ORDER :-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 Sec 353, I.P.C.

2. On an information lodged with the police a case under Secs. 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 Sec. 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 Sec. 353, 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 of the public servant concerned as required by Sec. 195(1), Cr. P.C. The Magistrate upheld the objection as regards the charge under Sec. 228, I.P.C., but overruled it with respect to Sec. 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 Sec. 1.95, 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 Sec. 353 by disregarding the fact that the two offences fell in the same category and were of the same nature, in Bashir-m-Haq v. State of West Bengal, AIR 1953 SC 293, the Supreme Court deprecated the practice of evading the provisions of Sec. 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 punishably under some other section of the Indian Penal Code, though in truth and substance the offence falls in the "category of sections mentioned in Sec. 195, Cr. P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Sec. 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 Dhirendra 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 takers 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. Dhirend

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