Patna High Court
Janki Prasad Tibrewal And Ors. vs The State Of Bihar on 16 January, 1974
Equivalent citations: 1975CRILJ575
ORDER A.N. Mukharji, J.
1. These two criminal revision applications are taken up together with the consent of the parties and this order will govern both of them.
2. These applications arise out of an order dated 6th of April, 1971, passed by the Sub divisional Magistrate, Madhubani, taking cognizance of offence under Sections 323, 324 and 353 of the Indian Penal Code against the petitioners of both these applications.
3. Facts giving rise to these applications are that petitioner Janki Prasad Tibrewal of Criminal Revision 1171 of 1971 is resident of a place within the jurisdiction of Jhanjharpur Gram Panchayat. The three petitioners of criminal revision 1227 of 1971 are relations of Janki Prasad Tibrewal. It is alleged that Janki Prasad Tibrewal had supported the election of one Shri Narain Kejriwal when there was election of Jhanjharpur Gram Panchayat. Ganga Bishun Sah who was also fighting the election succeeded in being elected as a Sarpanch. The case of the petitioners is that Ganga Bishun Sah instigated one Banwari Prasad Khetan of Jhanjharpur to file a report against Janki Prasad Tibrewal in the Gram panchayat making allegations that this petitioner had abused and slapped him and a case under Sections 323 and 352 of the Indian Penal Code was registered against him. Gram Cutcherry issued summons which was served on Janki Prasad Tibrewal on 26-11-1970 and it is alleged that Janki Prasad Tibrewal did not appear after service of summons against him and so warrant of arrest was issued against him by the Gram Cutcherry. The warrant was sent to Mukhia for execution. The Mukhia of the Gram Panchayat in his turn endorsed the warrant to Dalpati, Shri Ram Lakhan Shar-ma, for execution. Shri Ram Lakhan Sharma went to Janki Prasad Tibrewal on 1-12-1970 for the purpose of executing the warrant. It is alleged that petitioner Janki Prasad Tibrewal became very much annoyed with the Dalpati and abused him in a filthy language and tore away his uniform and prevented the Dalpati from executing the warrant of arrest. The Dalpati thereafter approached the Mukhia and then both of them again came to Janki Prasad Tibrewal for the purpose of executing this warrant. Again, it is alleged, that the Dalpati and the Mukhia were obstructed from exe cuting this warrant and they were assaulted by Janki Prasad Tibrewal and other petitioners of criminal revision 1227 of 1971. The Chief Officer of the Gram Panchayat then lodged a written report at Jhanjharpur police station on 2-12-1970. The police after investigation submitted charge sheet against the petitioners of both these revision applications. The learned Sub divisional Magistrate thereafter by his impugned order dated 6th of April, 1971 has taken cognizance of offences under Sections 3i23, 3'24 and 353 of the Indian Penal Code against the petitioners.
4. Being dissatisfied with the aforesaid order passed by the learned Sub divisional Magistrate, the petitioners have come to this Court in revision. Mr. B. P. Sinha, learned counsel appearing on behalf of the petitioners, has urged that even if the allegations made against the petitioners be accepted at their face value, this would disclose an offence under Section 1S6 of the Indian Penal Code and they can be prosecuted only under this section for voluntarily obstructing any public servant in the discharge of his public duties. Learned counsel' has urged that there has been non-compliance with the " provisions of Section 195 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and as such this proceeding has to be quashed. Section 195 of the Code lays down that no court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. Mr. Sinha contends that in this case the Dalpati lodged information to the police station, but he did not lodge any complaint within the meaning of Section 4(h) of the Code before the Sub-divisional Magistrate and as such under the provision of Section 195 (1) of the Code no court is entitled to take cognizance of an offence under Section L86 of the Indian Penal Code when there is no complaint in writing by any public servant concerned. He has urged that facts alleged in the written report submitted by the Dalpati before the police should be considered as a whole and there should not be any splitting up of the facts for the purpose of allowing the prosecution to circumvent the provision of Section 195 (1) of the Code. His contention is that whatever hurt is alleged to have been committed by these petitioners was in the course of voluntarily obstructing the public servant in the discharge of his duty when he was engaged in executing the warrant of arrest and as such the allegations made out manifestly establish an offence under Section 186 of the Indian Penal Code, and under Section 195 (1) of the Code no court is entitled to take cognizance of such an offence unless a complaint to that effect has been made by a public servant concerned.
5. In support of his contention that the prosecution is not entitled to split the facts of the case for the purpose of circumventing the provisions of Section 195 of the Code, he has placed reliance on the case of Radhey Shyam Gupta v. The State . In this case the accused was being prosecuted under Sections 228 and 353 of the Indian Penal Code for insulting and assaulting a Sub-Registrar and obstructing him from the discharge of his official duty. It was held that the element of insult and assault were so interwoven that they became merged one with the other and the same could not be split up so as to evade the provisions of Section 195 of the Code and as such no proceeding under Section 353 of the Indian Penal Code could be taken against the accused without the written complaint of the public servant. In coming to this decision his Lordship relied on the case of Bashir-ul-Haq v. State of West Bengal , in which the practice of evading the provisions of Section 195 of the Code by resorting to devices and camouflages has been, deprecated. This decision of the Supreme Court was also considered in the case of State v. Kathi Unad Ranning AIR 1955 Sau 10 : 1955 Cri LJ 52. In the Saurashtra case a head constable reported to the Sub Inspector of police complaining of obstruction by the respondents in the discharge of his official duties during the course of which he was assaulted by the respondents. In the Saurashtra case the Magistrate took cognizance of the offence not on the head constable's complaint, but on the basis of the police report and it was held in that case that the Magistrate had no jurisdiction to take cognizance of the offence without a complaint from the public servant concerned.
6. Learned counsel for the petitioners has also placed reliance on the case of Makaradhwaj Sahu v. The State in support of his contentions that the learned Magistrate was not entitled to take cognizance of the offence without a complaint having been filed by the Dalpati himself or by any person to whom he is subordinate. In the Orissa case it appears that a Forester reported the incident to the Divisional Forest Officer who, in his turn, reported to the police who after investigation submitted chargesheet against the accused persons under Section 186 of the Indian Penal Code. It was held that cognizance without complaint in writing of the officer concerned was fatal to the prosecution because of the non-compliance of the provisions of Section 195 (1) of the Code.
7. Considering these decisions it is clear that the real test is whether the facts alleged against an accused disclosed two distinct offences or whether the facts disclosed primarily an offence for which a complaint by a public servant is required, The main allegation which has been made in this case against the petitioners is that they voluntarily obstructed the Dalpati and the Mukhia who are public servants in the discharge of their duties as such. The expression 'obstruct' used in Section 186 of the Indian Penal Code envisages actual resistance and obstacle in the way of public servant and it implies use of criminal force. So if these petitioners are alleged to have assaulted the Dalpati and the Mukhia in the course of voluntarily obstructing the public servant from discharging their duties, the offences under Sections 323, 324 and 353 of the Indian Penal Code are so connected with the primary offence of Section 186 of the Indian Penal Code that it is difficult to say that those offences constituted separate offences other than an offence under Section 186 of the Indian Penal Code. The very fact of obstruction in the instant case implies assault and hurt to the public servant concerned and so the primary offence alleged to have been committed by these petitioners is one under Section 186 of the Indian Penal Code and if cognizance is taken of the offences on the basis of police report only under Sections 323, 324 and 353 of the Indian Penal Code, it will amount to circumventing the provisions of Section 195 of the Code which is not permissible in law.
8. In view of what has been observed above, the cognizance of the offences under Sections 323, 324 and 353 of the Indian Penal Code having been taken in this case without a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate has to be quashed as the learned Magistrate appears to have no jurisdiction to take such cognizance. In the result, both these applications are allowed and the order of the learned Magistrate taking cognizance of the offences under Sections 323, 324 and 353 of the Indian Penal Code against the petitioners is set aside. It is, however, open to the prosecution to regularise the proceedings by filing a fresh complaint after complying with the provisions of Section 195 (1) of the Code.