Indian Kanoon - Search engine for Indian Law

(1) Petitioners have assailed their being implicated for offences punishable under Section 186/506/323/353/34, Indian Penal Code (In short IPC). The circumstances leading to their implication are that at Bhairon Road-Mathura.Road T'Pouit Constable Hukam Singh was assaulted and criminal force was used and other police officials who arrived at the spot were insulted. Constable Hukam Singh's statement was recorded which ultimately became the FIR. Challan was filed. The learned Metropolitan Magistrate (in short 'MM') took cognizance. It is against the order of summoning and charge that the present petition has been filed. The order of taking cognizance by the learned M.M. has been assailed primarily on the ground that there is a complete bar under Section 195 of the Code of Criminal Procedure (In short the Cr.P.C.) for taking cognizance of an offence punishable under Section 186, Indian Penal Code by the Court. The grievance of the petitioners is that no written complaint as envisaged under Section 195, Criminal Procedure Code . was submitted by Constable Hukam Singh. His statement was under Section 161 Criminal Procedure Code . and not a written complaint. The said statement under Section 161 Criminal Procedure Code . cannot be equated or treated at par to a written complaint stipulated under Section 195 Criminal Procedure Code . No cognizance under Section 195 Criminal Procedure Code . could be taken in the absence of proper written complaint. Hence any action by the Trial Court is bad and liable to be set aside.

(6) Now reverting to the second limb of Mr.Andley's argument that since learned Trial court could not have taken cognizance under Section 186 Indian Penal Code in the absence of a written complaint, hence the case as a whole must go. I find force in this submission of Mr.Andley. In similar circumstances the Madras High Court in the case of P-Btiraj Vs. K-Muniyandi 1995 Criminal Rullings 219 held that if complainant ignored the provisions of Section 195 Criminal Procedure Code . then the entire complaint must go and Court cannot take cognizance. In that eventuality the proceedings as a whole has to be quashed. In P-Btiraj's case complaint was filed consisting of two offences under Section 166 & 186, IPC. In the absence of a written complaint the Court opined that proceedings as a whole are liable to be quashed. Reference can also be made to the decision of Punjab & Haryana High Court in the case of Bhagat Ram V. Sum of Punjab 1991 (1) Crl.LJ. 246, where it has been observed that jurisdiction of the Court to take cognizance of an offence under Section 186, Indian Penal Code, is barred except on a complaint in writing of the public officer concerned. Simple lodging of Fir at the Police Station which resulted in the prosecution of petitioner ultimately and framing of charge for the offences would not amount to filing of complaint in writing by public servant as stipulated under Section 195 Criminal Procedure Code . are liable to be quashed. To the same extent are the observations of Madhya Pradesh High Court in the case of Ashok And Anr. V. The State 1987 Crl. L.J. 1750 where the Court after analysing various provisions of the Code and in particular Section 195 and 461(k) held that the trial for the offences under Sections 186/353, Indian Penal Code, without a special complaint as required under Section 195(l)(a)(i) of Cr.P.C. is illegal. When Magistrate acts in contravention of bar under Section 195 Cr.P.C. the proceedings deserve to be quashed. Relying on these judgments Mr.Andley contended and to my mind, rightly so that since the precondition and mandatory requirement of a written complaint is missing in this case, therfore, the trial court could not have taken cognizance of the offences punishable under Section 186 & 353, Indian Penal Code Such congnizance under Section 186 could not have been taken then the Fir as a Whole must be quashed.

(7) MR.R.D.JOLLY on the other hand laid stress that even if no cognizance could be taken under Section 186 Indian Penal Code yet there is no bar to take cognizance of the other substantive offences with which these petitioners are charger. According to him offences under Section 353/306 Indian Penal Code are substantive offences, hence the proceedings as a whole cannot be quashed. To support his arguments he placed reliance on the decision of Supreme Court in the case of Durgacharan Naik & Ors. V. State of Orissa , where the Apex Court while considering the ingredients of Section 353 & 186, Indian Penal Code, held that these are two distinct offences. The quality of the two offences is also different. There cannot be any quarrel with this proposition, but at the same time the Apex Court in this very case sounded a note of caution when it observed that:- "THE provision of Section 195, Criminal Procedure Code . cannot be evaded by the .device of charging a person with an offence to which that Section do.es 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 Penal Code, though in truth and substance the offence falls in the category of Sections mentioned in Section 195 Criminal Procedure Code . Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.

(8) I think these observations and caution note spell out by the Supreme Court squarely apply to the facts of this case. Can the facts of this case it would hardly be possible to separate the element of insult om the so called assault because the two are so interwoven in the episode, that they become merged one with the other. Hence by adopting and resorting to the device of Section 353 which is a camouflage the prosecution could not evade the provisions of Section 195 Criminal Procedure Code . in this case. The facts have to be considered as a whole. There cannot be splitting up of the facts. Considering the acts as a whole if these disclose an offence for which a special complaint is necessary under the provision of Section 195, Criminal Procedure Code . the Court cannot take cognizance of the case at all unless that special complaint had been filed. In the instant case the very act of obstruction lies in the alleged assault and use of criminal force. In substance the offence in question would fall in the category of Section 195, Criminal Procedure Code . and it was not open to by-pass its provisions even by choosing to prosecute under Section 353/506 Indian Penal Code Mr.R.D.Jolly as pointed above had conceded that charge on the facts of this case under Section 353 Indian Penal Code is not made out because the public servant was not prevented or deterred in the discharge of his official duties.