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Banshilal Dukhiram and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1954CriLJ15
AppellantBanshilal Dukhiram and anr.
RespondentThe State
Excerpt:
- .....imprisonment under section 186 and the other of 6 months rigorous imprisonment under section 506, penal code, by the second class magistrate, sakti; and the district magistrate, raigarh, affirmed the convictions but reduced the sentences to 2 concurrent sentences of 6 weeks rigorous imprisonment in each case. the applicants have now come up in revision to this court.2. the prosecution case was, briefly stated, as follows. on 7-9-1951, narsingprasad (p. w. 1), range officer, went with the search warrant exhibit p-1, which had been issued by the divisional forest officer, raigarh division to the house of the applicant nathuram in order to search for young bamboo shoots which had been stolen. nathuram did not permit him to search the house and uttered the following threat:if any body will.....
Judgment:
ORDER

Hemeon, J.

1. The applicants Banshilal and Nathuram were convicted and each sentenced to undergo 2 concurrent terms, one of 3 months' rigorous imprisonment under Section 186 and the other of 6 months rigorous imprisonment under Section 506, Penal Code, by the Second Class Magistrate, Sakti; and the District Magistrate, Raigarh, affirmed the convictions but reduced the sentences to 2 concurrent sentences of 6 weeks rigorous imprisonment in each case. The applicants have now come up in revision to this Court.

2. The prosecution case was, briefly stated, as follows. On 7-9-1951, Narsingprasad (P. W. 1), range officer, went with the search warrant Exhibit P-1, which had been issued by the Divisional Forest Officer, Raigarh Division to the house of the applicant Nathuram in order to search for young bamboo shoots which had been stolen. Nathuram did not permit him to search the house and uttered The following threat:

If any body will carry out the search, I will kill him; and if any body enters the house, I will lock it from outside.

Narsingprasad then went to search the house of Mohan Teli, but the applicant Banshilal inhibited him from entering it and said:

Who is that 'sala' who would take the search of my house. I am patel of the village. I will kill that 'sala' who will search the house. His dead body will go back from this place.

3. Narsingprasad was accompanied by Jhaduram (P. W. 3) and Baldeo (P. W. 4) on those occasions; and Chandilal, constable, was with him when Banshilal refused to permit a search of his house and threatened the range officer. The latter made the report Exhibit P-2 at the Sakti police-station, 10 miles away, on 8-9-1951 and in it cited as witnesses Chandilal (P. W. 2) and Jhaduram (P. W. 3) but not Baldeo (P. W. 4).

4. The applicant Nathuram in -examination denied that he had inhibited the range officer Narsingprasad from searching his house or that he had threatened him, but he admitted that he had opened the door of his house for him, although he could not explain why the search had not taken place. The applicant Banshilal admitted that he had prohibited Narsiugprasad from entering his house, but he denied that he had threatened to beat him. After the charges had been read out to the applicants, they both pleaded guilty and admitted that they had prevented him from searching their houses and had threatened to beat him.

5. The accused were challaned under Sections 186 and 506, Penal Code, on the basis of a report made by Narsingprasad, but Section 195(1) (a), Criminal P. C., lays down that no Court shall take cognizance of any offence punishable under Sections 172 to 188, Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. 'Complaint' is defined in Section 4(1)(h) 'ibid'; and in - 'Emperor v. Babulal Munnilal' AIR 1936 Nag 86, Gruer J. has held that the report of a police officer, whether in a non-cognizable or in a cognizable offence, does not amount to a complaint. The Second Class Magistrate, Sakti, was, therefore, not empowered to take cognizance of the offence under Section 186, Penal Code, although he was entitled to take cognizance of the offence under Section 506 'Ibid'.

6. As the Court acted without jurisdiction with regard to a part of the trial, the whole proceedings are vitiated by the illegality committed and any conviction based on such proceedings cannot stand. This was the view taken in - 'Rudragouda Rachan-gouda v. Emperor AIR 1937 Bom 160, by a Division Bench; and it was followed in - 'Ramchandra v. Emperor' AIR 1939 Bom 129 (C). I am in respectful agreement with those rulings; and it follows that the trial of the applicants under Section 506, Penal Code, was also without jurisdiction.

7. The convictions and sentences are, therefore, set aside and the proceedings are quashed.


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