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PETITIONER: DURGACHARAN NAIK AND ORS.

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT: 23/02/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SUBBARAO, K.

CITATION:  1966 AIR 1775            1966 SCR  (3) 636

ACT: Code  of  Criminal Procedure (Act 5 of 1898),  s.  195-Facts disclosing  offences  under ss. 186 and  353,  Indian  Penal Code--Prosecution  for offence under s. 353 without  written complaint of public servant Maintainability.

HEADNOTE: The appellants were charged with offences under s.  143/402, 186  and  353,-Indian Penal Code for having  obstructed  and assaulted  two  public  servant in the  discharge  of  their public duty of executing the decree of a Civil Court.   They were  acquitted by the trial Court, but on appeal, the  High Court convicted them under s. 353, acquitted them under  ss. 143/402  and  held  that the prosecution  under  s.  186-was barred by a. 195, Criminal Procedure Code, which requires  a complaint  in writing by the public servant before  a  court could take cognizance of the  offence. In  appeal  to  this  Court,  it  was  contended  that   the prosecution under s.   353,  Indian  Penal  Code, was also barred  by  s.  195 Criminal Procedure Code. HELD  : Sections 186 and 353, Indian Penal Code,  relate  to two  distinct offences and s. 353 is not referred to  in  s. 195  Cr.P.C. Section 195, Criminal Procedure Code, 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, when there is no  camouflage  or evasion  to circumvent the Section.  Therefore the trial  of the appellants for the distinct offence under s. 353 was not barred though it was based practically on the same facts  as for  the  prosecution under s. 186, and the High  Court  was justified, on the evidence, in interfering with the order of acquittal  passed  by  the trial Court  in  regard  to  that charge. [640 E, G; 641 E] Sanwat Singh v. State of Rajasthan [1961] 3. S.C.R. 120  and Agarwal  and Kulkarni v. State of Maharashtra,  A.I.R.  1963 S.C. 200, followed. Basir-ul-Huk V. State of West Bengal [1953], S.C.R. 836  and Hori Ram Singh v. The Crown, [1939] F.C.R. 159, referred to.

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67   of 1964. Appeal  by special leave from the judgment and  order  dated March 2, 1964 of the Orissa High Court in Government  Appeal No. 49 of 1963. R.   K.  Garg,  S. C. Agarwala, M. K. Ramamurthy and  D.  P. Singh, for the appellants. H. R. Khanna and R. N. Sachthey, for the respondent., 637 The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Orissa High Court dated March 2, 1964 in Government Appeal No. 49 of 1963 by which the High Court set aside  the  order  of  acquittal  passed  by  the  Assistant Sessions Judge of Puri and convicted the appellants under s. 353 of the Indian Penal Code and sentenced them to 4 months’ rigorous imprisonment. The decree-holders Panu Sahu and Naha Sahu levied  execution of  the  decree (Ex.  Case No. 125/62) in the Court  of  the Munsif, Puri against the appellants and a writ of attachment of  the  moveables  of the judgment-debtor  was  issued  for execution  through P.W. 2, Sadhu Charan Mohanty, a  peon  of the Civil Court, Puri, returnable by August 10, 1962.   P.W. 2 reached the village of the judgment-debtors on August  10, 1962 at 10 a.m. with the warrant of attachment and asked the judgment-debtors  to pay the decretal dues of Rs. 952  -  10 nP,  and when he was going to seize some of  the  moveables, the  appellants  came there with lathis  and  resisted  him. P.W.  2  sent a report-Ex. 4-to the Court  through  Nabaghan requesting the Court to give necessary police help.   Accor- dingly  on  the same day the Munsif wrote a letter,  Ex.  2, requesting the Superintendent of Police, Puri to direct  the Officer-in-charge,  Sadar Police Station, to give  immediate police  help  to the process server.  In pursuance  of  this letter,  P.W. 1, the Assistant Sub.Inspector,  Sadar  Police Station,   Puri  was  deputed  along  with  two   constables including  P.W.  3,  Constable no. 613.  They  went  to  the village  Sanua  where  the  writ of  attachment  was  to  be executed ’ P.W. 6 the Naib Sarpanch and P.W. 8 the Chowkidar of the village Chhaitna also accompanied them.  On  reaching the spot, they found P.W. 2 sitting in front of the house of Durga  Charan Naik-One of the judgment-debtors.  The  A.S.I. then  called out Fakir Charan Naik, father of  Durga  Charan Naik  one of the judgment-debtors, who opened the  door  and paid  Rs.  952 - 10 nP to the process server,  Sadhu  Charan Mohanty  and obtained a receipt from him.  After  the  money was  paid, all of them left the village and at about 7  p.m. while  they were crossing a river nearby in a boat,  P.W.  I saw the appellant Durga Charan with 10 or 12 persons  coming from  the  opposite  direction.   On  seeing  them,  P.W.  I apprehended  some trouble and directed P.W. 2 to  hand  over the  money  to the chowkidar, P.W. 8. When all of  them  got down from the boat, appellant Durga Charan forcibly  dragged the  A.S.I.  A number of other persons including  the  other appellants  assembled at the spot.  Durga Charan  threatened to assault the A.S.1 if he did not return the money.   Durga Charan  also searched hi pockets and  Netrananda  threatened the A.S.I. by saying that he would not leave the place until the  money  was  returned.  When P.W. I wanted  to  write  a report to his police station, Netrananda MllSup.Cl/66-9 638 obstructed  him by holding his right hand.  Bipra and  Jugal caught hold of the hands of P.W. 2 and took him to the river

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bank  and  demanded  return  of  the  money.   Then  at  the intervention of some outsiders the appellants left the spot. P.W.  I  lodged the first information report at  the  police station next morning and after investigation the  appellants were charge sheeted and committed to the court of Sessions. The appellants were charged under ss. 143/402, Indian  Penal Code on the allegation that they formed an unlawful assembly with the common object of committing dacoity.  Durga Charan, Jugal,  Bipra along with three others were  further  charged under  s.  186,  Indian Penal Code  for  having  voluntarily obstructed  P.Ws  I and 2 in the discharge of  their  public duty.   Durga Charan and Netrananda were also charged  under s.  353,  Indian Penal Code for having used  criminal  force against  P.W.  I and Bipra Charan and Jugal  were  similarly charged  under  s. 353, Indian Penal Code  for  having  used criminal  force against P.W. 2 while both of them were  dis- charging  their  duty as public  servants.   The  Additional Sessions Judge acquitted the appellants of all the  charges. The State Government took the matter in appeal to the Orissa High  Court  which  set aside the order  of  acquittal  with regard to the 4 appellants and convicted them under s.  353, Indian Penal Code.  The High Court, however, held that there was no satisfactory evidence to convict the appellants under ss. 143/402, Indian Penal Code.  As regards the charge under s. 186, Indian Penal Code, the High Court expressed the view that  the prosecution was barred under the provisions of  s. 195, Criminal Procedure Code. In  support of this appeal Mr. Garg submitted, in the  first place,  that  the  High  Court  had  no  justification   for interfering  with  the  order of  acquittal  passed  by  the Additional  Sessions Judge and that ’it has not applied  the correct principle in a matter of this description.   Learned Counsel took us through the judgments of the High Court  and of the trial court and stressed the argument that there  was no  evidence upon which the High Court reached  the  finding that  the appellants used criminal force against P.Ws I  and 2.  We  are  unable to accept the argument of  Mr.  Garg  as correct.  The High Court has mainly relied upon the evidence of  P.Ws  1, 2 and 3 and P.Ws 9 to 13 for holding  that  the appellants  used  criminal force against P.Ws I and  2.  The High Court has also observed that P.W. 2 was entrusted  with the  execution  of  the writ of  attachment.   He  was  also entrusted with the official cheque book (Ex. 5) to give  the receipt  in token of payment of the decretal dues.   In  the course  of  his official business P.W. 2  was  carrying  the money  realised  from  the  judgment-debtors  for  necessary deposit  in Court.  So far as P.W. I was concerned,  he  was deputed to render assistance to P.W. 2 in executing the writ of attachment.  It is manifest that both P.Ws. I and 2  were assaulted by the appellants when they 639 were discharging their duties as public servants.  The  High Court  has also accepted the evidence of P.W. I  that  Durga Charan  caught hold of his hands and demanded money  on  the threat  of assault.  P.W. 2, the process server stated  that Bipra  Charan and Jugal caught hold of his hands  and  Durga Charan told him that he would not let anybody go unless  the money was returned.  P.W. 2 added that Bipra and Jugal  also snatched away his bag.  The High Court analysed the evidence of  P.Ws  9  to  13 and  reached  the  conclusion  that  the appellants  used criminal force against P.Ws I and 2 in  the course  of the performance of their duties.  The High  Court has also dealt with the reasoning of the trial court and has pointed  out that the order of acquittal of  the  appellants with regard to s. 353, Indian Penal Code was not  justified.

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In  Sanwat  Singh & Others v. State of Rajasthan(1)  it  was pointed  out by this Court that an appellate court has  full power  to  review  the  evidence upon  which  the  order  of acquittal  is founded and that the principles laid  down  by the  Judicial Committee in Sheo Swarup’s case (2)  afford  a correct  guide for the appellate court’s approach to a  case disposing  of such an appeal.  It was further observed  that different  phraseology used in the judgments of this  Court, such  as  "substantial and compelling  reasons",  "good  and sufficiently  cogent reasons" and "strong reasons"  are  not intended  to  curtail the undoubted power  of  an  appellate Court  in an appeal against acquittal to review  the  entire evidence and to come to its own conclusion, but in doing  so should  not  only consider every matter on record  having  a bearing  on the questions of fact and the reasons  given  by the  Court  below in support of its order  of  acquittal  in arriving at a conclusion on those facts, but should  express the  reasons in its judgment, which led it to hold that  the acquittal  was  not justified.  The same  opinion  has  been expressed by this Court in a later decision in M. G. Agarwal and  M.  K. Kulkarni v. State of Maharashtra  (3).   It  was pointed  out  in that case that there is no doubt  that  the power conferred by cl. (a) of s. 423(1) which deals with  an appeal against an order of acquittal is as wide as the power conferred  by el. (b) which deals with an appeal against  an order  of  conviction, and so, it is obvious that  the  High Court’s powers in dealing with criminal appeals are  equally wide whether the appeal in question is one against acquittal or  against  conviction.   It was  observed  that  the  test suggested  by  the expression  "substantial  and  compelling reasons"  for reversing a judgment of acquittal, should  not be construed as a formula which has to be rigidly applied in every  case,  and  so,  it  is  not  necessary  that  before reversing  a  judgment  of acquittal, the  High  Court  must necessarily  characterise the findings recorded  therein  as perverse.  Tested in the light of these principles laid down by  those authorities, we are satisfied that the High  Court was justified, in the present case, in interfering with  the order of acquittal passed by (1) [1961] 3 S.C.R. 120.       (2) 61 I.A. 398. (3) A.I.R. 1963 S.C. 200. 640 the  Additional  Sessions Judge with regard  to  the  charge under S. 353, Indian Penal Code and the judgment of the High Court  is not vitiated by any error of law.  We  accordingly hold  that Mr. Garg is unable to make good his  argument  on this aspect of the case. We pass on to consider the next contention of the appellants that  the conviction of the appellants under s. 353,  Indian Penal  Code is illegal because there is a  contravention  of s.195(1)  of  the Criminal Procedure Code which  requires  a complaint in writing by the process server or the A.S.I.  It was  submitted  that the charge under s. 353,  Indian  Penal Code  is  based upon the same facts as the charge  under  s. 186,  Indian Penal Code and no cognizance could be taken  of the offence under S. 186, Indian Penal Code unless there was a  complaint  in  writing as required by s.  195(1)  of  the Criminal Procedure Code.  It was argued that the  conviction under  s.  353,  Indian Penal Code  is  tantamount,  in  the circumstances  of  this  case, to  a  circumvention  of  the requirement of s. 195(1) of the Criminal Procedure Code  and the conviction of the appellants under S. 353, Indian  Penal Code 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

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charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian  Penal Code  but it cannot be ignored that ss. 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 under 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.   X of the Indian Penal  Code  dealing  with Contempts of the lawful authority of public servants,  while s.  353 occurs in Ch.  XVI regarding the offences  affecting the  human body.  It is well-established that s. 195 of  the Criminal Procedure Code 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(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 s. 21 1, Indian Penal Code, which is  an  offence against  public justice, and the other an offence  under  S. 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 (1)  24 C.W.N. 982. 641 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 non-compoundable, while the latter remains compoundable;  in one  for the initiation of the proceedings  the  legislature requires  the sanction of the court under S.  195,  Criminal Procedure Code, while in the other, cognizance can 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  ss. 195 to 199 of the Code of Criminal  Procedure.   The decision of the Calcutta case has been quoted with  approval by  this  Court in Basir-ul-Huq and Others v. The  State  of West Bengal (1) in which it was held that if the allegations made  in a false report disclose two distinct offences,  one against  a  public servant and the other against  a  private individual, the latter is not debarred by the provisions  of s.  195, Criminal Procedure Code, from seeking  redress  for the offence committed against him. In  the present case, therefore, we are of the opinion  that S.  195, Criminal Procedure Code does not bar the  trial  of the appellants for the distinct offence under s. 353 of  the Indian  Penal  Code, though it is practically based  on  the same facts as for the prosecution under s. 186, Indian Penal Code. Reference  may be made, in this connection, to the  decision of  the  Federal Court in Hori Ram Singh v. The  Crown  (2). The  appellant in that case was charged with offences  under ss. 409 and 477-A, Indian Penal Code.  The offence under  s.

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477-A could not be taken cognizance of without the  previous consent of the Governor under s. 270(1) of the  Constitution Act, while the consent of the Governor was not required  for the  institution  of the proceedings under  s.  409,  Indian Penal  Code.   The charge was that the  accused  dishonestly misappropriated   or  converted  to  his  own  use   certain medicines  entrusted  to him in his official capacity  as  a sub-assistant  surgeon in the Punjab Provincial  Subordinate Medical Service.  He was further charged that being a public servant,  he wilfully and with intent to defraud omitted  to record  certain  entries  in  a  stock  book  of   medicines belonging  to the hospital where he was employed and in  his possession.  The proceedings under s. 477-A were quashed  by the  Federal Court for want of jurisdiction, the consent  of the Governor not having been obtained, but the case was sent back  to  the sessions judge for hearing on  the  merits  as regards the charge under s. 409, Indian Penal (1) [1953] F.C.R. 159. (2) [1939] F.C.R. 159. 642 Code,  and  the order of acquittal passed  by  the  sessions judge  under  that  charge  was  set  aside.   Two  distinct offences having been committed in the same transaction,  one an offence of misappropriation under s. 409 and the other an offence  under s. 477-A which required the sanction  of  the Governor,  the  circumstance that cognizance  could  not  be taken  of  the latter offence without such consent  was  not considered by the Federal Court as a bar to the trial of the appellant with respect to the offence under s. 409. We  have expressed the view that s. 195, Criminal  Procedure Code  does  not  bar the trial of an accused  person  for  a distinct offence disclosed by the same or slightly different set  of facts and which is not included within the ambit  of the section, but we must point out that the provisions of S. 195 cannot be evaded by resorting to devices or  camouflage. For instance, 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, on the ground  that  the  latter offence  is  a  minor  one of  the  same  character,  or  by describing  the offence as 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  s. 195, Criminal Procedure Code.   Merely  by changing   the  garb  or  label  of  an  offence  which   is essentially  an offence covered by the provisions of s.  195 prosecution  for such an offence cannot be taken  cognizance of  by misdescribing it or by putting a wrong label  on  it. On  behalf  of the appellants Mr. Garg  suggested  that  the prosecution  of  the appellants under s. 353,  Indian  Penal Code  was by way of evasion of the requirements of  s.  195, Criminal Procedure Code.  But we are satisfied that there is no substance in this argument and there is no camouflage  or evasion in the present case. For  these  reasons we hold that the judgment  of  the  High Court  dated March 2, 1964 must be affirmed and this  appeal must be dismissed. Appeal dismissed. 643