BIRENDRA KUMAR DAS Vs. TULASI DEI AND ORS.
LAWS(ORI)-1978-9-6
HIGH COURT OF ORISSA
Decided on September 19,1978

BIRENDRA KUMAR DAS Appellant
VERSUS
Tulasi Dei And Ors. Respondents

JUDGEMENT

S.K. Ray, J. - (1.) THE sole question for determination is whether cognizance of offences under Sections 186 and 353. Indian Penal Code taken on the basis of a complaint filed by the Munsif, First Court, Cuttack that the Process Server entrusted with a writ of delivery of possession for execution issued by him was assaulted abused and threatened in various other ways along with the decree -holder and police officer who had accompanied him at the time, by the opposite parties thereby successfully preventing him from executing the writ of delivery of possession, was barred under Section 195(1)(a) of the Code of Criminal Procedure. This involved the question whether the Process Server was subordinate to the Munsif, First Court.
(2.) THE facts may be briefly stated. The Petitioner obtained a decree for declaration of his title to Ac. 0.120 dec. of land comprised in plot No. 99 under khata No. 1 of mouza Tulsipur ana delivery of possession of the same against opposite party No. 2 judgment -debtor. Since vacant possession was not delivered voluntarily, the Petitioner levied ' execution of his decree in Execution Case No. 120 of 1974 in the Court of the Munsif, First Court, Cuttack, who issued a writ of delivery of possession and entrusted the same to Mirza Amjad Beg, Process Server of Civil Court for execution. On 19 -4 -1974 at 9.30 a. m. the said Process Server went to the suit land to deliver vacant possession of the same to the decree -holder - Petitioner accompanied by the decree -holder, a police officer, another gentleman (who are respectively witness Nos. 1, 4 and 2 in the complaint petition) and a drummer. On reaching the village he called upon the judgment -debtor No. 1 - opposite party No. 2 and read out the contents of the writ of delivery of possession and requested her to deliver possession of the suit land according to his identification. He also asked the drummer to beat drum. Thereupon, all the three opposite parties 1 to 3 armed with knife, katari and night -soil pot abused the Process Server, the decree -holder, the police officer and the gentleman who had accompanied the Process Server. Opposite party No. 2 raised the katari in her hand and threatened to kill the decree -holder and the Process Server if they proceeded to the suit land for delivery of possession. Opposite party No. 1, daughter of opposite party no 2, sprinkled the night -soil with the help of a broomstick at the decree -holder and the Process Server and the other people who had accompanied them and likewise threatened to kill whoever proceeded to the spot for delivering possession. Opposite party No. 3. daughter -in -law of opposite parry No. 2, similarly threatened the Process Server and others accompanying him, with a tangia. Thus obstructed, the Process Server returned the writ with a report of such obstruction to the First Munsif. The latter took evidence and being satisfied about the various overt acts of the opposite parties complained of, filed a complaint before the Sub -Divisional Judicial Magistrate who registered a case No. 2(c)C. C. 57 of 75 and took cognizance of the offences Under Section s. 186 and 353 of the Indian Penal Code and summoned the opposite parties to stand their trial. On their appearance the said case was transferred to the Court of Shri L. Mohanty, Judicial Magistrate, First Class, Cuttack for disposal according to law.
(3.) A preliminary point was raised before the transferee Magistrate that the Process Server who was obstructed and assaulted in course of execution of the warrant of delivery of possession not being administratively subordinate to the First Munsif, Cuttack, the latter had no power to file the complaint petition and, as such, cognizance of the case was barred under Section 195 (l)(a) of the Code of Criminal Procedure. This point found favour with the Magistrate and be, accordingly, acquitted the opposite parties under Section 255(1), Code of Criminal Procedure by his order dated 21 -8 -1977 passed in 2(c)C. C. No. 57 of 1975. In so doing, he held that the Process Server was not administratively subordinate to the First Munsif and, as such, cognizance was barred under Section 195(1)(a), Code of Criminal Procedure so far as Section 186. Indian Penal Code was concerned. With regard to the case under Section 353, Indian Penal Code he further held that the element of insult and assault being so interwoven they became merged one with other and the same could not be split up so as to evade the provision under Section 195, Indian Penal Code and hence no proceeding under Section 353, Indian Penal Code could be taken against the accused without the written complaint of the public servant". The relevant provision of Section 195(1), Code of Criminal Procedure reads as follows: 195(1). No Court shall take cognizance - (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code, or (ii) x x x (ill) x x x except on the complaint in writing of the public, servant concerned or of some other public servant to whom he is administratively subordinate." ;


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