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1. Heard learned advocate Mr. Ashish M. Dagli for the applicant and learned APP Ms. D.S. Pandit for the respondent No. 1 " State of Gujarat. Notice is served to respondent No. 2.

2. The present respondent No. 2, original complainant " Raghjibhai Hemabhai Patel, being a Chief Officer of Rajula Municipality on 20.10.2003 had been directed by present applicant, original accused, who was President of Rajula Municipality, at 5.30 p.m. to sign a cheque as Chief Officer of Municipality. When complainant, respondent No. 2 herein brought to the notice of the accused that being a Chief Officer, he would sign the second cheque only when first cheque was presented before the Bank. On saying so by the complainant, the accused, present applicant got excited and assaulted Page 15 complainant with a knife and caused hurt as well as administered threat to kill. The complainant, Chief Officer presented a complaint before the Police Station at Rajula and obtained medical treatment. The complaint came to be registered for the charge under Sections 332, 324, 504 and 506(2) of the Indian Penal Code and under Section 135 of the Bombay Police Act. A charge-sheet of abovesaid offences was submitted before the learned Judicial Magistrate (F.C.) at Rajula which was registered as Criminal Case No. 81 of 2004. At the stage of framing of the charge, the accused i.e. present applicant presented an application at Ex.11 before learned Magistrate to drop the proceedings against him by virtue of the provisions of Sections 73 and 254 of the Gujarat Municipality Act as well as according to the accused, the alleged act was committed in pursuance of official duty and no Court can take cognizance of said offences under Section 197 of Code of Criminal Procedure for want of necessary sanction. It was also contended that no Court can take cognizance of the said offence under Section 195(1)(a)(i), as in fact the act alleged was covered under Section 186 of the Indian Penal Code and Section 332 is a broader form of the offence as defined under Section 186 of the Indian Penal Code. The stand was taken that the offence under Section 332 of the Indian Penal Code can only be said to have been committed, if the offence under Section 186 of the Indian Penal code is committed. It was, therefore, urged that the offence of Section 332 includes the offence under Section 186 of the Indian Penal Code and cognizance was clearly barred by Section 195(1)(a)(i) as there was no complaint by concerned public servant as envisaged. The learned Judicial Magistrate (F.C.), Rajula, after relying upon certain decisions, accepted the plea of the accused and came to the conclusion that the offence under Section 332 of the Indian Penal Code was inclusive of an offence as defined under Section 186 of the Indian Penal Code and cognizance of which was barred by Section 195 as aforesaid unless conditions are fulfilled under Section 195 of the Code of Criminal Procedure. It was further observed by the learned Judicial Magistrate (F.C.) that the accused was a public servant by virtue of Section 73 of the Gujarat Municipality Act and also under Section 121 of the Indian Penal Code. Therefore also, taking of cognizance was barred by the Magistrate by virtue of Section 197 of the Code of Criminal Procedure as required sanction was not obtained, even under Section 254 of the Gujarat Municipality Act.

9. While discussing the second aspect of the matter that whether the offence as described under Section 186 of the Indian Penal Code is included in offence under Section 332 of the Indian Penal Code, undoubtedly one cannot by any reasoning come to the conclusion that the offences as described under Section 186 and the offences as described under Section 332 of the Indian Penal Code are the same and the offence described under Section 332 of the Indian Penal Code is a greater form or a broader form of the offence described under Section 186 of the Indian Penal Code. Bare reading of both the provisions make it amply clear that both offences are distinctly different. One is committed, while public servant is obstructed, the other is said to have been committed while public servant is not only obstructed but is hurt by the accused.

6. In the present case, therefore, we are of the opinion that Section 195, Cr.P.C. does not bar the trial of the appellants for the distinct offence under Section 353 of the I. P. C. though it is practically based on the same facts as for the prosecution under Section 186, I.P.C.

8. In the present case, instead of Section 353, the applicant is charged under Section 332 of the Indian Penal Code. Section 353 of the Indian Penal Code provides for using criminal force, while Section 332 of the Indian Penal Code provides for causing hurt to the public servant, while discharging his duties. When the Apex Court has held that Section 353 is distinct offence from Section 186 of the Indian Penal Code, it must be held that Section 332 of the Indian Penal Code is also distinct offence from the offence as described under Section 186 of the Indian Penal Code. The facts of the case also make it abundantly clear that most of the allegations are forming part of ingredients of Section 332 of the Indian Penal Code. Therefore, when no offence under Section 186 of the Indian Penal Code is charged against the accused, the question of bar as placed by the law in the shape of the provision of Section 195(2)(a)(i) would not arise at all. Learned Sessions Judge was correct in coming to the conclusion that the accused was charge-sheeted for the offence punishable under Section 332 of the Indian Penal Code which is separate and different offence from the offence described by Section 186 of the Indian Penal Code and, therefore, the contentions that even for the offence punishable under Section 332 such bar is operating, cannot be accepted. Thus, no interference is required in the decision of the learned Sessions Judge. Even otherwise also, the real test to determine the controversy is to ascertain the intention of the legislature. Had it been so, that is to say that if the offence committed under Section 186 of the Indian Penal Code and the offence committed under Section 332 of the Indian Penal Code were to be considered as connected with each other as contended, then, Section 332 of the Indian Penal Code would have been included in the provision of Section 195(1)(a)(i) of the Code of Criminal Procedure.

9. The decisions which learned Magistrate relied upon and relied upon by the learned advocate for the applicant would not be applicable to the facts of the case, because precisely controversy revolves around in this case is whether provision of Section 332 of the Indian Penal Code would include the offence described under Section 186 of the Indian Penal Code.

10. Needless, it is to observe that the observation made in this order in respect of an application Ex.11 filed by the accused at the juncture of framing of the charge at prima facie stage and the learned Magistrate shall not be influenced during trial by the observation of this Court in this order.