Radhey Shyam Gupta vs The State

D.P. Uniyal, J.—This is an application to revise an order of the Sessions Judge upholding the jurisdiction of the Magistrate to proceed with the trial of the accused u/s 353, IPC.

On an information lodged with the police a case under Sees. 228 and 353, I.P.C., was sent up against the accused to the Court of the Magistrate who framed charges against him in these terms:

Firstly, that you on or about the 17th day of August 1953 at about 4 p.m. in Civil Lines at the Registration Office, Orai intentionally offered insult and caused interruption to R.S. Lal Sub-Registrar, while he was sitting in a stage of judicial proceeding namely, was registering a document, and thereby committed an offence u/s 228, I.P.C.

Secondly, that you on the same day at the same time and place assaulted R.S. Lal Sub-Registrar, a public servant, with intent to deter him and prevent him from discharging his duty of registering a deed as public servant, and thereby committed an offence punishable u/s 353, I.P.C.

An objection was raised on behalf of the accused challenging the jurisdiction of the Magistrate to take cognizance of the offence without a complaint in writing of the public servant concerned as required by Section 195 (1), Cr.P.C. The Magistrate upheld the objection as regards the charge u/s 228, I.P.C., but overruled it with respect to Section 353, I.P.C.

The main point canvassed at the Bar was whether it was permissible for the prosecution to split up the facts of the case in, order to get round the bar of Section 195, Cr.P.C. Now the crux of the allegation in the present case was that the Sub-Registrar was obstructed in the discharge of his official duty by the accused offering insult to and committing assault on him. It was said that accused used filthy language and displayed an attitude of defiance to his authority by means of gestures. On these facts it would hardly be possible to separate the element of insult from that of so-called assault because the two are so interwoven in the episode that they become merged one with the other. It seems, therefore, clear that the Magistrate could only have proceeded to try the accused u/s 353 by disregarding the fact that the two offences fell in the same category and were of the same nature. In Basir-ul-huq and Others Vs. The State of West Bengal, , the Supreme Court deprecated the practice of evading the provisions of Section 195, Cr.P.C. by resorting to devices and camouflages and said:

The test whether there is evasion of the Section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, 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, upon the ground that such latter offence is a minor offence of the same character or by describing the offence as being 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 Section 195, Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it.

The facts of the Supreme Court case were these: One Nurul Huda lodged information at the police station that Dhirendra Nath had beaten and throttled his mother to death and had taken her dead body for cremation. When the funeral pyre was in flames, Nurul Huda along with the Sub-Inspector of Police and some other persons arrived at the cremation ground and had the dead body taken out after getting the fire extinguished. The sub-inspector did not find any marks of injury on the dead body and the post-mortem report also did not reveal any marks of violence. Dhirendra Nath filed a petition of complaint in the Court of a Magistrate, First Class, charging the accused with offences under Sections 297 and 500, I.P.C. An objection was raised on behalf of the accused that the allegations contained in the report disclosed and offence u/s 182 or Section 211, I.P.C. and therefore, the same could not be taken cognizance of without a complaint in writing of the public servant concerned by virtue of Section 195, Cr.P.C.

In view of the importance of the question of law raised in that case, the matter was laid before a Full Bench of the Calcutta High Court which held that the conviction of the accused u/s 297, I.P.C., was perfectly legal because there was nothing in Section 195 to 199, Cr.P.C. which could in any way bar the prosecution of the accused under that Section as it could not be said that it arose out of facts which would constitute an offence u/s 182 or 211, I.P.C. On the other hand, it arose from entirely different set of facts, namely, trespass by the accused in the burial-ground and the removal of the corpse from the lighted funeral pyre. In regard to the offence u/s 500, it was observed that the prosecution for defamation was based on the false information given to a public officer. That circumstance, however, was no bar for the prosecution of the accused under that Section because it was a distinct and separate offence wholly unconnected with the offence u/s 297. The matter was taken to the Supreme Court and it affirmed the view of the Full Bench. It is worthwhile to reproduce the observations of the Supreme Court. They said:

The charge for the offence u/s 297, I.P.C., could in no circumstance as pointed out by the High Court, be described as falling within the purview of Section 195, Cr.P.C. The act of trespass was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concern the conduct of the appellants during the post-report period.... As regards the charge u/s 500, Penal Code, it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of Section 195 from seeking redress for the offence committed against him.... u/s 198, Cr.P.C. a complaint in respect of an offence u/s 499, I.P.C., can only be initiated at the instance of the person defamed, in like manner as cognizance for an offence u/s 182 cannot be taken ''except at the complaint of the public servant concerned''.

The matter was considered in our own High Court in Ram Harsh Tewari and Another Vs. Rex, through Rang Ramanuj Prasad Narain Singh, , Malik C.J., discussing the scope of Section 195, Cr.P.C. observed that where the facts stated in the complaint amount to an offence u/s 193, I.P.C., in the absence of a complaint by the Court u/s 195(1)(b), it is not open to the complainant to say that he would confine his case to the offence u/s 465, I.P.C., for which no complaint by the Court is needed, though the nature of the offence is the same.

The same principle was brought out "forcefully by Happel J., in re Chilukuri Antarvedi Sarma AIR 1946 Mad 489. The learned Judge said that if the facts disclosed an offence u/s 193, I.P.C., parties could not be allowed to circumvent the law by filing a complaint u/s 467, I.P.C., and that it would be wrong to ignore the elements of the offence which brought it u/s 467 in respect of which no special complaint was necessary. The same point of view had been expressed in two earlier Division Bench cases of the Madras High Court: In re Ravennappa Reddi ILR Mad 343 : AIR 1932 Mad 253 and In re Appadurai Nainar ILR Mad 165 : AIR 1936 Mad 89.

Again, In Re: Chinnayya Goundan and Others, , Govinda Menon J., after considering the case-law, stated:

The principle deducible from these cases is that when a complaint is made to a Court, the facts should be considered as a whole and there should be no splitting up of the facts. Therefore, the Court is not entitled to disregard some of the facts and try an accused1 person for an offence which the remaining facts disclose. Considering the facts as a whole if they disclose an offence for which a special complaint is necessary under the provisions of Section 195, Cr.P.C. the Court cannot take cognizance of the case at all unless that special complaint has been filed.

In State v. Kathi Unad AIR 1955 Gau 10, the learned Judge relying on the Supreme Court case of Basir-ul-huq and Others Vs. The State of West Bengal, , said that the very act of obstruction lay in the assault and the hurt to complainant and that the offence primarily committed was u/s 186, I.P.C., and to convict the accused for the offence u/s 332, I.P.C., would be tantamount to holding them guilty u/s 185, I.P.C., and then convicting them for the offence u/s 332, I.P.C. They came to the conclusion that the prosecution could not circumvent the provisions of Section 195 by a dubious method. See also Makaradhwaj Sahu and Another Vs. The State, .

I have been referred on behalf of the State to the case of Ganga Singh Vs. State, . In that case it was contended that the conviction of the accused u/s 218, I.P.C., was not legally sustainable because the crime committed by him was essentially an offence of fabricating false evidence for the purpose of being used in a judicial proceeding which was punishable u/s 193, I.P.C, and that the accused could only be prosecuted on a complaint filed by the Court concerned in accordance with Section 195(1)(c), Cr.P.C. Broome, J., observed that "the facts made out an offence punishable both u/s 218 and u/s 193, I.P.C." and added that "whereas all the ingredients of an offence u/s 465 are included in Section 193, Section 218, I.P.C., contains certain important ingredients which are not at all covered by Section 193 in the sense that Section 218 is not a minor offence of Section 193 but a completely different species of crime". On this reasoning he upheld the conviction of the accused u/s 218, I.P.C.

With great respect, I am unable to accede to the proposition that where the ingredients of two offences, one falling u/s 218 and the other u/s 193, are common and overlap each other, it is open to the complainant to bypass, as it were, the provisions of Section 195 by choosing to prosecute the accused u/s 218, I.P.C., only. As was observed by the Supreme Court in Basir-ul-huq and Others Vs. The State of West Bengal, , if in truth and substance the offence falls in the category of sections mentioned in Section 195, Cr.P.C. it is not open to the Court to convict an accused without complying with the provisions of that section.

For the reasons given above, I am of the opinion that the prosecution of the accused u/s 353, I.P.C., is not legally sustainable. I accordingly quash the proceedings pending against him u/s 353, I.P.C.

This revision is accordingly allowed and the proceedings against the accused u/s 353 are set aside.