Makaradhwaj Sahu and Another vs The State

Panigrahi, C.J.—The two petitioners have been convicted u/s 188, I.P.C. Petitioner No. 1, Makardhwaj has, in addition, been convicted u/s 353, I.P.C. The prosecution case is that P.W. 1 the Forester along with P.W. 2 and P.W. 3 two Forest Guards, went to the house of one Kalandi for making a search of his house, armed with a search warrant from the Divisional Forest Officer, on 4-3-1953. It is said that the two petitioners did not allow them to enter into the courtyard saying that they would not allow any search. Petitioner Makardhwaj is alleged to have asked them to get away and pushed back the two forest guards. On these facts the petitioners were charged and convicted of having committed an offence under Sections 186 and 353, I.P.C.

In revision Mr. Sahu raised a very interesting point of law and urged that the prosecution has not been validly instituted. It appears that the Forester reported to the Divisional Forest Officer who, in his turn, reported to the Police, and the Police, in their turn, after investigation charge-sheeted the accused persons. Reliance is placed on Section 195 of the Criminal Procedure Code which lays down that no Court shall take any Cognizance of an offence u/s 186. I.P.C. except on the complaint in writing of the Officer concerned or of some one to whom he is subordinate. Admittedly, this provision has not been followed in this case. This Court has held in more than one case that non-compliance with the strict provisions of Section 195 is fatal to the prosecution and it cannot be said in this case that cognizance of the offence has been taken in accordance with law. I have therefore no doubt in my mind that the conviction of the petitioner u/s 186, I.P.C. is not sustainable and must be set aside.

So far as the offence u/s 353, I.P.C. is concerned, I am inclined to accept the contention of learned counsel that this offence Is so connected with the primary offence of offering resistance to a public servant that it cannot, in the circumstances, be said to have constituted a separate and individual offence. It is said that in offering resistance one of the petitioners pushed the forest guards'' and that there was no intention to commit assault; what the two petitioners did was merely to cause obstruction to the search.

The convictions of the petitioners as well as the sentences are set aside, the revision is allowed and the fines, if paid, shall be refunded to them.