Rajasthan High Court - Jaipur
Joginder Singh vs The State Of Rajasthan on 21 December, 1990
Equivalent citations: 1990(2)WLN375
JUDGMENT B.R. Arora, J.
1. This miscellaneous petition is directed against the order dated August 29,1988, passed by the Munsif and Judicial Magistrate, First Class, Ratangarh, framing charge against the petitioner.
2. The petitioner was the Station House Officer posted at Police. Station, Ratangarh, in the year 1983-84. While he was posted as the Station House Officer, Police Station, Ratangarh, he investigated certain cases and after completion of the investigation, presented the challan in the Court of the Additional Chief Judicial Magistral, Ratangarh, against the accused. The petitioner was cited as a witness in the charges sheet. These were pending for recording the evidence of the petitioner as well as the other witnesses on January 30,1984, and the petitioner was bound-down on the earlier date by the learned Magistrate to appear for giving evidence on January 30,1984. As the petitioner did not appear on January 30, 1984, the learned Additional Chief Judicial Magistrate, therefore, by his order dated January 30, 1984, ordered for summoning the petitioner by issuing boilable warrants in the sum of Rs. 200/- and also ordered for the issuance of notice Under Section 350, Cr.P.C. The Court, also, directed to issue notice why the complaint Under Section 174, I.P.C. and Section 20 of the Police Act may not be filed and ultimately the learned Additional Chief Judicial Magistrate, on November 26, 1984, filed a complaint against the petitioner Under Section 174, I.P.C. and Section 29 of the Police Act in the Court of the Munsif and Judicial Magistrate, Ratangarh. On this complaint, on January 17,1985, the Court took cognizance and issued process. In pursuance to the summons issued to the petitioner, he appeared in the Court on various dates starting from November 20,1985, but the case could not be taken-up, on these dates and ultimately on August 29,1988, the learned Judicial Magistrate framed the charges against the petitioner Under Section 174, I.P.C. and Section 29 of the Police Act. It is against this order, framing the charge that the present miscellaneous petition has been filed.
3. I have heard the learned Counsel for the petitioner and the learned Public Prosecutor.
4. It is contended on behalf of the petitioner that no case for framing the charges Under Section 174, I.P.C. or Section 29 of the Police Act has been made out from the evidence produced by the prosecution and the facts emerging from the complaint, filed by the learned Munsif and Judicial Magistrate, docs not constitute the offence for which the accused-petitioner has been charged-with. He further submits that there is a provision in the Code of Criminal Procedure, i.e., Section 350, which provides a summary procedure for punishment for non-attendance of a witness in obedience of a summon and the case of the accused is covered by Section 350 Cr.P.C. and not Under Section 174, I.P.C. As Section 350 Cr.P.C. is the latter provision than that of Section 174, I.P.C. and both the provisions are enacted by the Parliament, therefore, the latter provision will prevail. The counsel for the petitioner has, also, submitted that the petitioner was in the government service at that time, but now he is sixty years of age and has retired from the government service, and the offence being of trivial nature, the proceedings should, therefore, be quashed. The learned public Prosecutor, on the other hand, submitted that though the provisions of Section 350 Cr.P.C. are the latter provisions but merely on this ground, it cannot be said that the petitioner cannot be prosecuted Under Section 174, I.P.C. According to him, if the same act or omission constitutes an offence under two different laws then the accused can be tried under either of the laws. In support of his contention, he has placed reliance over Section 26 of the General Clauses Act.
5. I have considered the rival submissions made by the counsel for the parties.
6. It is, no doubt, true that if the same act or omission constitutes an offence under two different laws then under which law the accused may be tried, this right vests in the prosecution. The accused cannot claim any right for trial by a particular Court and under a particular Act. Section 26 of the General Clauses Act deals with the cases where the offences are punishable under two or more Acts and it reads as under:
Section 26-Provision as to offence punishable under two or more Enactments.
Where an act of omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of these enactments, but shall not be liable to be punished twice for the same offence.
7. Section 26 of the General Clauses Act, thus, gives power to the prosecution to prosecute an accused under either of the enactments under which the offence but it provides restriction that the person cannot be punished twice for the same offence. Similar provision has been made under Article 20(2) of the Constitution of India and according to which no person shall be prosecuted and punished for the same offence more than once. Though Section 26 of the General Clauses Act does not restrain the prosecution to prosecute the accused for more than once and places a restriction only with regard to only one punishment in one offence, but Article 20(2) of the Constitution of India made a provision that an accused cannot be prosecuted and punished for the same offence more than once. Thus, the prosecution for one offence can be made only once. Now, it is for the prosecution to select as to under which of the Act the accused should be prosecuted or punished. The accused cannot be prosecuted and punished for the same offence more than once. Broadly Speaking, it is a protection against the second and multiple punishments for the same offence, including the protection against re-prosecution after acquittal, re-prosecution after conviction and also a protection for double or multiple, prosecution for the same offence. These protections have been guaranteed under Article 20(2) of the Constitution of India.
8. Under Section 174, I.P.C. non-attendance in obedience to an order from a public servant has been made an offence. Section 174, I.P.C. reads as under:
Section 174-Non-attendance in obedience to an order from public servant,-Whoever, being legally bound to attend in person or by an agent at a certain Place and time in obedience to a summons, notice, order or proclamation proceedings from any public servant, to issue the same Intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time a which it is lawful for him to depart.
Shall be punished with simple imprisonment for a term, which may extend to one month, or with fine, which may extend to five hundred rupees, or with both;
or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
9. Section 350, Cr.P.C, also, provides for the punishment for non-attendance by a witness in a criminal Court to who summon has been issued by the Criminal Court. Section 350, Cr.P.C. reads as under:
350-Summary procedure for punishment for non-attendance by a witness in obedience to summons,-(1) If any witness being summoned to appear before a Criminal Court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the Court before which the witnesses is to appear is satisfied that it is expedient in the interests or justice that such a witness should be tries summarily, the, Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this Section , sentence him to fine not exceeding one hundred rupees.
(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.
10. Looking to the provisions of Section 350, Cr.P.C. and Section 174, I.P.C., it appears that both cover the same field to some extent. While Section 174, l.P.C. deals-with non-attendance in obedience to a summon, notice, order or proceeding from any public servant, legally competent as such to issue the same, covers all the cases where summons, notices etc, have been issued by the public servant and relates to all the proceedings-civil, criminal or revenue etc. While Section 350 Cr.P.C. deals only with the witnesses which were summoned to appear before a criminal Court and neglect or refuse to accept them. Section 174, l.P.C. Is thus, a general provision while Section 350, Cr.P.C. is a special provision made with the object to empower a criminal Court to try witnesses summarily for disobedience of its own summons. The need for enacting this provision was fell on account of the fact that where the accused were in confinement, the cases were adjourned because of non-appearance of the witnesses, which worked a great hardship upon the accused, who were facing trial. Section 350 Cr.P.C. authorizes only the criminal Courts and not any civil or revenue Court or any public servant to try witnesses summarily for disobedience of its summons, while Section 174, l.P.C. Authorizes all the public servant including the civil and revenue Courts.
11. The question for consideration, therefore, is that where two or more laws are applicable in the same case then under which of the laws the accused should be prosecuted and secondly, whether the maxim "GENERALIA SPECIALIBUS NON DEROGANI" applies in the criminal cases or not?. It is not in dispute that there are two provisions-one under the form of Section 174,I.P.C. and the other provided in Section 350, Cr.P.C, under which the petitioner can be prosecuted as prima facie, the offence is covered under either of the laws. Section 174,I.P.C. is general provision while Section 350 Cr.P.C. is a special privision made with an object to empower the criminal Courts to take cognizance of an offence committed in contempt of its authority. The complete procedure has been provided for punishing an accused Under Section 350 Cr.P.C. itself. A right to appeal Under Section 351, Cr.P.C. has, also, been provided against the order of conviction passed Under Section 350 Cr.P.C. Section 351, Cr.P.C. provides a prohibition on the Court to try any person when such offence is committed before himself or in contempt of his authority. Sections 350 to 352, Cr.P.C, thus, provide a complete Code in itself for taking proceedings against the person who has committed an offence for non-attendance as a witness in a criminal proceeding before the Court. Section 174, I.P.C. provides a punishment upto a term which may extend to six months or with fine which may extend to Rs. 1000/-, while Under Section 350, Cr.P.C, the offence is punishable only with a sentence of fine not exceeding Rs. 100/-. It is, no doubt, true that the legislature has power of making special law to attain a particular end and for that purpose, it may select and classify persons and things upon which such laws are to operate. The legislature-, in its wisdom, has enacted Section 350 Cr.P.C. order to cover the cases specified in this Section , that is, the cases where the witnesses, who are summoned to appear before a criminal Court in obedience of the summons, but who without just cause or excuse neglects or refuses to attend the Court in pursuance to the summons or notices issued by the Court. Where the legislature has already made the general provision and afterwards mades a special Act/provision and had in mind its own general provision, then the special provision is an exception to its general provision. Crazies, on Statute Law (7th Edition) at page 222, states:
Act of Parliament sometimes contain general enactments relating to the whole subject-matter of the statute, and also specific and particular enactments relating to certain special matters: and if the general and specific enactments prove to be in any way repugnant to one another, the question will arise, which is to control the other? In Pretty v. Solly, Romilly M.R. stated as follows that he considered to be the rule of construction under such circumstances. The general rules, said, he, which are applicable to particular and general enactments in statutes are very clear; the only difficulty is in their application. The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would over-rule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.
12. In deciding this question, it would, also, be relevant to take-note of, Section 5 of the Indian Penal Code, which reads as under:
Section 5-Certain laws not to be affected by this Act Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers or airmen in the service of the Government of. India or the provisions of any special or local law.
According to Section 5, I.P.C, the Act, i.e. the Indian Penal Code will not effect in cases where provisions of any special or local laws are applicable. A careful consideration of the law on the point and a plain reading of Section 5 of the Indian Penal Code makes it clear that the maxim "GENERALIA SPECIALIBUS NON DEROGANT", i.e., the general provision should yield to special provision, is applicable in the criminal cases, also.
13. While interpreting a provision in a Statute, it may, also, be kept in mind that the legislature inserted a provision in the Statute for a purpose and there is a legislative intention that every part of the Statute should have effect. When the legislature has enacted Section 350 in the Code of Criminal Procedure, with respect to cases covered before the Criminal Courts, knowing fully well that there is a provision already in Section 174, I.P.C, which covers these cases, then the intention behind enacting this provision was that these offences, committed by the witnesses by not appearing in the criminal Courts in spite of the summons received by them, was to take-out these offence from the purview of Section 174, I.P.C, which are covered by Section 350 Cr.P.C Section 350 Cr.P.C, thus, carves-out an exception to Section 174, I.P.C and Section 174, I.P.C. can be reconciled with Section 350, Cr.P.C by holding that Section 174, I.P.C will cover the field only where Section 350 Cr.P.C. does not apply and in cases covered by Section 350 Cr.P.C, they will be dealt Under Section 350 Cr.P.C, and not Under Section 174, I.P.C as Section 350 Cr.P.C. is a special provision. In my view, when the legislature, by law, having dealt-with the same offence as the One punishable Under Section 350, Cr.P.C and Provided for a reduced punishment... the accused must have the benefit of the reduced punishment and should be tried under the provisions which provide reduced punishment. By enacting this new provision Under Section 350, in the Code of Criminal Procedure, 1973 (Section 485-A Cr.P.C of 1898), the legislature has curtailed the operation of the provisions of Section 174,1.P.C The legislature has, thus itself declared and has given its will by enacting Section 350 Cr.P.C. that in cases, covered by Section 350 Cr.P.C, Section 174, I.P.C. will not operate and will operate in the field left-out by Section 350, Cr.P.C.
14. The net result is that when an act or omission is an offence under specific law as well as under the general law and the accused can be tried and punished both under the general law as well as under the special law, then in that case, the accused can be tried only under a special law, i.e., Under Section 350 Cr.P.C in the present case, as it carves-out an exception to the general law and operates in the field which are covered by the provisions of Section 350 Cr.P.C, which is a special law, and the general law, i.e., Section 174, I.P.C will operate only in the field which have been left-out by the special law, i.e., Section 350 Cr.P.C. Where the offence strictly falls within the provisions of Section 350, Cr.P.C. and does not go beyond it, then it would be more appropriate to prosecute the accused under this special provision enacted by the legislature rather than falling back-upon a general law, i.e., Under Section 174, I.P.C., which prescribes a severe punishment, as it is presumed that the legislature intends that special form of punishment is appropriate in special cases.
15. In this view of the matter, the prosecution of the petitioner Under Section 174, I.P.C. is not called-for and the petitioner can be tried only Under Section 350, Cr.P.C.
16. I have, also, looked-into the case file and looking to the facts and circumstances of the case, the ingredients of Section 29 of the Police Act are, also, wanted and the facts emerging from the complaint and the other evidence do not, prima facie, constitute the offence Under Section 29 of the Police Act, for which the accused is charged-with.
17. I, therefore, quash both the charges framed against the petitioner, i.e., Under Section 174, I.P.C. and Section 29 of the Indian Police Act.
18. In the result, this miscellaneous petition Under Section 482, Cr.P.C. is allowed and the charges framed against the petitioner Under Section 174, I.P.C. and Section 29 of the Police Act quashed.