Huq and Others v. The State of
West Bengal (1) in which it was held that if the allegations
made in a false report disclose two distinct offences, one
against a public servant and the other against a private
individual, the latter is not debarred by the provisions of
s. 195, Criminal Procedure Code, from seeking redress for
the offence committed against him.
In the present case, therefore, we are of the opinion that
S. 195, Criminal Procedure Code does not bar the trial of
the appellants for the distinct offence under s. 353 of the
Indian Penal Code, though it is practically based on the
same facts as for the prosecution under s. 186, Indian Penal
Code.
Reference may be made, in this connection, to the decision
of the Federal Court in Hori Ram Singh v. The Crown (2).
The appellant in that case was charged with offences under
ss. 409 and 477-A, Indian Penal Code. The offence under s.
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477-A could not be taken cognizance of without the previous
consent of the Governor under s. 270(1) of the Constitution
Act, while the consent of the Governor was not required for
the institution of the proceedings under s. 409, Indian
Penal Code. The charge was that the accused dishonestly
misappropriated or converted to his own use certain
medicines entrusted to him in his official capacity as a
sub-assistant surgeon in the Punjab Provincial Subordinate
Medical Service. He was further charged that being a public
servant, he wilfully and with intent to defraud omitted to
record certain entries in a stock book of medicines
belonging to the hospital where he was employed and in his
possession. The proceedings under s. 477-A were quashed by
the Federal Court for want of jurisdiction, the consent of
the Governor not having been obtained, but the case was sent
back to the sessions judge for hearing on the merits as
regards the charge under s. 409, Indian Penal
(1) [1953] F.C.R. 159.
(2) [1939] F.C.R. 159.
642
Code, and the order of acquittal passed by the sessions
judge under that charge was set aside. Two distinct
offences having been committed in the same transaction, one
an offence of misappropriation under s. 409 and the other an
offence under s. 477-A which required the sanction of the
Governor, the circumstance that cognizance could not be
taken of the latter offence without such consent was not
considered by the Federal Court as a bar to the trial of the
appellant with respect to the offence under s. 409.
We have expressed the view that s. 195, Criminal Procedure
Code 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.
For instance, 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, on the ground that the latter
offence is a minor one of the same character, or by
describing the offence as 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, Criminal Procedure Code. 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.
On behalf of the appellants Mr. Garg suggested that the
prosecution of the appellants under s. 353, Indian Penal
Code was by way of evasion of the requirements of s. 195,
Criminal Procedure Code. But we are satisfied that there is
no substance in this argument and there is no camouflage or
evasion in the present case.
For these reasons we hold that the judgment of the High
Court dated March 2, 1964 must be affirmed and this appeal
must be dismissed.
Appeal dismissed.
643