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Radhey Shyam Gupta Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 355 of 1965
Judge
Reported inAIR1968All342
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195 and 195(1); Indian Penal Code (IPC), 1860 - Sections 228 and 253
AppellantRadhey Shyam Gupta
RespondentThe State
Appellant AdvocateR. Dwivedi, Adv.
Respondent AdvocateR.K. Shukla, Addl. Govt. Adv.
DispositionPetition allowed
Excerpt:
- - , was perfectly legal because there was nothing in sections 195 to 399, cr. , can only be initiated at the instance of the person defamed, in like manner as cognizance for an offence under section 182 cannot be taken 'except at the complaint of the public servant concerned' 6. the matter was considered in out own high court in ram harsh tiwari v......that you on the same day at the same time and place assaulted r. s. lal, sub-registrar, a public servant with intent to deter him and prevent him from discharging his duty of registering a deed as public servant, and thereby committed an offence punishable under section 358, i.p.c.' 3. an objection was raised on behalf of the accused challenging the jurisdiction of the magistrate to take cognizance of the offence without a complaint in writing oi the public servant concerned as required by section 195 (1), cr.p.c. the magistrate upheld the objection as regards the charge under section 228, i.p.c., but overruled it with respect to section 353, i.p.c 4. the main point canvassed at the bar was whether it was permissible for the prosecution to split up the facts of the case in order.....
Judgment:
ORDER

D.P. Uniyal, J.

1. This is an application to revise an order of the Sessions Judge upholding the jurisdiction of the Magistrate to proceed with the trial of the accused under Section 333, I.P.C.

2. On an information lodged with the police a case under Sections 228 and 353, I.P.C., was sent up against the accused to the Court of the Magistrate who framed charges against him in these terms:--

'Firstly, that you on or about the 17th day of August 1953 at about 4 p.m. in Civil Lines at the Registration Office, Orai, intentionally offered insult and caused interruption to R. S. Lal, Sub-Registrar, while he was sitting in a stage of Judicial proceeding, namely, was registering a document, and thereby committed an offence under Section 228, I.P.C.

Secondly, that you on the same day at the same time and place assaulted R. S. Lal, Sub-Registrar, a public servant with intent to deter him and prevent him from discharging his duty of registering a deed as public servant, and thereby committed an offence punishable under Section 358, I.P.C.'

3. An objection was raised on behalf of the accused challenging the jurisdiction of the Magistrate to take cognizance of the offence without a complaint in writing oi the public servant concerned as required by Section 195 (1), Cr.P.C. The Magistrate upheld the objection as regards the charge under Section 228, I.P.C., but overruled it with respect to Section 353, I.P.C

4. The main point canvassed at the Bar was whether it was permissible for the prosecution to split up the facts of the case in order to get round the bar of Section 195, Cr.P.C. Now the crux of the allegation in the present case was that the Sub-Registrar was obstructed in the discharge of his official duty by the accused offering insult to and committing assault on him. It was said that accused used filthy language and displayed an attitude of defiance to his authority by means of gestures. On these facts it would hardly be possible to separate the element of insult from that of so-called assault because the two are so interwoven in the episode that they become merged one with the other. It seems, therefore, clear that the Magistrate could only have proceeded to try the accused under Section 353 by disregarding the fact that the two offences fell in the same category and were of the same nature. In Bashir-ul-Haq v. State of West Bengal, AIR 1953 SC 293, the Supreme Court deprecated the practice of evading the provisions of Section 195, Cr.P.C., by resorting to devices and camouflages and said:

' The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section 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, upon the ground that such latter offence is a minor offence of the same character or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the 'category of sections mentioned in Section 195 Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it.'

5. The facts of the Supreme Court case were these: One Nurul Huda lodged information at the police station that Dbirendra Nath had beaten and throttled his mother to death and had taken her dead body for cremation. When the funeral pyre was in flames. Nurul Huda along with the Sub-Inspector of Police and some other persons arrived at the cremation ground and had the dead body taken out after getting the fire extinguished. The Sub-inspector did not find any marks of injury on the dead body and the post-mortem report also did not reveal any marks of violence. Dhirendra Nath filed a petition of complaintin the Court of a Magistrate, First Class, charging the accused with offences under Sections 297 and 500, I.P.C. An objection was raised on behalf of the accused that the allegations contained in the report disclosed an offence under Section 182 or Section 211, I.P.C, and, therefore, the same could not be taken cognizance of without a complaint in writing of the public servant concerned by virtue of Section 195, Cr.P.C.

In view of the importance of the question of law raised in that case, the matter was laid before a Full Bench of the Calcutta High Court which held that the conviction oi the accused under Section 297, I.P.C., was perfectly legal because there was nothing in Sections 195 to 399, Cr.P.C., which could in any way bar the prosecution of the accused under that section as it could not be said that it arose out of facts which would constitute an offence under Section 182 or 211, I.P-C. On the other hand, it arose from entirely different set of facts, namely, trespass by the accused in the burial-ground and the removal of the corpse from the lighted funeral pyre. In regard to the offence under Section 500, it was observed that the prosecution for defamation was based on the false information given to a public officer. That circumstance, however, was no bar for the prosecution of the accused under that section because it was a distinct and separate offence wholly unconnected with the offence under Section 297. The matter was taken to the Supreme Court and it affirmed tbe view of the Full Bench. lt is worthwhile to reproduce the observations of the Supreme Court. They said:

'The charge for the offence under Section 297, I.P.C., could in no circumstance as pointed out by the High Court, be described as tailing within the purview of Section 195, Cr.P.C. The act of trespass was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concern the conduct of the appellants during the post-report period. . As regards the charge under Section 500, Penal Code, it seerns fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of Section 195 from seeking redress for the offence committed against him. ... Under Section 198. Cr.P.C., a complaint in respect of an offence under Section 499, I. P. C., can only be initiated at the instance of the person defamed, in like manner as cognizance for an offence under Section 182 cannot be taken 'except at the complaint of the public servant concerned'

6. The matter was considered in OUT own High Court in Ram Harsh Tiwari v. Rex : AIR1950All465 , Malik, C.J., discussing the scope of Section 195, Cr.P.C. observed that where the facts stated in the complaint amount to an offence under Section 193, I.P.C., in the absence of a complaint by the Court under S. 195 (1) (b), it is not open to the complainantto say that he would Confine his case to the offence under Section 465, I.P.C., for which no complaint by the Court is needed, though the nature of the offence is the same.

7. The same principle was brought out forcefully by Happel, J., in re Chilukuri Antar-vedi Sarnm, AIR 1946 Mad 189. The learned Judge said that if the facts disclosed an offence under Section 193, I.P.C., parties could not be allowed to circumvent the law by filing a complaint under Section 467 I.P.C., and that it would be wrong to ignore the elements oi the offence which brought it under Section 467 in respect of which no special complaint was necessary. The same point of view had been expressed in two earlier Division Bench cases of the Madras High Court: In re Ravennappa Reddi, ILR 55 Mad 343 = (AIR 1932 Mad 253) and In re Appadurai Nainar, ILR 59 Mad 165 = (AIR 1936 Mad 89).

8. Again, In re Chiunayya Goundan, AIR 1948 Mad 474, Govinda Menon, J, after considering the case-law, stated:

'The principle deducible from these cases is that when a complaint is made to a Court, the facts should be considered as a whole and there should be no splitting up of the facts. Therefore, the Court is not entitled to disregard some of the facts and try an accused person for an offence which the remaining facts disclose. Considering the facts as a whole if they disclose an offence for which a special complaint is necessary under the provisions of Section .195, Cr.P.C., the Court cannot take cognizance of the case at all unless that special complaint has been filed.'

9. In State v. Kathi Unad, AIR 1955 Sau 10, the learned Judge relying on the Supreme Court case of Basir-ul-Haq : 1953CriLJ1232 , said that the very act of obstruction lay in the assault and the hurt to complainant and that the offence primarily committed was under Section 186, I.P.C., and to convict the accused for the offence under Sec 332, I.P.C., would be tantamount to holding them guilty under Section 185, I.P.C., and then convicting them for the offence under Section 332, T.P.C. They came to the conclusion that the prosecution could not circumvent the provisions of Section 195 by a dubious method. (See also Makaradhwai Sahu v. State. : AIR1954Ori175

10. I have been referred on behalf of the State to the case of Ganga Singh v State. : AIR1962All150 . In that case it was contended that the conviction of tbe accused under Section 218, I.P.C., was not legally sustamable because the crime committed by him was essentially an offence of fabricating false evidence for the purpose of being used in a judicial proceeding which was punishable under Section 193, I.P.C., and that the accused could only be prosecuted on a complaint filed by the Court concerned in accordance with Section 19', (1) (c), Cr.P.C. Broome, J., observed tbat the facts made out an offence punishable both under Section 218 and under Section 193, I.P.C' and added that 'whereas all the ingredients of an offency under Section 465 are included in Section 193, Section 218, I.P.C., contains certain im-portant ingredients which are not at all covered by Sec, 193 in the sense that Section 218 is not a minor offence of Section 193 but a completely different species of crime'. On this reasoning he upheld the couviction of the accused under Section 218, I.P.C.

11. With great respect, I am unable to accede to the proposition that where the ingredients of two offences, one falling under Section 218 and the other under Section 193, are common and overlap each other, it is open to the complainant to bypass, as it were, the provisions of Section 195 by choosing to prosecute the accused under Section 218, I.P.C., only. As was observed by the Supreme Court in Basir-ul-Haq : 1953CriLJ1232 , if in truth and substance the offence falls in the category of sections mentioned in Section 195, Cr.P.C., it is not open to the Court to convict an accused without complying with the provisions of that section.

12. For the reasons given above, I am of the opinion that the prosecution of the accused under Section 353, I.P.C., is not legally sustainable. I accordingly quash the proceedings pending against him under Section 353, I.P.C.

13. This revision is accordingly allowedand the proceedings against the accused under Section 353 are set aside.


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