MAKARADHWAJ SAHU Vs. STATE
HIGH COURT OF ORISSA
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Panigrahi, C.J. -
(1.) The two petitioners have been convicted under Section 188, I.P.C. Petitioner No. 1, Makardhwaj has, in addition, been convicted under Section 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.
(2.) 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 cognisance of an offence under Section 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 cognisance of the offence has been taken in accordance with law. I have therefore no doubt in my mind that the conviction of the petitioner under Section 186, I.P.C. is not sustainable and must be set aside.
(3.) So far as the offence under Section 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.;
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