Rabinder Singh and others vs State of Punjab

T.H.B. Chalapathi, J.

This revision petition is filed against the orders of the Sessions Judge, Faridkot in Criminal Revision No. 29 of 7.9.1993, dated 8.1.1994.

The facts leading to the filing of the present revision petition may briefly be stated as follows :

One Hardip Singh Sekhon was working as Excise Inspector at Baghapurana. On 30.10.1992 at about 11.15 A.M. he went to his office for issuing transit passes for the sale of liquor at the sale points. While he was trying to issue the transit passes, the accused alongwith 6/7 other persons came to the office of Hardip Singh Sekhon and started abusing him. All the accused persons gave him first blows and danda blows. Accused No. 1 also told him that he was waiting for an opportunity to give a thrashing to Hardip Singh Sekhon since the time he took over as Excise Inspector at Baghapurana as said Hardip Singh Sekhon was not toeing their line. When the accused were giving beatings to the Excise Inspector, one Amarjit Singh, liquor vendor alongwith Ramesh Kumar, a peon of the Excise department came to the office and rescued Mr. Sekhon. Therefore, the Excise Inspector gave. a police complaint on October 30, 1992 on the basis of which a case was registered in FIR No. 129 dated 30.10.1992, at Police Station Baghapurana. After completion of the investigation, the police filed chargesheet against the accused for the offences under Sections 332/353/186/148 and 149 of the Indian Penal Code, in the Court of Judicial Magistrate 1st Class, Moga. The learned Magistrate refused to take cognizance of the case on the ground that the chargesheet was filed by the police and not by the public officer concerned and, therefore, Section 185(1) Cr.P.C. is a bar for taking cognizance of the case. He accordingly discharged the accused. Aggrieved by the same, the State preferred a revision petition before the Court of Sessions Judge, Faridkot who by impugned order allowed the revision petition and directed the Magistrate to frame appropriate charges against the accused for offences. Aggrieved by the said order, the accused preferred the present revision petition in this Court.

The learned counsel for the petitioners argued that the offences under sections 186/332 IPC cannot be tried by the Magistrate in view of the specific provision cone in Section 195 of the Cr.P.C. and that the other offences were also committed during the course of the same transaction and, therefore, the learned Sessions Judge erred in allowing the revision petition filed by the State and directing the Magistrate to frame charges against the accused.

It is to be seen whether in the circumstances of the present case Section 195 Cr.P.C. bars the Magistrate from taking cognizance of the case against the accusedpetitioners for the offences under Sections 332, 353, 148 and 149 IPC.

According to the case of the prosecution, when the Excise Inspector went to his Office to issue transit passes for sale of liquor, the accused him and gave him first blows and danda blows. The Excise Inspector gave a complaint to the Police. After completion of investigation, the police filed chargesheet against the accused for the offences u/ss 332/353/186/148/149 IPC. It is true that cognizance of the case under Section 186 cannot be taken by the Magistrate in view of the provisions contained in Section 195(1) Cr.P.C. Taking cognizance of the other offences is not barred under Section 195 Cr.P.C. It may be mentioned here that the same facts may attract other offences under the Indian Penal Code. Section 195 Cr.P.C. prohibits the Court from taking cognizance of the offence mentioned therein. There is no dispute that the offences under Sections 332 and 353 do not come within the purview of the provisions of Section 195 Cr.P.C. For taking cognizance of the offences under Sections 332 and 353 IPC a written complaint need not be filed by the concerned public servant. Admittedly, these are not the offences covered by Section 195 Cr.P.C. and, therefore, I am of the opinion that the learned Sessions Judge is right in directing the Magistrate to take the case on file for the offences not covered by Section 185 Cr.P.C. and frame charges against the accused for the said offences. The learned counsel cited a decision of this Court in Bhagat Ram v. State of Punjab, 1991(1) Recent Criminal Reports 192 , to support his contention that the offences under Sections 332/353 cannot be taken cognizance by the Magistrate on a report given by the police without there being a written complaint by the public officer concerned as the other offences also arise out of the same transaction. The offences under Sections 332 and 353 though arise out of the same transaction, they are independent offences. The Supreme Court while dealing with a similar situation observed as follows in Durgacharan v. State of Orissa, 1966 Criminal Law Journal 1491 : (AIR 1966 SC 1775) :

"5. We pass on to consider the next contention of the appellants that the conviction of the appellants under Section 353, I.P.C. is illegal because there is a contravention of Section 195(1) of the Cr.P.C. which requires a complaint in writing by the process server or the A.S.I. It was submitted that the charge under Section 353 I.P.C. is based upon the same facts as the charge under Section 186, I.P.C. and no cognizance could be taken of the offence under Section 186, I.P.C. unless there was a complaint in writing as required by Section 195(1) of the Cr.P.C. It was argued that the conviction under Section 353, I.P.C. is tantamount, in the circumstances of this case, to a circumvention of the requirement of Section 195(1) of the Cr.P.C. and the conviction of the appellants under Section 353, I.P.C., 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 Section 353, I.P.C. is based are the same as those constituting the charge under Section 186, I.P.C. but it cannot be ignored that Section 186 and 353, I.P.C. relate to two distinct offences and while the offence under the latter section is a cognizable offence the one under the former is not so. The ingredients of two offences are also distinct. Section 186 I.P.C. is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 353, I.P.C. 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 I.P.C. 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 195 of the Cr.P.C. 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, 24 Cal WN 982 : (AIR 1921 Cal 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 Section 211, I.P.C. which is an offence under Section 211, I.P.C, which is an offence against public justice, and the other an offence under Section 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 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 noncompoundable, while the latter remains compoundable; in one for the initiation of the proceedings the legislature requires the sanction of the Court under Section 195, Cr.P.C. while in the other, cognizance could 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 Sections 195 to 199 of the Cr.P.C. The decision of the Calcutta case has been quoted with approval by this Court in BasirulHuq v. State of West Bengal, 1953 SCR 836 : (AIR 1953 SC 293), in which it was held that if the allegations made in a false report disclose two distinct offences, one against a public servant and other against a private individual, the latter is not debarred by the provisions of Section 195, Cr.P.C. from seeking redress for the offence committed against him. (6) In the present case, therefore, we are of the opinion that Section 195, Cr.P.C. does not bar the trial of the appellant 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."

I am, therefore, of the opinion that the revision petition is liable to be dismissed.

The revision petition, therefore, fails and is hereby dismissed.