Durgacharan Naik & Ors Vs. State of
Orissa [1966] INSC 52 (23 February 1966)
23/02/1966 RAMASWAMI, V.
RAMASWAMI, V.
SUBBARAO, K.
CITATION: 1966 AIR 1775 1966 SCR (3) 636
ACT:
Code of Criminal Procedure (Act 5 of 1898),
s. 195-Facts disclosing offences under ss. 186 and 353, Indian Penal
Code--Prosecution for offence under s. 353 without written complaint of public
servant Maintainability.
HEADNOTE:
The appellants were charged with offences
under s. 143/402, 186 and 353,-Indian Penal Code for having obstructed and
assaulted two public servant in the discharge of their public duty of executing
the decree of a Civil Court. They were acquitted by the trial Court, but on
appeal, the High Court convicted them under s. 353, acquitted them under ss. 143/402
and held that the prosecution under s. 186-was barred by a. 195, Criminal
Procedure Code, which requires a complaint in writing by the public servant
before a court could take cognizance of the offence.
In appeal to this Court, it was contended
that the prosecution under s. 353, Indian Penal Code, was also barred by s. 195
Criminal Procedure Code.
HELD : Sections 186 and 353, Indian Penal
Code, relate to two distinct offences and s. 353 is not referred to in s. 195
Cr.P.C. Section 195, 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, when there is no camouflage or
evasion to circumvent the Section. Therefore the trial of the appellants for
the distinct offence under s. 353 was not barred though it was based
practically on the same facts as for the prosecution under s. 186, and the High
Court was justified, on the evidence, in interfering with the order of
acquittal passed by the trial Court in regard to that charge. [640 E, G; 641 E]
Sanwat Singh v. State of Rajasthan [1961] 3. S.C.R. 120 and Agarwal and
Kulkarni v. State of Maharashtra, A.I.R. 1963 S.C. 200, followed.
Basir-ul-Huk V. State of West Bengal [1953],
S.C.R. 836 and Hori Ram Singh v. The Crown, [1939] F.C.R. 159, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 67 of 1964.
Appeal by special leave from the judgment and
order dated March 2, 1964 of the Orissa High Court in Government Appeal No. 49
of 1963.
R. K. Garg, S. C. Agarwala, M. K. Ramamurthy
and D. P. Singh, for the appellants.
H. R. Khanna and R. N. Sachthey, for the
respondent., 637 The Judgment of the Court was delivered by Ramaswami, J. This
appeal is brought, by special leave, from the judgment of the Orissa High Court
dated March 2, 1964 in Government Appeal No. 49 of 1963 by which the High Court
set aside the order of acquittal passed by the Assistant Sessions Judge of Puri
and convicted the appellants under s. 353 of the Indian Penal Code and
sentenced them to 4 months' rigorous imprisonment.
The decree-holders Panu Sahu and Naha Sahu
levied execution of the decree (Ex. Case No. 125/62) in the Court of the
Munsif, Puri against the appellants and a writ of attachment of the moveables
of the judgment-debtor was issued for execution through P.W. 2, Sadhu Charan
Mohanty, a peon of the Civil Court, Puri, returnable by August 10, 1962. P.W.
2 reached the village of the judgment-debtors
on August 10, 1962 at 10 a.m. with the warrant of attachment and asked the
judgment-debtors to pay the decretal dues of Rs. 952 - 10 nP, and when he was
going to seize some of the moveables, the appellants came there with lathis and
resisted him.
P.W. 2 sent a report-Ex. 4-to the Court
through Nabaghan requesting the Court to give necessary police help. Accor-
dingly on the same day the Munsif wrote a letter, Ex. 2, requesting the
Superintendent of Police, Puri to direct the Officer-in-charge, Sadar Police
Station, to give immediate police help to the process server. In pursuance of
this letter, P.W. 1, the Assistant Sub.Inspector, Sadar Police Station, Puri
was deputed along with two constables including P.W. 3, Constable no. 613. They
went to the village Sanua where the writ of attachment was to be executed '
P.W. 6 the Naib Sarpanch and P.W. 8 the Chowkidar of the village Chhaitna also
accompanied them. On reaching the spot, they found P.W. 2 sitting in front of
the house of Durga Charan Naik-One of the judgment-debtors. The A.S.I.
then called out Fakir Charan Naik, father of
Durga Charan Naik one of the judgment-debtors, who opened the door and paid Rs.
952 - 10 nP to the process server, Sadhu Charan Mohanty and obtained a receipt
from him. After the money was paid, all of them left the village and at about 7
p.m.
while they were crossing a river nearby in a
boat, P.W. I saw the appellant Durga Charan with 10 or 12 persons coming from
the opposite direction. On seeing them, P.W. I apprehended some trouble and
directed P.W. 2 to hand over the money to the chowkidar, P.W. 8. When all of
them got down from the boat, appellant Durga Charan forcibly dragged the A.S.I.
A number of other persons including the other appellants assembled at the spot.
Durga Charan threatened to assault the A.S.1 if he did not return the money.
Durga Charan also searched hi pockets and Netrananda threatened the A.S.I. by
saying that he would not leave the place until the money was returned. When
P.W. I wanted to write a report to his police station, Netrananda
MllSup.Cl/66-9 638 obstructed him by holding his right hand. Bipra and Jugal
caught hold of the hands of P.W. 2 and took him to the river bank and demanded
return of the money. Then at the intervention of some outsiders the appellants
left the spot.
P.W. I lodged the first information report at
the police station next morning and after investigation the appellants were
charge sheeted and committed to the court of Sessions.
The appellants were charged under ss.
143/402, Indian Penal Code on the allegation that they formed an unlawful
assembly with the common object of committing dacoity. Durga Charan, Jugal,
Bipra along with three others were further charged under s. 186, Indian Penal
Code for having voluntarily obstructed P.Ws I and 2 in the discharge of their
public duty. Durga Charan and Netrananda were also charged under s. 353, Indian
Penal Code for having used criminal force against P.W. I and Bipra Charan and
Jugal were similarly charged under s. 353, Indian Penal Code for having used
criminal force against P.W. 2 while both of them were dis- charging their duty
as public servants. The Additional Sessions Judge acquitted the appellants of
all the charges.
The State Government took the matter in
appeal to the Orissa High Court which set aside the order of acquittal with
regard to the 4 appellants and convicted them under s. 353, Indian Penal Code.
The High Court, however, held that there was no satisfactory evidence to
convict the appellants under ss. 143/402, Indian Penal Code. As regards the
charge under s. 186, Indian Penal Code, the High Court expressed the view that
the prosecution was barred under the provisions of s. 195, Criminal Procedure
Code.
In support of this appeal Mr. Garg submitted,
in the first place, that the High Court had no justification for interfering with
the order of acquittal passed by the Additional Sessions Judge and that 'it has
not applied the correct principle in a matter of this description. Learned
Counsel took us through the judgments of the High Court and of the trial court
and stressed the argument that there was no evidence upon which the High Court
reached the finding that the appellants used criminal force against P.Ws I and
2. We are unable to accept the argument of
Mr. Garg as correct. The High Court has mainly relied upon the evidence of P.Ws
1, 2 and 3 and P.Ws 9 to 13 for holding that the appellants used criminal force
against P.Ws I and 2. The High Court has also observed that P.W. 2 was
entrusted with the execution of the writ of attachment. He was also entrusted
with the official cheque book (Ex. 5) to give the receipt in token of payment
of the decretal dues. In the course of his official business P.W. 2 was
carrying the money realised from the judgment-debtors for necessary deposit in
Court. So far as P.W. I was concerned, he was deputed to render assistance to
P.W. 2 in executing the writ of attachment. It is manifest that both P.Ws. I
and 2 were assaulted by the appellants when they 639 were discharging their
duties as public servants. The High Court has also accepted the evidence of
P.W. I that Durga Charan caught hold of his hands and demanded money on the
threat of assault. P.W. 2, the process server stated that Bipra Charan and
Jugal caught hold of his hands and Durga Charan told him that he would not let
anybody go unless the money was returned. P.W. 2 added that Bipra and Jugal
also snatched away his bag. The High Court analysed the evidence of P.Ws 9 to
13 and reached the conclusion that the appellants used criminal force against
P.Ws I and 2 in the course of the performance of their duties. The High Court
has also dealt with the reasoning of the trial court and has pointed out that
the order of acquittal of the appellants with regard to s. 353, Indian Penal
Code was not justified.
In Sanwat Singh & Others v. State of
Rajasthan(1) it was pointed out by this Court that an appellate court has full
power to review the evidence upon which the order of acquittal is founded and
that the principles laid down by the Judicial Committee in Sheo Swarup's case
(2) afford a correct guide for the appellate court's approach to a case
disposing of such an appeal. It was further observed that different phraseology
used in the judgments of this Court, such as "substantial and compelling
reasons", "good and sufficiently cogent reasons" and "strong
reasons" are not intended to curtail the undoubted power of an appellate
Court in an appeal against acquittal to review the entire evidence and to come
to its own conclusion, but in doing so should not only consider every matter on
record having a bearing on the questions of fact and the reasons given by the
Court below in support of its order of acquittal in arriving at a conclusion on
those facts, but should express the reasons in its judgment, which led it to
hold that the acquittal was not justified. The same opinion has been expressed
by this Court in a later decision in M. G. Agarwal and M. K. Kulkarni v. State
of Maharashtra (3). It was pointed out in that case that there is no doubt that
the power conferred by cl. (a) of s. 423(1) which deals with an appeal against
an order of acquittal is as wide as the power conferred by el. (b) which deals
with an appeal against an order of conviction, and so, it is obvious that the
High Court's powers in dealing with criminal appeals are equally wide whether the
appeal in question is one against acquittal or against conviction. It was
observed that the test suggested by the expression "substantial and
compelling reasons" for reversing a judgment of acquittal, should not be
construed as a formula which has to be rigidly applied in every case, and so,
it is not necessary that before reversing a judgment of acquittal, the High
Court must necessarily characterise the findings recorded therein as perverse.
Tested in the light of these principles laid down by those authorities, we are
satisfied that the High Court was justified, in the present case, in
interfering with the order of acquittal passed by (1) [1961] 3 S.C.R. 120. (2)
61 I.A. 398.
(3) A.I.R. 1963 S.C. 200.
640 the Additional Sessions Judge with regard
to the charge under S. 353, Indian Penal Code and the judgment of the High
Court is not vitiated by any error of law. We accordingly hold that Mr. Garg is
unable to make good his argument on this aspect of the case.
We pass on to consider the next contention of
the appellants that the conviction of the appellants under s. 353, Indian Penal
Code is illegal because there is a contravention of s.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 s. 353, Indian Penal Code is
based upon the same facts as the charge under s.
186, Indian Penal Code and no cognizance
could be taken of the offence under S. 186, Indian Penal Code unless there was
a complaint in writing as required by s. 195(1) of the Criminal Procedure Code.
It was argued that the conviction under s. 353, Indian Penal Code is
tantamount, in the circumstances of this case, to a circumvention of the
requirement of s. 195(1) of the Criminal Procedure Code and the conviction of
the appellants under S. 353, Indian Penal Code by the High Court was,
therefore, vitiated in law. We are unable to accept this argument as correct.
It is true that most of the allegations in this case upon which the charge
under s. 353, Indian Penal Code is based are the same as those constituting the
charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186
and 353, Indian Penal Code relate to two distinct offences and 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 s. 353, Indian Penal Code the ingredient of assault or use
of criminal force while the public servant is doing his 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 s. 353 occurs in Ch. XVI regarding the
offences affecting the human body. It is well-established that s. 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. In Satis Chandra Chakravarti v. Ram Dayal De(1) it was
held by Full Bench of the Calcutta High Court that where the maker of a single
statement is guilty of two distinct offences, one under s. 21 1, Indian Penal
Code, which is an offence against public justice, and the other an offence
under S. 499, wherein the personal element largely predominates, the offence
under the latter section can be taken cognizance of without the sanction of the
court concerned, as the Criminal Procedure Code has not provided for sanction
of court (1) 24 C.W.N. 982.
641 for taking cognizance of that offence. It
was said that the two offences being fundamentally distinct in nature, could be
separately taken cognizance of. That they are distinct in character is patent
from the fact that the former is made non-compoundable, while the latter
remains compoundable; in one for the initiation of the proceedings the legislature
requires the sanction of the court under S. 195, Criminal Procedure Code, while
in the other, cognizance can be taken of the offence on the complaint of the
person defamed. It is pointed out in the Full Bench case that where upon the
facts the commission of several offences is disclosed some of which require
sanction and others do not, it is open to the complainant to proceed in respect
of those only which do not require sanction; because to hold otherwise would
amount to legislating and adding very materially to the provisions of ss. 195
to 199 of the Code of Criminal Procedure. The decision of the Calcutta case has
been quoted with approval by this Court in Basir-ul-Huq and Others v. The State
of West Bengal (1) in which it was held that if the allegations made in a false
report disclose two distinct offences, one against a public servant and the
other against a private individual, the latter is not debarred by the
provisions of s. 195, Criminal Procedure Code, from seeking redress for the
offence committed against him.
In the present case, therefore, we are of the
opinion that S. 195, Criminal Procedure Code does not bar the trial of the
appellants for the distinct offence under s. 353 of the Indian Penal Code,
though it is practically based on the same facts as for the prosecution under
s. 186, Indian Penal Code.
Reference may be made, in this connection, to
the decision of the Federal Court in Hori Ram Singh v. The Crown (2).
The appellant in that case was charged with
offences under ss. 409 and 477-A, Indian Penal Code. The offence under s. 477-A
could not be taken cognizance of without the previous consent of the Governor
under s. 270(1) of the Constitution Act, while the consent of the Governor was
not required for the institution of the proceedings under s. 409, Indian Penal
Code. The charge was that the accused dishonestly misappropriated or converted
to his own use certain medicines entrusted to him in his official capacity as a
sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service. He
was further charged that being a public servant, he wilfully and with intent to
defraud omitted to record certain entries in a stock book of medicines
belonging to the hospital where he was employed and in his possession. The
proceedings under s. 477-A were quashed by the Federal Court for want of
jurisdiction, the consent of the Governor not having been obtained, but the
case was sent back to the sessions judge for hearing on the merits as regards
the charge under s. 409, Indian Penal (1) [1953] F.C.R. 159.
(2) [1939] F.C.R. 159.
642 Code, and the order of acquittal passed
by the sessions judge under that charge was set aside. Two distinct offences
having been committed in the same transaction, one an offence of
misappropriation under s. 409 and the other an offence under s. 477-A which
required the sanction of the Governor, the circumstance that cognizance could
not be taken of the latter offence without such consent was not considered by
the Federal Court as a bar to the trial of the appellant with respect to the
offence under s. 409.
We have expressed the view that s. 195,
Criminal Procedure Code does not bar the trial of an accused person for a
distinct offence disclosed by the same or slightly different set of facts and
which is not included within the ambit of the section, but we must point out
that the provisions of S. 195 cannot be evaded by resorting to devices or
camouflage.
For instance, the provisions of the section
cannot be evaded by the device of charging a person with an offence to which
that section does 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 Indian Penal Code, though in truth and substance the offence
falls in the category of sections mentioned in s. 195, Criminal Procedure Code.
Merely by changing the garb or label of an offence which is essentially an
offence covered by the provisions of s. 195 prosecution for such an offence
cannot be taken cognizance of by mis describing it or by putting a wrong label
on it.
On behalf of the appellants Mr. Garg
suggested that the prosecution of the appellants under s. 353, Indian Penal
Code was by way of evasion of the requirements of s. 195, Criminal Procedure
Code. But we are satisfied that there is no substance in this argument and
there is no camouflage or evasion in the present case.
For these reasons we hold that the judgment
of the High Court dated March 2, 1964 must be affirmed and this appeal must be
dismissed.
Appeal dismissed.
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