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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • G. Kumar - for Applicants ; H.N. Seth
Judges
  • Hon'ble Mr. M.C. Desai
Acts
  • provisions contained in Section 17 of the Code.
  • provisions of Section 17 of the Code.
  • Clauses (b) and (c) of Section 195(1)
  • provisions of Sub-section (3). I,
  • provisions of Sub-section (3)
  • Section 195(1)(a) of the Code
  • Sections 188 and 447, I.P.C
  • Section 188, I.P.C,
  • Section 182, I.P.C
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • G. Kumar - for Applicants ; H.N. Seth
Judges
  • Hon'ble Mr. M.C. Desai
Acts
  • provisions contained in Section 17 of the Code.
  • provisions of Section 17 of the Code.
  • Clauses (b) and (c) of Section 195(1)
  • provisions of Sub-section (3). I,
  • provisions of Sub-section (3)
  • Section 195(1)(a) of the Code
  • Sections 188 and 447, I.P.C
  • Section 188, I.P.C,
  • Section 182, I.P.C
See more information ...
Smart Summary

Judgment Summary — Desai, J.

Factual and Procedural Background

Proceedings under Section 145 of the Code of Criminal Procedure were instituted between Niranjan Singh on the one side and the applicants (and others) on the other. The Sub-divisional Magistrate, under Section 145(6), held that Niranjan Singh was in possession and passed an order prohibiting the applicants and their companions from interfering with his possession. Despite that order, the applicants forcibly took possession of the land. Niranjan Singh protested but, after being threatened and at the urging of his witnesses, left the spot. He reported the incident and requested the Additional District Magistrate (ADM) to make a complaint. The ADM filed a complaint against the applicants under Sections 188 and 447 of the Indian Penal Code; the applicants were prosecuted and convicted under Section 188, IPC. The applicants sought revision of their conviction, which is the matter decided in this opinion.

Legal Issues Presented

  1. Whether the act of the applicants (forcibly taking possession despite an order under Section 145(6)) constituted an offence under Section 188, IPC — i.e., whether the infringement caused or tended to cause annoyance.
  2. Whether the Additional District Magistrate had the power to file the complaint under Section 195(1)(a) of the Code, given the question of to whom the Sub-divisional Magistrate (who passed the disobeyed order) was subordinate — specifically, whether subordination must be determined by the provisions of sub-section (3) of Section 195 or by Section 17 of the Code.

Arguments of the Parties

Applicants' (and their counsel Mr. G. Kumar's) Arguments

  • There was no evidence to prove that the act of the applicants caused annoyance; therefore, Section 188 was not made out.
  • The Additional District Magistrate had no power to file the complaint under Section 195(1)(a) because the public servant concerned was the Sub-divisional Magistrate; Mr. G. Kumar contended that the Sub-divisional Magistrate was subordinate not to the ADM or District Magistrate but to the Sessions Judge, relying on the provisions of sub-section (3) of Section 195 (which, he argued, determine subordination by reference to appeals between Courts).
  • He relied on precedents (including Arunachalam v. Ponnuswami and Re Badiuddin Sarfuddin) to support the contention that sub-section (3) applies to public servants who preside over Courts.

Respondent / Prosecution Position (as reflected in the opinion)

  • The offence under Section 188 is committed when an order lawfully promulgated is infringed and the infringement causes or tends to cause annoyance or injury; actual annoyance need not be proved if tendency to cause annoyance is shown.
  • Taking forcible possession in breach of the order under Section 145(6) had a tendency to annoy Niranjan Singh, and the evidence (reporting the occurrence and seeking the ADM's intervention) showed actual annoyance.
  • Regarding subordination, the proper test is the capacity in which the public servant acted and the statutory subordination under Section 17 of the Code; Sub-divisional Magistrates are subordinate to the District Magistrate, and an Additional District Magistrate has the powers of the District Magistrate — hence the ADM could file the complaint.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Arunachalam v. Ponnuswami, A.I.R. 1919 Mad. 610 Held (Madras view) that the provisions of sub-section (3) of Section 195 apply to public servants who preside over Courts (i.e., subordination determined by the appeals structure of Courts). The court (Desai, J.) explicitly dissented from this view and rejected the extension of sub-section (3) to determine the subordination of public servants.
Re Badiuddin Sarfuddin The opinion indicates this case was relied upon by counsel (Mr. G. Kumar) in support of the contention about sub-section (3); the provided text does not state the precise rule from this case. The opinion records that the case was relied upon by the applicants' counsel but does not elaborate the court's treatment of any specific principle from it.
Brijendra Nath v. Emperor Decision (by Iqbal Ahmad, J.) that where a District Judge acts as a public servant in making a complaint under the relevant clause (e.g., Section 182 IPC), the matter is to be treated as a complaint by a public servant and not as an appellate question under sub-section (3); no appeal lies against such an order in that context. The court cited this case as supportive of the view that complaints by public servants should be considered with reference to public-servant subordination (as under Section 17), and that sub-section (3) was not relied upon in that case.
Maini Missir v. King-Emperor, I.L.R. VI Pat. 39 Dawson Miller, C.J. emphasised the distinction between Clause (a) (complaints by public servants) and Clauses (b) and (c) (complaints by Courts), and observed that sub-section (3) seems to refer to cases in Clauses (b) and (c) and not to Clause (a). The court stated that this judgment "fully supports" the view that subordination of public servants who preside over Criminal Courts is to be ascertained by reference to Section 17 of the Code rather than by sub-section (3) of Section 195.
Chandra Kumar v. Ramesh Chandra Judge Agarwala followed the Patna case and dissented from the Bombay and Madras views; he refused to ascertain the subordination of a public servant who presides over a Court on the basis of sub-section (3), observing sub-section (3) deals with subordination of Courts regarding matters in sub-sections (b) and (c). The court cited this decision as further support for the view that sub-section (3) deals with Courts (Clauses (b) and (c)) and not with the subordination of public servants under Clause (a).

Court's Reasoning and Analysis

The court's analysis proceeded in two main strands: the application of Section 188, IPC to the facts, and the question whether the ADM was competent to file the complaint under Section 195(1)(a).

On Section 188, the court recalled the legal rule that an offence under Section 188 is committed when a lawfully promulgated order is infringed and such infringement causes or tends to cause annoyance or injury; actual annoyance need not be established if there is a tendency to cause annoyance. The court concluded that the applicants' act — taking forcible possession in spite of an order under Section 145(6) — had a tendency to annoy Niranjan Singh. The evidence also showed actual annoyance: Niranjan Singh made a report, moved the ADM to file a complaint, and was induced by his witnesses to leave the spot to avoid serious consequences. On these facts, the contention that there was no evidence of annoyance was rejected.

On the competence of the ADM to file the complaint, the court considered Section 195(1)(a), which provides that no Court shall take cognisance of an offence punishable under Section 188 except on the complaint of the public servant concerned, or of some other public servant to whom he is subordinate. The public servant concerned was the Sub-divisional Magistrate who passed the Section 145(6) order. The key question was how to ascertain to whom that Sub-divisional Magistrate was subordinate.

The court explained that the capacity in which the order was passed is relevant; one must consider the capacity (e.g., acting as a Sub-divisional Magistrate) when determining subordination. The court rejected the argument that sub-section (3) of Section 195 (which deals with subordination of Courts by reference to appeals) should determine the subordination of public servants. The court's reasoning was: sub-section (3) relates to the subordination of Courts (for the purposes of Clauses (b) and (c) of Section 195) and not to the subordination of public servants mentioned in Clause (a). Because sub-section (3) deals exclusively with Courts, it is not appropriate to apply it when deciding to which public servant a public servant (such as a Sub-divisional Magistrate) is subordinate.

Instead, the court held that subordination of public servants must be ascertained by reference to the statutory provisions governing public-servant relationships — specifically Section 17 of the Code. Section 17 makes a Sub-divisional Magistrate subordinate to the District Magistrate. The Additional District Magistrate is vested with the powers of the District Magistrate; therefore, an ADM is a public servant to whom a Sub-divisional Magistrate is subordinate in that capacity. The court also noted supporting authority (e.g., Brijendra Nath and Maini Missir) that aligns with this approach. Consequently, the court concluded there was no lack of power in the ADM to file the complaint.

The court further addressed prior conflicting authorities (the Madras and Bombay cases) which held that sub-section (3) applies to public servants presiding over Courts; the court expressly dissented from that view and explained why it was not justified.

Holding and Implications

Holding: THE CONVICTIONS AND SENTENCES OF THE APPLICANTS ARE MAINTAINED; THE REVISION APPLICATION IS DISMISSED.

Implications:

  • Direct effect on the parties: The applicants' convictions under Section 188, IPC, and the sentences imposed on them are upheld; the application for revision is dismissed. The court noted the applicants acted in a high-handed manner and therefore deserved no leniency.
  • Legal implication from the court's reasoning: The court applied the principle that subordination for the purposes of a complaint under Section 195(1)(a) is to be determined by reference to the capacity in which the public servant acted and the statutory subordination of public servants (here, Section 17 of the Code), and that sub-section (3) of Section 195 pertains to the subordination of Courts (Clauses (b) and (c)) rather than to the subordination of public servants under Clause (a). The opinion records and relies upon prior decisions consonant with that approach.

Application dismissed.

Show full summary ...

    Jaswant v. State

    Desai, J.:— In proceedings under Sec. 145 of the Code of Criminal Procedure between Niranjan Singh on one side and the applicants and others on the other side, it was held by the court under Section 145(6) that Niranjan Singh was in possession and the court passed an order prohibiting the applicants and their companions from interfering with his possession. In spite of this order, the applicants forcibly took possession of the land. The order was passed by a Sub-divisional Magistrate. When the applicants took forcible possession of the land Niranjan Singh protested, but he was threatened and his witnesses induced him to leave the spot. Niranjan Singh then approached the Additional District Magistrate and asked him to make a complaint against the applicants under Sections 188 and 447, I.P.C The Additional District Magistrate filed a complaint against the applicants under those sections and they were prosecuted and have been convicted under Section 188, I.P.C They now come up in revision against their conviction.

    2. It was contended that there is no evidence to prove that the act done by the applicants caused annoyance. An offence under Section 188 is committed when an order lawfully promulgated is infringed and the infringement causes, or tends to cause, annoyance or injury. It is not necessary that annoyance is actually caused; it is sufficient if the infringement has a tendency to cause annoyance. It cannot be doubted that in this case the act done by the applicants, i.e of taking forcible possession in spite of an order under Section 145(6) passed against them, had a tendency to annoy Niranjan Singh.

    3. The evidence shows that it did cause annoyance to him; he made a report of the occurrence and also moved the Additional District Magistrate to file a complaint against the applicants. If he had not been annoyed by their act, he Would not have taken these steps. It appears that he was annoyed even at the moment when the applicants were taking forcible possession; it was on account of his annoyance that he was induced by his witnesses to leave the spot so that something serious might not happen. There is no substance in this contention.

    4. The next and main contention is that the Additional District Magistrate had no power to file the complaint. Section 195(1)(a) of the Code lays down that no Court shall take cognisance of an offence punishable under Section 188, I.P.C, except on the complaint of the public servant concerned, or of some other public servant to whom he is subordinate. The public servant concerned in the instant case was the Sub-divisional Magistrate who had passed the order under Section 145(6) that was disobeyed by the applicants. If he was subordinate to the Additional District Magistrate, the trial Court rightly took cognisance of the offence on the complaint of the Additional District Magistrate. It was contended by Mr. G. Kumar that the Sub-divisional Magistrate was subordinate, not to the Additional District Magistrate, but to the Sessions Judge; he relied upon the, provisions of Sub-section (3) which are to the effect that for the purposes of Section 195 a Court will be deemed to be subordinate to the Court to which appeals ordinarily lie from the appelable decrees or sentences of the former Court.

    5. It has been rightly pointed out in the past that Section 195 makes a distinction between complaints to be filed by public servants and complaints to be filed by Courts. Sub-section (a) deals with complaints to be filed by public servants, while sub-sections (c) and (b) deal with complaints filed by Courts. This distinction is preserved in Section 476 of the Code, which provides for the proceedings to be taken by Courts prior to the filing of complaints in respect of offences mentioned in sub-sections (b) and (c) and for appeals from their orders. That section does not at all deal with complaints to be filed by public servants. In the Code no procedure is laid down for the filing of a complaint by a public servant or for any appeal from an order of a public servant filing or refusing to file a complaint. A Magistrate or a Munsif is a public servant, but when he files a complaint of an offence, say of Section 188, I.P.C, he does so as a public servant and not as a Magistrate or Munsif. It is true that when one has to ascertain to which other public servant he is subordinate, one must consider the capacity in which he acted in passing the order disobeyed. If he passed the order as a Magistrate, he would be subordinate to that public servant to whom he would be subordinate as a Magistrate. If, on the other hand he passed the order as a Munsif, he would be subordinate to that public servant to whom he would be subordinate as a Munsif. But in ascertaining to whom he would be subordinate, one is not required to consider the provisions of Sub-section (3) at all. Those provisions clearly deal with the subordination of Courts and not with the subordination of public servants. They do not refer to public servants at all; they, deal exclusively with Courts and their subordination. Even in the case of a public servant who presides over a Court, the question to which other public servant he is subordinate has to be decided without reference to the provisions of Sub-section (3). I, therefore, do not accept the contention of Mr. G. Kumar that the question to whom the Sub-divisional Magistrate was subordinate should be decided on the basis of the provisions of Sub-section (3). Really that question has to be decided on the basis of the provisions contained in Section 17 of the Code. According to that section, a Sub-divisional Magistrate is subordinate to the District Magistrate. The public servant whose order was disobeyed has passed it as a Sub-divisional Magistrate, and in that capacity he was subordinate to the District Magistrate. An Additional District Magistrate has got the powers of the District Magistrate. Even otherwise, a Sub-divisional Magistrate, as a public servant, is subordinate also to the Additional District Magistrate. Consequently, the complaint was rightly filed by the Additional District Magistrate.

    6. Mr. G. Kumar relied upon Arunachalam v. Ponnuswami A.I.R 1919 Mad. 610. and in Re Badiuddin Sarfuddin.2 In the Madras case Napier, J., with whom Sadasiva Aiyar, J. concurred, took the view that the provisions of Sub-section (3) apply also to those public servants who preside over Courts. The Bombay case followed the Madras case and held that a public servant who presides over a Court is sub-ordinate to that other public servant presiding over another Court to which appeals would ordinarily lie from his Court. With respect to the learned Judges, I dissent from the view taken by them. There is no justification for the view that the words “public servant” in Sub-section (a) mean a “Court”, when he presides over a Court. Sub-sections (b) and (c) both refer to Courts to which other Courts would be subordinate and it is obvious that the provisions of Sub-section (3) deal with the subordination of Courts as distinct from the subordination of public servants. All public servants do not preside over Courts and there are no appeals from orders passed by some public servants, especially those who do not preside over Courts. Sub-section (3) is meant to be exhaustive and to deal with the subordination of all authorities mentioned in the section. It follows that it does not deal with the subordination of public servants, because it does not deal with the subordination of all public servants.

    7. There is no direct authority of this Court dealing with the question under consideration. But some support to the view taken by me can be had from Brijendra Nath v. Emperor,3 in which Iqbal Ahmad, J. decided that no appeal lies against an order of a District Judge, passed as a public servant, complaining under Sub-section (a) of an offence under Section 182, I.P.C He also observed that is a public servant to whom the District Judge was subordinate, he himself could quash the complaint in exercise of the power conferred by Sub-section (5). It is clear from the judgment that though the complaint in that case was made by a District Judge, the learned Judge treated it as made by a public servant and did not consider himself to be superior to him on the ground that an appeal from the District Judge would lie to him. He did not rely at all on the provisions of Sub-section (3). The judgment of Dawson Miller, C.J (with whom Foster, J. agreed) in Maini Missir v. King-Emperor I.L.R VI Pat. 39. fully supports the view that the subordination of public servants who preside over Criminal Courts is to be ascertained, not with reference to the provisions of Sub-section (3), but with reference to the provisions of Section 17 of the Code. At page 44 he emphasised the distinction between the cases covered by Sub-section (a) and those covered by Sub-sections (b) and (c). At page 47 he observed that Sub-section (3).

    seems manifestly to refer to the cases mentioned in Clauses (b) and (c) of Section 195(1) where the complaint must be made by the Court and not to Clause (a) where the complaint is to be made by a public servant,

    and that:—

    the antithesis between ‘public servant’ in Clause (a) and ‘Court’ in Clauses (b) and (c) is marked, the Magistrate acting under the former clause is acting, not as a Court, but as a public servant.

    8. The patna case was followed, and the Bombay and Madras cases were dissented from, by Agarwala, J. in Chandra Kumar v. Ramesh Chandra.5 He also refused to ascertain the subordination of a public servant who presides over a Court on the basis of the provisions of Sub-section (3), and observed that Sub-section (3) deals with subordination of Courts in respect of matters dealt with in Sub-section (b) and (c).

    9. There was no defect in the complaint filed by the Additional District Magistrate.

    10. The convictions and sentences of the applicants are maintained; they, having acted in a high-handed manner, deserve no leniency at all. The application is dismissed.

    11. Application dismissed.

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    Comments

    Jaswant v. State
    (Jul 31, 1951)