1. The applicant Maganbhai of Gondia was convicted and sentenced to undergo 4 months' rigorous imprisonment under Section 353, Penal Code by the Second Class Magistrate, Gondia; and in appeal, the appellate Magistrate, Bhandara, affirmed the conviction but replaced the sentence by a fine of Rs. 500/-. The applicant has now come up in revision to this Court.
2. The prosecution case was, briefly stated, as follows. On 1.11.1950, V.N. Kukde (P.W. 6), Sub-Inspector. Central Excise, went, in accordance with the Superintendent's direction, to the applicant's godown in order to verify the stock of tobacco in it before issuing a permit for removing that commodity from it. When he met the applicant and apprised him of this, the applicant asked him to produce a written order from the Superintendent and refused to weigh the stock. V.N. Kukde then asked him to accompany him to the Superintendent, but he became angry and announced that he would not do so or weigh the stock, V.N. Kukde in formed him that unless the weighments were made, a fresh permit would not be issued and the applicant gave an angry answer. V.N. Kukde accordingly returned to the Superintendent to whom he reported the matter and who deputed Mahabub (P.W. 2), Naik, Central Excise Department, to accompany him to the applicant's shop.
3. On arrival there, the applicant abused V.N. Kukde vulgarly and ran to beat him with a shoe, but Mahabub intervened, caught him and prevented him from hitting V.N. Kukde. The latter then went to an adjoining shop and sent Mahabub with a letter to the Superintendent. The latter deputed M.M. Pathak (P.W. 4), Range Officer, Central Excise, to accompany him to the applicant's shop. The applicant at first refused to permit the weighment of his stock but eventually agreed to this, and on M.M. Pathak's advice left the shop in order to avoid a quarrel with V.N. Kukde. Later on at about 5.15 p.m. the weighment began but at about 6 p.m. the applicant after his return wanted it to scope pointed out that he had guests in the house and complained that he was being harassed. The weighment then continued, in spite of the applicant's periodical obstruction; and the applicant ran towards his shop with a cane with which to beat V.N. Kukde whom he was abusing filthily. M.M. Pathak told V.N. Kukde to leave the shop and when the applicant saw him on the road, he turned towards him but some bystanders intervened and took him-away. V.N. Kukde thereafter made the report Ex. P-1 to Y.K. Uttarwar (P.W. 1), Sub-Inspector, who carried out the investigation and had the applicant duly identified.
4. The applicant in examination denied that he had questioned V.N. Kukde's authority, that he had rushed towards him with a shoe in order to beat him or that he had abused him filthily. He admitted that M.M. Pathak had come to his shop subsequently, but he denied that his stock of tobacco was in excess of the amount noted by him or that he had again abused V.N. Kukde, or that having snatched the cane article A from N.P. Tiwari (P.W. 5) he had rushed at V.N. Kukde in order to attack him with it. In defence, he asserted his innocence and claimed that he had been falsely implicated because of V.N. Kukde's animus to him. Two witnesses were examined in defence, but their evidence was apparently not accepted by-the two Courts below.
5. In argument the applicant's learned Counsel Shri G.B. Badkas raised the cogent contention that the trial Court was not empowered to take cognisance of the case without a complaint in writing of the public servant concerned or of some other public servant to whom he was subordinate, inasmuch as Section 195(1)(a), Criminal P.C. requires a complaint of that kind in respect of any offence punishable under 'inter alia' Section 186, Penal Code. Here the charge-sheet refers to Sections 353 and 186 'ibid'; and the order-sheet, dated 11.12.1950, shows that the trial Court had noted this and directed the issue of summons to the applicant, although no written complaint of the type referred to above had been filed. No such complaint was required in respect of an offence punishable under Section 353, Penal Code, and the question then is whether or not such complaint was essential when an offence under Section 186 'ibid' was joined to it.
6. It is true that the applicant was net charged under Section 186 and was charged only under Section 353, but the fact remains that he was 'challaned' under that section read with Section 186. Nor can it be said that the material on record indicated that there was no case against him under that section, viz., for voluntarily, obstructing a public servant in the discharge of his public functions. V.N. Kukde's first information report Ex. P-1 not only described the applicant's assault on him with a shoe but categorically referred to the obstruction which the applicant offered when he reached his go-down and told him that he proposed to weigh his stock of tobacco.
7. In-Tikaram v. Emperor AIR 1945 Nag 210 (A) I had pointed out that although an offence under Section 186, Penal Code may be present in the more serious offence under Section 353 'ibid', it is ancillary to the latter and no question of attracting the provisions of Section 195(1), Criminal P.C. arises unless the prosecution seeks to include the offence under Section 186 with the more serious offence under Section 353, Penal Cede. Here, as indicated, the prosecution had sought to include an offence under Section 186 with an offence under Section 353 'ibid', and it follows that under Section 195(1)(a) V.N. Kukde's complaint in writing or such complaint by any other public servant to whom he was subordinate was essential before the Court could take cognisance of the offence punishable under Section 186, Penal Code. The proceedings will, therefore, have to be quashed, & in the circumstances I do not propose to advert to the merits of the contentions concerning the scope of V.N. Kukde's authority, the applicability of Section 352 rather than Section 353, Penal Code or the applicant's liability under either of the sections.
8. The conviction and sentence are accordingly quashed and the fine, if paid by, shall be refunded to the applicant Maganbhai who shall not (sic) be retried according to law.