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1955 Supreme(AP) 107
Andhra Pradesh High Court
Md.Ismail - Appellant
Versus
State - Respondent
Decided On : 04-15-55
The provisions of section 195, Criminal Procedure Code, should be strictly confined to the offences enumerated therein and should not be extended to offences beyond those mentioned therein.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 195 (1) (A) - OFFENCE UNDER SECTION 353, INDIAN PENAL CODE - WHETHER COMPLAINT OF PUBLIC SERVANT NECESSARY - TEST.
Fact of the Case:
The petitioner was convicted under section 353, Indian Penal Code for assaulting and dragging village officers who were engaged in removing unauthorized huts on poramboke lands. The petitioner contended that the trial Magistrate was not competent to take cognizance of the case without a complaint by the public servant concerned in view of section 195 (1) (a) of the Criminal Procedure Code as the facts disclosed also an offence punishable under section 186, Indian Penal Code.
Finding of the Court:
The court held that the absence of a complaint of the public servant concerned did not in any way vitiate the proceedings in the lower court and it is impossible to say that the conviction of the petitioner is without jurisdiction.
Issues: Whether a complaint of the public servant concerned is necessary for taking cognizance of an offence under section 353, Indian Penal Code when the facts also disclose an offence punishable under section 186, Indian Penal Code.
Ratio Decidendi: The court held that the provisions of section 195, Criminal Procedure Code, should be strictly confined to the offences enumerated therein, and if Courts add to them, that would be unduly enlarging the scope of that section and in effect would be legislating in respect thereof. The test is whether the facts disclose primarily and essentially an offence requiring a complaint of the Court or of the public servant as the case may be and not whether the ingredients of an offence coming within the ambit of section 195, Criminal Procedure Code are also present in the offence charged.
Final Decision: The court dismissed the revision petition but reduced the sentence to the period already undergone and imposed a fine of Rs. 200 with a default imprisonment of six weeks.
( 2 ) THE short facts of the case are these : A number of unauthorised huts were put up on poramboke lands in Nellore town. The Sub-Collector, Gudur, ordered the eviction of the encroachers and directed the Tahsildar of Nellore to carry out the orders. After the requisite notices were served on the encroachers, the Tahsildar deputed P. W. 1 to carry out the orders of eviction. On the 17th of June, 11954, at about 8-30 A. M. , P. W. i, accompanied by the village officers, three village servants p. Ws. 3 to 5, and three police officers, went to the spot. Under his directions p. Ws. 3 to 5 were pulling down the roofs of the huts. At that stage the appellant, who had no manner of connection with encroachments, turned up and objected to the demolition of the huts. When this did not have any effect, he assaulted and dragged P. Ws. 3 to 5 to the road, one after another, who were engaged in removing the huts. P. W. 1 gave a complaint at about 5-30 P. M. to P. W. 7, the Circle inspector. A charge sheet was filed before the Stationary Sub-Magistrate, Nellore, against the petitioner under section 353, Indian Penal Code. The Petitioner denied having committed any offence.
( 3 ) THE Stationary Sub-Magistrate found the accused guilty under section 353, indian Penal Code. He submitted the proceedings to the District Magistrate under section 349, Criminal Procedure Code, as he thought that action under section 106, Criminal Procedure Code, was necessary. The District Magistrate passed the order mentioned above. This was confirmed in appeal by the Sessions judge, Nellore.
( 4 ) IN support of this revision case, the main contention of Mr. Lakshmanarao, learned counsel for the petitioner, is that the trial Magistrate was not competent to take cognizance of the case without a complaint by the public servant concerned in view of section 195 (1) (a) of the Criminal Procedure Code as the facts disclosed also an offence punishable under section 186, Indian Penal Code. To substantiate this, he called my attention to a number of decided cases. Reliance is mainly placed on the recent pronouncement of the Supreme Court in basir-ul-Huq v. State of West Bengal. (1953) i M. L. J. 775 : (1953) S. C. J. 405 in that case the accused was placed on trial for offences under sections 297 and 500, Indian Penal Code. A point was taken that the Court could not take cognizance of the case except on a complaint by a proper authority under the provisions of section 195, Criminal Procedure Code, on the ground that the offence said to have been committed by the accused was only one under section 182 or 211, Indian Penal Code. Though this objection prevailed with the trial Court, it was not. accepted by the High Court of Calcutta.
( 5 ) ON appeal from the judgment of the High Court, the Supreme Court ruled that since the allegations made in the false report; which was the subject-matter of the charge, disclosed two distinct offences, the person concerned was not debarred by section 195, Criminal Procedure Code, from seeking redress for the offence which was not hit by section 195, Criminal Procedure Code. Their Lordships referred with approval to the observations of Mukherjea, acting Chief Justice in Satish Chakravarthi v. Ramdayal De, (1920) I. L. R. 48 Cal. 388. (S. C. ). in the following terms :"where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction ; because to hold otherwise would amount to legislating and adding very materially to the provisions of sec
