Birendra Kumar Das vs Tulasi Dei and Others

S.K. Ray, C.J.—The sole question for determination is whether cognizance of offences under Sections 186 and 353. Indian Penal Code taken on the basis of a complaint filed by the Munsif, First Court, Cuttack that the Process Server entrusted with a writ of delivery of possession for execution issued by him was assaulted abused and threatened in various other ways along with the decree-holder and police officer who had accompanied him at the time, by the opposite parties thereby successfully preventing him from executing the writ of delivery of possession, was barred u/s 195(1)(a) of the Code of Criminal Procedure. This involved the question whether the Process Server was subordinate to the Munsif, First Court.

2 The facts may be briefly stated. The Petitioner obtained a decree for declaration of his title to Ac. 0.120 dec. of land comprised in plot No. 99 under khata No. 1 of mouza Tulsipur ana delivery of possession of the same against opposite party No. 2 judgment-debtor. Since vacant possession was not delivered voluntarily, the Petitioner levied'' execution of his decree in Execution Case No. 120 of 1974 in the Court of the Munsif, First Court, Cuttack, who issued a writ of delivery of possession and entrusted the same to Mirza Amjad Beg, Process Server of Civil Court for execution. On 19-4-1974 at 9.30 a. m. the said Process Server went to the suit land to deliver vacant possession of the same to the decree-holder - Petitioner accompanied by the decree-holder, a police officer, another gentleman (who are respectively witness Nos. 1, 4 and 2 in the complaint petition) and a drummer. On reaching the village he called upon the judgment-debtor No. 1 - opposite party No. 2 and read out the contents of the writ of delivery of possession and requested her to deliver possession of the suit land according to his identification. He also asked the drummer to beat drum. Thereupon, all the three opposite parties 1 to 3 armed with knife, katari and night-soil pot abused the Process Server, the decree-holder, the police officer and the gentleman who had accompanied the Process Server. Opposite party No. 2 raised the katari in her hand and threatened to kill the decree-holder and the Process Server if they proceeded to the suit land for delivery of possession. Opposite party No. 1, daughter of opposite party no 2, sprinkled the night-soil with the help of a broomstick at the decree-holder and the Process Server and the other people who had accompanied them and likewise threatned to kill whoever proceeded to the spot for delivering possession. Opposite party No. 3. daughter-in-law of opposite parry No. 2, similarly threatened the Process Server and others accompanying him, with a tangia. Thus obstructed, the Process Server returned the writ with a report of such obstruction to the First Munsif. The latter took evidence and being satisfied about the various overt acts of the opposite parties complained of, filed a complaint before the Sub-Divisional Judicial Magistrate who registered a case No. 2(c)C. C. 57 of 75 and took cognizance of the offences u/s s. 186 and 353 of the Indian Penal Code and summoned the opposite parties to stand their trial. On their appearance the said case was transferred to the Court of Shri L. Mohanty, Judicial Magistrate, First Class, Cuttack for disposal according to law.

A preliminary point was raised before the transferee Magistrate that the Process Server who was obstructed and assaulted in course of execution of the warrant of delivery of possession not being administratively subordinate to the First Munsif, Cuttack, the latter had no power to file the complaint petition and, as such, cognizance of the case was barred u/s 195 (l)(a) of the Code of Criminal Procedure. This point found favour with the Magistrate and be, accordingly, acquitted the opposite parties u/s 255(1), Code of Criminal Procedure by his order dated 21-8-1977 passed in 2(c)C. C. No. 57 of 1975. In so doing, he held that the Process Server was not administratively subordinate to the First Munsif and, as such, cognizance was barred u/s 195(1)(a), Code of Criminal Procedure so far as Section 186. Indian Penal Code was concerned. With regard to the case u/s 353, Indian Penal Code he further held that the element of insult and assault being so interwoven they became merged one with other and the same could not be split up so as to evade the provision u/s 195, Indian Penal Code and hence no proceeding u/s 353, Indian Penal Code could be taken against the accused without the written complaint of the public servant".

The relevant provision of Section 195(1), Code of Criminal Procedure reads as follows:

195(1). No Court shall take cognizance- (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code, or

(ii) xx xx xx

(ill) xx xx xx

except on the complaint in writing of the public, servant concerned or of some other public servant to whom he is administratively subordinate."

The first question which falls for determination is whether the Process Server was administratively subordinate to the First Munsif; Cut tack at the time of commission of the offences. Rule 25, Chapter II of G. R. & C, O. (Civil), Volume.-I provides:

There shall be a joint process-serving establishment for all Courts at the same station under the direct control of the Nazir, who will be responsible for proper service of processes made over to him for the purpose. The Nazir and all his staff shall be subordinate to any such Court issuing process, for the purpose of execution of that particular process, and shall place themselves under the orders of the Presiding Officer in that regard....

This rule expressly makes the Process Server subordinate to the individual Courts issuing processes and as, in the instant case, it was the First Munsif, Cuttack who issued the warrant of delivery of possession to the Process Server, the latter became administratively subordinate to him. As such, the First Munsif was competent to file a complaint and, therefore, the bar to taking cognizance in relation to Section 186, Indian Penal Code imposed by Section 195(1), Code of Criminal Procedure did not operate. The S. D. J. M. lawfully took cognizance.

Apart from the Rule 25, Chapter II of the G. R. & . (Civil). Volume I extracted above on general principles of public policy the Peon executing a warrant of delivery of possession pursuant to the order of the Court is subordinate to that Court while carrying out the Judge''s order.. It has been so laid down in the case of Rajshahi Banking and Trading Corporation Ltd. Vs. Surendra Nath Mitra, , In that case a warrant of attachment of movable property was issued by the Sub-judge, Alipore The warrant of attachment had been handed over by the Nazir of the Court to two Peons who, while engaged in executing the warrant, were assaulted by the judgment-debtor. Thereupon the Sub. Judge was moved to take action in the matter against the Defendant - judgment-debtor under Sections 476/195, Code of Criminal Procedure in respect of an offence alleged u/s 186 Indian Penal Code. The Sub-Judge refused the same thinking that he, the Sub-judge, was not in charge of the Nizarat and was not, therefore, the administrative superior of the Peons and further that the Process Server was not a public servant within the meaning of Section 195(1)(a), Criminal Procedure Code. In dealing with these points their Lordships said:

...The position then was that the peon had been given a warrant, that is to say, an order from the same Subordinate Judge, to do certain things and he went presumably to do what the Judge ordered him to do. It was the Judge''s duty to protect that peon when he was carrying out the order of the Court. Both the Subordinate Judge and the peon are public servants within the meaning of Section 21, Penal Code, and on the face of the application it would appear that there was a matter to be enquired into as to whether the Defendant had committed an offence within the meaning at Section 186, Penal Code. Clearly, the peon was subordinated to the . Subordinate Judge whilst he was carrying out the Judge''s order. In my view, the Judge made excuses for not taking steps to protect the peon. Unless peons are protected they cannot carry out their duties and the administration of justice may become a farce. In my opinion on the facts before us the Subordinate Judge ought to have made a complaint in respect of the occurrence so that the matter could have been examined by the proper criminal Court to see whether an offence u/s 186, Penal Code, had been committed or not....

In the case of Brij Lal Vs. The State, , the meaning of the word ''subordinate'' occurring in Section 195(1), Code of Criminal Procedure was considered. In that case a Munsif directed an Amin of the District Court to seel crops attached in execution of a decree. While the Amin went to the village to carry out the order, he was obstructed and assaulted and he filed a report before the Munsif. After enquiry, the Munsif directed filing of a complaint under Sections 186 and 353, Indian Penal Code. A contention was raised in that case that the Amin was not subordinate to the Munsif and, therefore, the complaint filed by the Munsif was not maintainable. His Lordships considered the meaning of the word ''subordinate'' in Section 195(1), Code of Criminal Procedure and held:

...If a person is under obligation to carry out the directions of another a relationship of subordination arises and the person who is under obligation to carry out the directions must at least during the course of that assignment, be held to be subordinate to the person whose directions he is bound to carry out.

To avoid all controversies the general principle indicated in the aforesaid two decisions has been made expressly a part of Rule 25, Chapter II of G. R & C. O. (Civil) Volume I referred to above. There can be, the therefore, no doubt that the Process Server in the instant case was administratively subordinate to the First Munsif, Cuttack while engaged 10 course of execution of the warrant of delivery of possession issued by the latter, and therefore, there was no bar to taking cognizance as envisaged in Section 195(1) Criminal Procedure Code.

Even though the learned Magistrate held that cognizance could not be taken of the offence u/s 186, Indian Penal Code, he should have at least proceeded with the trial of the case u/s 353. Indian Penal Code. Section 195, Crimina I Procedure Code does not bar a trial of an accused for an offence u/s 353. Indian Penal Code Which is not included within the ambit of the section even though it is made out by the same set of fact which make out a case u/s 186. Indian Penal Code for which cognizance is barred. This is the view taken by the Supreme Court in the case of Durgacharan Naik and Others Vs. State of Orissa, that case the decree-holder levied execution of the decree in the Court of Munsif, Puri against the judgment-debtor and a writ of attachment of movables of the judgment-debtor was Issued by the Munsif through a peon of the Civil Court. The Peon executed the warrant with the help of some police officers and realised the decretal dues from the judgment-debtor. While they were returning after executing the warrant of attachment, the judgment-debtor accompanied by some others waylaid them and manhandled them demanding that the money paid by him earlier should be returned. Then, at the intervention of some outsiders, the judgment-debtor and his party left the spot. A first information report was lodged at the police station and the Appellants before the Supreme Court were charge-sheeted and committed to the Court of Session. The Appellants were charged under Sections 143/402, Indian Penal Code. Some of them were also further charged u/s 186 and also u/s 353. Indian Penal Code for having used criminal force. The Additional Sessions Judge acquitted all the accused persons of all the charges. There was a Government Appeal before the Orissa High Court which set aside the order of acquittal with regard to four Appellants and convicted them u/s 353. Indian Penal Code. As regards charge u/s 186, Indian Penal Code the High Court expressed the view that the prosecution was barred under the provisions of Section 195, Criminal Procedure Code.

In these circumstances, it was contended before the Supreme Court that the charge u/s 353, Indian Penal Code was based upon the same facts as the charge u/s 186, Indian Penal Code and conviction u/s 353, Indian Penal Code is tantamount to a circumvention of the requirement of Section 195(1), Criminal Procedure Code. This contention was negatived and their Lordships of the Supreme Court stated as follows:

...We are unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge u/s 353, Indian Penal Code is based are the same as those constituting the charge u/s 186, Indian Penal Code but it cannot be ignored that Sections 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 u/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. A 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 199 of the Code of Criminal Procedure 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....

Thus, the two offences being fundamentally distinct in nature could be separately taken cognizance of. Their Lordships therefore, were of opinion that the trial of the Appellants for the distinct offence u/s 353, Indian Penal Code, though is practically based on the same set of facts, as for the prosecution u/s 186, was not barred by Section 195. Criminal Procedure Code. Their Lordships in this connection approved the decision of the Full Bench of the Calcutta High Court in the case of Satis Chandra Ckakrabarti Vs. Ram Dayal De, . which had earlier received approval of the Supreme Court in the case of Basir-ul-huq and Others Vs. The State of West Bengal, . In view of the aforesaid dictum, the learned Magistrate was absolutely wrong in acquitting the accused persons of the charge under> Section 353, Indian Penal Code.

As I have already said above, the Peon was administratively subordinate to the First Munsif and, therefore the requirements of Section 195, Code of Criminal Procedure had been fulfilled in SO far as the offence u/s 186, Indian Penal Code is concerned. Thus, cognizance had been rightly taken by the Sub-Divisional Judicial Magistrate of both the offences under Sections 186 and 353. Indian. Penal Code. The learned Magistrate, therefore, was wrong in holding that the S. D. J. M. had no jurisdiction to take cognizance of the two offences and consequently acquitting the accused persons u/s 255(1), Code of Criminal Procedure without entering upon the merits of the case, though evidence had been adduced both by the prosecution and the defence. 1 would, therefore, set aside the decision of the Magistrate dated 31-8-1977 and direct him to consider the evidence and deal with the case on merits.

A point was raised that in absence of an appeal being filed by the Government against the order of acquittal of the Magistrate, this Court''s power of revision cannot be invoked at the instance of the Petitioner, a private party. The Supreme Court in various cases has dealt with the extent of the jurisdiction of the High Court in the matter d Interfering in revision against the order of acquittal. In this connection, it will be appropriate to refer to the case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , where it has been held:

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in Interfering with a finding of acquittal 10 revision. These cases may be: Where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High-Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4).

These principles have also been reiterated in various other cases of the Supreme Court, namely: Mahendra Pratap Singh Vs. Sarju Singh and Another, , Khetrabasi Samual etc. Vs. The State of Orissa, . Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., and Chaganti Kotaiah and Others Vs. Gogineni Venkateshwara Rao and Another, . The present case is an exceptional case as envisaged in those principles. This is a case where the Magistrate has wrongly refused to exercise jurisdiction in refusing to enter upon merits of the case by holding that cognizance is barred u/s 195, Criminal Procedure Code. The acquittal is not one on merits but only one on the basis of a technical ground which is, as indicated above, patently erroneous. This is, therefore, a fit case where the power a of revision of the High Court might properly be invoked. This point, therefore, fails.

In result this revision succeeds, the order of the Magistrate is set aside and the case is remitted back to him for disposal on merits.

Revision is alIowed.

Revision allowed.