( 1 ) THIS petition under Sec. 482 of the Code of Criminal Procedure, 1973, is directed against the order of the Judicial Magistrate First Class, ramdurg, in C. C. No. 801 of 1976, dated 30. 12. 1976, issuing process against petitioners-accused for the offences under Secs. 193 and 455 of the I. P. Code.

( 2 ) THE tacts giving rise to the present petition are these: A private complaint was filed by one Ningangouda, respondent, against rajanikant J. Kakade, Head Constable of Ramdurg, Police. Station and these three petitioners-accused alleging that Accused 4 was doing police and revenue patilki service of Mudakavi village and, as such, had some rivalry with the complainant Ningangouda, who was the revenue watandar patel. Accordingly, A-4 being friendly to Rajanikant j. Kakade, the Head-Constable, both of them conspired to disrepute the complainant so that he would be rendered unfit for the patilki service. With that object in view, the three petitioners and Rajanikant J. Kakade, the Head-Constable, concocted a false police complaint by one Bailappa, alleging that some gold ornaments and cash of Rs. 500 were stolen from his house and that the complainant Ningangouda was harbouring basappa, the accused, of that theft case. Accordingly, on 3. 5. 1975, the three petitioners (A-2 to A-4) and Rajanikant J. Kakade (A-1) went to the house of the complainant Ningangouda and woke him up. He was arrested and handcuffed and brought to the Mudakavi Chawadi where false panchanamas were written. It was mentioned that the complainant produced the gold ornaments, as well as some cash out of the properties stolen. These false documents were prepared at the instance of A-1 to A-4 and subsequently, A-1 being the Head-Constable, submitted the charge sheet and C. C. 170 of 1975 was instituted in the court of the Magistrate. The trial in that case took place and ultimately it was found that no offence was made out and the accused were acquitted. After the acquittal of the accused in that case, the complainant ningangouda considering that the previous case set up against basappa was false and frivolous and the complainant Ningangouda was made an instrument to facilitate the investigation in that case with the avowed object of disreputing him, filed the present complaint before the magistrate saying that the four accused committed the offences of conspiracy under sec. 120-B read with Secs. 196, 193, 455 and 167 of the I. P. Code. The learned Magistrate considered the complaint and ultimately thought that prima facie the three accused A-2 to A-4 could be summoned for the offences under Sees 193 and 455 of the I. P. Code. However, in the opinion of the learned Magistrate, A-1 namely, Rajanikant J. Kakada, the Head-Constable, could not be proceeded against, as he was performing his public duty and hence he could not be summoned for any of the offences alleged against him. As such A-l was discharged. Being dissatisfied with the order of the learned Magistrate, the present petition is filed by A-2 to A-4:

( 3 ) SRI B. V. Deshpande, the learned Counsel for the petitioners, submitted that the learned Magistrate who issued the process against the three accusd, committed error on two points- (1) under Sec. 195 of the Code of Criminal Procedure, in as much as the offence under section 455 was so intermingled with the offence under Section 193 of the I. P. Code that no cognizance could be taken unless the prior complaint in writing by the Court was filed and, (2) under Sec. 170 of the karnataka Police Act, A-2 to A-4 having accompanied the Head-Constable A-1, in furtherance of the performance of his public duty, were the other persons accompanying the police officer, and the entire offence being committed in the same transaction, the prosecution could not be entertained except with the previous sanction of the Government. While elaborating his argument under the first point referable to sec. 195 of the Code of Criminal Procedure, the learned Counsel relied upon the

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