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Rajaram Gangaram Athale Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1969CriLJ1459
AppellantRajaram Gangaram Athale
RespondentState of Mysore
Excerpt:
- mines and minerals (regulation and development) act (67 of 1957) section 5 & 11(3) & forest (conservation) act, 1980, section 2 & mineral concession rules, 1960, rule 630-a: [p.d. dinakaran, c.j.& v.g. sabhahit,j] restriction on grant of prospecting licenses or mining leases restriction on de-reservation of forests or use of forest land for non-forest purpose - writ jurisdiction public interest litigation petitioners sought to direct respondents not to issue any mining leases in respect of iron ore, until all existing steel industries are issued captive mining leases; to grant captive mining leases to steel manufacturing industries in proportion to their respective licensed capacity on preferential basis; etc.- held, thus section 11(3)(d) of the mmdr act specifically contemplates..........was a com-plaint, though what was before them, as can be seen from the records in the case, was a charge sheet which had been placed by the police sub-inspector, gandhi chowk, bijapur.4. the allegations against the accused, briefly stated were that on 6-8-1967 at about 10-15 p.m. ha offered obstruction to a police constable by name chandkhan martujakhan, in the course of the discharge of his duties and had also need insulting and abusive language towards the said police constable.5. the fact that there is only a charge sheet, and not a complaint by the said police constable to whom obstruction had been offered, is a very material circumstance.6. section 195(1)(a) of the code of criminal procedure is as follows:no court shall take cognizance of any offence punishable under sections 172.....
Judgment:
ORDER

M. Sadasivayya, J.

1. The petitioner in this case was the accused in or. Case No. 1826 of 1967 in the Court of the Judicial Magistrate, First Class, II Court, Bijapur. The offences which have been alleged against him were those punishable under Section 186 and Section 504 or the Penal Code. On the date which had been fixedfor hearing, the pleader the accused filed an application (dated 25.8-1967) taking an objection on the ground that as there was no complaint but only a police report, the court could not take cognizance of the offence underS. 186, Penal Code in view or the provisions contained in Section 195(1)(a) of the Code of Criminal Procedure, The learned Magistrate dismissed this application of the accused, A revision petition (Criminal Revision Petition 28 of 1967) filed against the said order and which was heard by the Additional Sessions Judge, Bijapur, was also dismissed. Hence the present revision petition before this Court.

2. I have heard Sri K. A. Swami, the learned Advocate for the petitioner and Sri G. Dayanand, learned Advocate for the State Public Prosecutor.

3. Both the Courts below appear to have proceeded on the basis that there was a com-plaint, though what was before them, as can be seen from the records in the case, was a charge sheet which had been placed by the police Sub-Inspector, Gandhi Chowk, Bijapur.

4. The allegations against the accused, briefly stated were that on 6-8-1967 at about 10-15 P.M. ha offered obstruction to a Police Constable by name Chandkhan Martujakhan, in the course of the discharge of his duties and had also need insulting and abusive language towards the said Police Constable.

5. The fact that there is only a charge sheet, and not a complaint by the said Police Constable to whom obstruction had been offered, is a very material circumstance.

6. Section 195(1)(a) of the Code of Criminal Procedure is as follows:

No Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the com-plaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate....

Having regard to the language of the above provision, it is clear that in respect of the alleged offence under Section 186 of the I.P.C. the Magistrate could not take cognizance of the same, unless there was a com-plaint in writing of the Police Constable or a complaint of some other public servant to whom the said Police Constable is subordinate.

7. The definition of 'complaint' as found in Section 4(1)(h) is as follows:

Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action, under this code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officerThis definition excludes the report of a Polios Officer from a 'complaint.

8. To my mind, it appears that this distinction which has been made by the statute between a complaint and the 'report' of a police officer must be maintained and ought not to be mixed up with each other. In a decision of the Rajasthan High Court reported in , it has been pointed out by Chief Justice Wanchoo, that the words 'complaint in writing' appearing in Section 195(1)(a) of the Cr. P.C. refer to a formal complaint as defined in Section 4(1)(h).

In a decision of the former High Court of Mysore A I R 1955 Mys l it has been held that in respect of an offence punishable under Section 182 of the I.P.C. a charge sheet submitted by the Police cannot be held to be a complaint for the purposes of Sections 195(1)(a) of the Cr. P.C.

Thus, if there has been no complaint in writing, no cognizance can be taken of any offence punishable under Sections 172 to 188 of the I.P.C.

Mr. Dayanand sought to contend that in the present case the charge being one in respect of non-cognizable offences it could be treated as a complaint. There are two impediments to this contention being accepted. Firstly, the charge sheet is not in the writing of the Police Constable in respect of whom the alleged offence under Section 186 was committed; it is not signal by him; therefore, it cannot be treated as a complaint in writing by the public servant concerned. Secondly, the police Sub-Inspector has signed this charge-sheet in his capacity as P. S. I. Gandhi Chowk, Bijapur There is nothing in the charge-sheet to indicate that the said police Sub-Inspector purported to act as the official superior of the Police Constable concerned, and was making a complaint in writing on behalf of the Subordinate official namely, the Police Constable concerned. In these circumstances, the charge-sheet, though it is in respect of non-cognizable offences, cannot be created as a complaint in writing, for the purposes of Section 195(1)(a) of the or. P.C.

9. For the reasons aforesaid, it was not open to the Magistrate to have taken cognizance of the alleged offence under Section 186 of the I. P.C. Though the alleged offence under Section 504 of the I.P.C. may have been part of the same transaction that is distinct offence. From what has been stated by the Supreme Court in a decision reported in : 1966CriLJ1491 , Durga Charan v. State of Orissa it is clear that there is no legal impediment to the accused being proceeded against, for the alleged offence under Section 504 of the I. P.C. in spite of the Magistrate being barred from taking cognizance of the alleged offence under Section 136 of the I. P.C.

10. In the result, this revision petition is allowed only in so far as the alleged offence under Section 186 of the I.P.C. is concerned and it is ordered that the Magistrate shall not take cognizance of the alleged offence under Section 186 of the I. P.C. but he may proceed in accordance with law, so far as the alleged offence under Section 504 of the I.P.C. is concerned.


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