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(ii) Section 186 IPC, defines punishment for obstructing any public .

servant in discharging his public functions and Section 195 Cr.P.C. says that cognizance could have been taken only if the complaint is made in writing and that no Court shall take cognizance of an offence under Section 186 IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate

11. In Durgacharan Naik v. State of Orissa, AIR 1966 Supreme Court 1775, the Hon'ble Supreme Court needed to deal with the question whether the prosecution of the accused therein for the offences under Sections 186 and 353, Indian Penal Code, in the absence of the complaint envisaged under Section 195(1)(a) of the Code of Criminal Procedure was valid and the Supreme Court Holds:

"5. We pass on to consider the next contention of the appellants that the conviction of the appellant under Section 353, Indian Penal Code is illegal because there is contravention of Section 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 Section 353, Indian Penal Code is based upon the same facts as the charge under Section 186, Indian Penal Code and no cognizance could be taken of the offence under Section 186 Indian Penal Code unless there was a complaint in writing as required by Section 195(1) of the Criminal Procedure Code.It was argued that the conviction under Section 353, Indian Penal Code is tantamount, in the circumstances of this case, to a circumvention of the requirement of Section 195(1) of the ...8...

Criminal Procedure Code.and the conviction of the appellants under Section 353 Indian Penal Code by the High Court was, therefore, .

vitiated in law. We are unable to accept to this argument as correct. It is true that most of the allegations in this case upon which the charge under Section 353, Indian Penal Code is based are the same as those constituting the charge under Section 186, Indian Penal Code but it cannot be ignored that Sections 186 and 353, Indian Penal Code relate to two distinct offences 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 Section 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing 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 Section 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well established that Section 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."

prosecution for the offence under Section 186, Indian Penal Code, 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."

13. There is another fatal defect in the prosecution case. A bare perusal of the notice of accusation reveals the accusation of only of non-cognizable offences. Both Sections 186 and 189 IPC, are Non-Cognizable Offences, which also means, that investigation could not have been carried out by the Investigation officer, without resorting to the provisions of Section 155(2) Cr.P.C.