Hoshiar Chand vs State of Himachal Pradesh

D.B. Lal, J.—Before the Sub-Divisional Magistrate, Dalhousie, two cases instituted on police report for conviction of the accused Hoshiar Chand under Sections 447 and 188 of the I.P. Code. It was alleged against him that he had taken unlawful possession of two different strips of land belonging to Government from which land he was obviously ejected under the orders of the Revenue authorities. Hoshiar Chand was alleged to have subsequently trespassed upon the said land, and since he disobeyed an order duly promulgated by a public servant he committed an offence u/s 188 of the I.P. Code. The other offence imputed against him was u/s 447 of the I.P. Code. When the two prosecution cases were being tried before the Sub-Divisional Magistrate, a plea was taken that the offence u/s 188, which was decidedly interlinked with the offence u/s 447, could not be taken cognizance of, except on a complaint in writing of the public servant concerned. The learned Sub-Divisional Magistrate did not take notice of that plea and proceeded to convict Hoshiar Chand. Thereafter a revision was filed before the Additional Sessions Judge, Kangra, and he took up that point and referred the two cases to the High Court u/s 438 of the then Code of Criminal Procedure, According to the learned Sessions Judge, a complaint in writing by the concerned public servant was a condition precedent before cognizance of the offences could be taken. He, therefore, indirectly solicited for quashing of the conviction.

A learned Single Judge of this Court, who heard the two references, referred to several decisions and noticing a conflict between the parties, thought it proper to refer the question to a larger Bench. That is how these two criminal references are placed before us for our considered view in the matter.

The facts governing these cases are simple and rather admitted. It is accepted on all hands, that the Revenue authorities issued specific orders that Hoshiar Chand would not take possession over these strips of land. In disobedience of these orders of the Revenue authorities, Hoshiar Chand trespassed upon these strips of land. Therefore, the offence committed by him clearly fell u/s 188 of the I.P.C. It could not be stated that the other offence u/s 447 of the I.P.C., was not so much interwoven in the offence u/s 188 of the I.P.C. so that it could be stated that the offence u/s 447 could be considered independent of the offence u/s 188. It is, therefore, evident that if the offence u/s 188 could not be taken cognizance of without a proper complaint, the consequence would be that the other offence u/s 447 would not independently stand for being taken cognizance of. That being the position, we have to concentrate, if the offence imputed against Hoshiar Chand cannot at all be taken cognizance of without a complaint in writing by the public servant concerned.

In this connection we have carefully considered the arguments advanced on behalf of the respective parties. We have to take care that in Section 195(1)(a) of the then Code, the opening words are "No court shall take cognizance". The learned Counsel representing the State argued in this Court, as he did before the learned single Judge, that by a notification, dated 22nd March, 1969 u/s 10 of the Criminal Law Amendment Act, 1932, the Lieutenant-Governor (Administrator), Himachal Pradesh declared that inter alia the offence punishable u/s 188 would be a cognizable offence and shall be non-bailable. It is, therefore, manifest that by this notification the offence u/s 188 was considered cognizable and non-bailable. There is a marked distinction between the expressions "cognizable" and "cognizance". The expression "cognizable" is defined in Section 4(f) of the then Code. It means an offence for which a police officer can arrest without warrant, meaning thereby that the police officer is not required to take the permission of the Magistrate for the arrest of an accused. Taking cognizance is entirely a different process for which reference need be made to Section 190 of the Code. The Magistrate can take cognizance under one of the modes prescribed in that section. Section 190(1)(a) talks of a complaint which is received by the Magistrate, while its Sub-clause (b) talks of a report in writing made by a police officer. Therefore, the cognizance can be taken either upon a complaint or upon a report by a police officer. The third category is, of course the information received by the Magistrate from some other source. The opening words of Section 190: "Except as hereinafter provided" amply indicate that Section 195(1)(a) is not to be considered as having no influence upon Section 190. In other words, if cognizance u/s 195(1)(a) can be taken for an offence only upon a complaint in writing by a public servant that would prevail over Section 190. It is, therefore, abundantly clear that "taking cognizance" is quite a distinct conception as compared to an offence being "cognizable". No doubt the offence u/s 188 of the I.P.C. has been made cognizable, but the question would still remain as to how a Magistrate can take cognizance for that offence. In that connection, Section 195(1)(a) would assume importance. He can only take cognizance for that offence provided a complaint in writing is made by the public servant concerned.

In our opinion, therefore, there is no conflict between the notification u/s 10 of the Criminal Law Amendment Act, 1932 and Section 195(1)(a) of the Code. Despite the offence being declared cognizable, its cognizance can only be taken u/s 195(1)(a) provided the offence falls in the category specified in that section. The learned Counsel for the State then referred to the definition of "complaint" as provided for in the Code. According to him, the report made by the police officer could even be considered a complaint. But, in our opinion that would not be a correct interpretation inasmuch as in the definition of "complaint" in Section 4(1)(h) the report of a police officer is specifically excluded. Therefore, when they used the expression "complaint" in Section 195(1)(a) they decidedly excluded the report made by a police officer. Rather they refer to a complaint in writing made by the public servant concerned.

The cases referred to by the learned single Judge are in fact in support of the view that we have taken. The two Orissa cases, (1) Bansidhar Patnaik and Others Vs. Province of Orissa, and (2) State of Orissa v. Oria Sama Majhi AIR 1951 Orissa 138, specifically deal with this point. In these cases a notification u/s 10 of the Criminal Law Amendment Act, 1932 was there for the offence u/s 188, I.P.C. No complaint was made as contemplated u/s 195(1)(a) and it was held that cognizance of the offence could not be taken. Similary in Sumer Goshain and Others Vs. State, it was held that offence u/s 188, I.P.C., although made cognizable yet Section 15(1)(a) was not affected. The trial on police report without Magistrate''s complaint was held invalid. In Veerappa Moopan AIR 1939 Mad. 496, a similar view was taken. That was also a case for the offences under Sections 188 and 447, as the order of the Sub-Magistrate u/s 144 was disobeyed. It was held that a complaint u/s 195 was a must before cognizance could be taken. It was also casually observed that since the disobedience of the very same Magistrate''s order was involved, it was proper that the said Magistrate should not have taken cognizance of the case. In Bhagwagir Mukundgir v. State AIR 1950 MP 58, a similar situation arose. The offence committed was u/s 188 for contravening an order of the Home Minister, it was held that a complaint in writing by the Home Secretary was required before cognizance could be taken u/s 195(1)(a) In Ramswarup Agarwalla v. The State AIR 1952 gau 68, the offence committed was u/s 118 as the order of the Magistrate u/s 144 was disregarded. It was held that a complaint in writing of the Magistrate u/s 195(1)(a) was required before cognizance could be taken. The trial by the Magistrate of such offence on a police report made to him was held without jurisdiction. We are therefore, fortified by all these decisions, and in our considered opinion the situation does not alter merely because a notification u/s 10 of the Criminal Law Amendment Act, 1932 was issued. The offence being one u/s 188 could be taken cognizance of by the Magistrate under a complaint in writing by the public servant concerned.

In this view of the matter, the two references made by the learned Sessions Judge, Kangra must be accepted and the conviction of Hoshiar Chand has to be quashed. If Hoshiar Chand has paid the fine, the same shall be refunded to him.