- (1.)THIS is an application in revision by the State against the order of the learned Sessions Judge, Jodhpur, dated 10th January, 1967 by which he maintained the order of discharge passed by the Additional Munsif Magistrate No. 2 Jodhpur City in favour of Prithvi Singh non-petitioner for offences under sec. 451, 332 and 353 of the Indian Penal Code holding that the cognisance of these offences could not be taken because on the facts alleged offence under sec. 186 of the Indian Penal Code was essentially made out and of which cognisance could not be taken except on the complaint in writing of the public servant concerned as is provided in sec. 195 (1) of the Code of Procedure. The learned Additional Munsif Magistrate for his order relied upon an unreported decision of this Court in S. B. Cr. Reference No. 92 of 1963 (Mangilal vs. State) decided on 1-8-1963. The learned Sessions Judge also maintained the order relying upon Mathuvelu vs. Samiah Kodumburan (1) and Sindhi Nathuram Atmaram vs. The State (2 ).
(2.)I have been informed that the subordinate courts acting upon the decision of this Court in S. B. Cr. Reference No. 92 of 1963 are not taking cognisance of the offences under sec. 332 and 353 of the Indian Penal Code on the ground that on the same facts offence under sec. 186 of the Indian Penal Code is also made out and no complaint as required under sec. 195 (1) of the Code has been filed by the public servant concerned.
In the present case Krishen Kumar L. D. C. of the Sale-tax Department, Jodhpur, was collecting sale tax at Check Post, Sursagar on 17th June, 1966 at about 9-30 a. m. and was issuing a receipt to one Kalu when the non-petitioner driving his truck No. RJQ 242 arrived there and asked the clerk to clear him first because he was running short of diesel oil. The clerk replied that he would first issue receipt to Kalu who had come first and then he would collect the tax from the non-petitioner. Upon this the non-petitioner got enraged, started abusing the clerk, snatched the receipt book from his hand and threw it. The clerk went out to pick up the receipt book and warned the non-petitioner that he was committing an illegal act for which he could be hauled up. The non-petitioner thereupon grappled with the clerk and gave him four or five fist blows. Some other persons who were near about, rescued the clerk from being further beaten. Krishen Kumar then made a report at the Police Station Division 'd', Jodhpur on the same day at about 4. 30 p. m. and the police after investigation submitted a charge sheet under secs. 451, 353 and 332 of the Indian Penal Code against the non-petitioner in the court of the Additional Munsif-Magistrate No. 2, Jodhpur City.

A preliminary objection was raised before the learned Additional Munsif-Magistrate that on the facts alleged offence under sec. 186 of the Indian Penal Code was made out and since Krishen Kumar or any of his superior officer had not filed the complaint as required under sec. 195 (1) of the Code, the Court was not entitled to take cognisance of the aforesaid offences. This objection prevailed and the learned Additional Munsif-Magistrate recorded an order of discharge. A revision was preferred against the said order before the learned Sessions Judge, Jodhpur but that too was rejected. The State has now come to this Court in revision and the learned Additional Government Advocate has contended that the view taken by the courts below is erroneous.

It is true that under sec. 195 (1) of the Code a court is debarred from taking cognisance of any offence punishable under secs. 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate, and this provision cannot be circumvented by resorting to devices such as charging the accused with another offence even though essentially the offence mentioned in the above sections is made out. But the question for determination is that when on the same facts or with some additional facts two distinct offences; one requiring a complaint by the public servant concerned and the other to which section 195 (1) of the Code is not applicable are made out, cognisance of the latter offence can be taken by the court or not in the absence of a complaint in respect of the former offence. The learned Additional Munsif Magistrate has referred to the decision of this Court in S. B. Cr. Reference No. 22 of 1963 (Mangilal vs. State) and it appears from the judgment that there the accused was alleged to have abused, assaulted and beaten up the process server when he approached him to effect service of notice upon him under the Rajasthan Sales-tax Act. The process server made a report to his superior officer who in turn forwarded the report to the Deputy Superintendent of Police and the case after investigation was challaned under secs. 332 and 353 of the Indian Penal Code. Before the trial Magistrate an objection was raised on behalf of the accused that on the facts in reality, an offence under sec. 186 of the Indian Penal Code was made out and he could not be prosecuted except upon the complaint in writing of the process-server or his superior officer. The learned Additional Munsif Magistrate over ruled the objection on the ground that the offences under secs. 332 and 353 were distinct and separate offences and, therefore, no complaint was necessary for the trial of these offences.

On revision the learned Sessions Judge made a reference to quash the proceedings and a learned Judge of this Court observed: "whether the particular offences for which a person is prosecuted are separate and distinct from an offence requiring a complaint of specific authorities is essentially a question of fact and it will be hardly proper to lay down any general principle for determining such a controversy. In the facts and the circumstances of the present case the learned Assistant Government Advocate has conceded that the offence committed by the petitioner is essentially and in substance an offence under sec. 186, Indian Penal Code. According to him, the very act of assaulting and causing hurt constituted a resistance or obstruction to the act of the process server of effecting service of notice upon the accused. He has accordingly not opposed the reference. " As the reference was not opposed the learned Judge accepted the reference and quashed the proceedings against the accused. This case, however, does not lay down that if in the course of the same transaction or on the same facts separate and distinct offence not requiring a complaint by the public servant is also made out, its cognisance cannot be taken by the courts. In Muthuvelu vs. Samiah Kodumburan (1) which has been relied upon by the learned Sessions Judge, an information was given to the village Munsif that a lady has been done to death due to beating by her husband. The village Munsif gave a report to the police station incorporating the above information. The police investigation however, revealed that the complaint was not true and that the death was due to natural causes. The husband of the deceased thereafter filed a private complaint against the village Munsif and also against the informant accusing them of having given false information to the police with a view to prosecute him for a charge of murder. The complaint was taken on file by the Sub-Magistrate under sec. 182 of the Indian Penal Code and after enquiry under sec. 202 of the Code, the case was filed no longer under sec. 182 of the Penal Code but under sec. 211 of the Penal Code. At the commencement of the trial the village Munsif took an objection that on the facts of the case the complaint disclosed an offence under sec. 182 which could not be entertained in the absence of a complaint as provided under sec. 195 (1) of the Code. The Magistrate overruled the objection, but the learned Sessions Judge made a reference to the High Court being of the view that the objection was valid. The learned Judge observed that if all the above facts are considered it is quite clear that the motive of the village Munsif and the co-accused was to induce the public servant not merely to do what he would not otherwise have done but to take a specific action of investigating the offence and prosecuting the person complained against. It is therefore clear that if whole of the facts in this case are examined the only section which is appropriate and which must be applied is sec. 231 and it would be obviously anomalous and in every respect undesirable if the law were that simply because an offence under sec. 182 was also disclosed and because for the trial of such an offence a written complaint from a public servant is necessary the court should be debarred from inquiring into the real nature of the offence which comes within sec. 211. This case does not help the non-petitioner in any way. In Sindhi Nathuram Atmaram's case (2) relied upon by the Sessions Judge, the facts were that Sindhi Atmaram Nathuram went to the office of the Administrator of the Abu Road Municipality and obstructed the Administrator in the discharge of his official duties and threatened him. A report was made to the police and the Sub-Inspector made a complaint to the Magistrate against the accused An objection was raised that in view of sec. 195 (1) (a) of the Code of Criminal Procedure, the Magistrate had no jurisdiction as no complaint had been made by the public servant concerned in writing or by any one superior to that public servant. The Magistrate overruled the objection, but the Additional Sessions Judge made a reference and the High Court accepted it. It would be clear from the facts stated above that there in reality offence under sec. 186 only was made out and so a complaint as required by sec. 195 (1) a), was necessary. He was also charged under sec. 506 of the Indian Penal Code and in regard to that charge the High Court said that because it arises out of the same facts and it would be improper that the complaint should proceed under sec. 506, as the Magistrate had no jurisdiction over the main offence that had been committed. This case also does not help the non-petitioner.

In view of the pronouncement of the Supreme Court on this specific question it is unnecessary to discuss other cases decided by the various High Courts. Before the decision of the Supreme Court in Basir-ul-Huq vs. The State of West Bengal (3), there was a conflict of judicial decisions as to the necessity of a complaint under sec. 195 of the Code, where the facts of the case amounted to two offences one of which fell under sec. 195 and the other did not and it was held by the Supreme Court that: "sec. 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section but the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which complaint of the Court or of the public servant is required. " It was further observed that: "offences falling under secs. 182 and 500. Penal C.- The ingredients of the offence under sec. 182 cannot be said to be the ingredients for the office under sec. 500. Nor can it be said that the offence relating to giving false information relates to the same group of offences as that of defamation. Offence under sec. 500 can be tried without sanction under sec. 195, Criminal P. C. " In a recent case in Durgacharan Naik and others vs. State of Orissa (4) it has been held that: "secs. 186 and 353 of the Penal Code 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 the two offences are also distinct. Sec. 186, Penal Code, is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under sec. 353, 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. Sec. 186 occurs in Chapter X of the Penal Code dealing with contempts of the lawful authority of public servants, while sec. 353 occurs in Ch. XVI regarding the offences affecting the human body. Sec. 195 of Cr. P. C. does not bar the trial of the accused for the distinct offence under sec. 353 of Penal Code, though it may be practically based on the same facts as for the prosecution under sec. 186 of the Penal Code which is barred for want of necessary sanction under sec. 195, Cr. P. C. " It was further held that: "sec. 195 of Cr. P. C. does not bar the trial of an accused person for a distinct offence by the same or slightly different set of facts and which is not included within the ambit of the section, but provisions of sec. 195 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 same other section of the Penal Code, though in truth and substance the offence falls in the category of sections mentioned in sec. 195 Cr. P. C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of sec. 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. "

It would thus appear that if two distinct and separate offences are made out; one requiring a complaint under sec. 195 and the other not requiring such complaint the Court is not debarred from taking cognizance of the latter offence. But the court should see that the provisions of sec. 195 of the Code are not evaded by devices. In view of these pronouncements of the Supreme Court, it is quite clear that when in the same transaction and on the same facts offences under secs. 186, 332 and 353 are made out, cognizance of the latter two offences can be taken by the courts even though no complaint under sec. 195 of the Code has been filed for offence under sec. 186 of the Penal Code. In the present case the non-petitioner caused hurt by giving first blows to the clerk while he was picking up the receipt book in order that he might be able to discharge his official duty and so this act of the petitioner would prima facie amount to his committing an offence under sec. 332 of the Indian Penal Code which is quite distinct and separate from offence under sec. 186 of the Indian Penal Code.

I, therefore, accept revision application, set aside the order of discharge and send the case back to the court of the trial Magistrate who would proceed with the case in accordance with the provisions of sec. 251-A of the Code of Criminal Procedure. .

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