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Case Number

Cr. Rev. No. 355 of 1965 Against the Order Dated 3-2-65 passed by Sri M. Wahazauddin, Sessions Judge, Orai, in Cr. Rev. No. 2 of 1965, confirming the order of the Judicial Officer and Magistrate dated 26-12-64 in Cr. Case No. 373 of 1964

Attorney(S)

R. Dwivedi
R.K. Shukla
Addl. Govt. Advocate

Judges

D.P Uniyal, J.

Acts

Section 218 and under Section 193, I.P.C."
Section of the Indian Penal Code,
Section 182 or Section 211, I.P.C.
provisions of Section 195, Cr.P.C.,
Section 193, Section 218, I.P.C.,
Sections 297 and 500, I.P.C.
Section 195 to 199, Cr.P.C,
Section 182 or 211, I.P.C.
SECTION 500 PENAL CODE
Section 195(1)(c), Cr.P.C.
Section 195 (1), Cr.P.C.
Section 195, Cr.P.C.
Section 198, Cr.P.C.,
Section 297, I.P.C.,
Section 499, I.P.C.,
Section 193, I.P.C.,
Section 465, I.P.C.,
Section 467, I.P.C.,
Section 186, I.P.C.,
Section 332, I.P.C.,
Section 185, I.P.C.,
Section 218, I.P.C.,
Section 353, I.P.C.,
Section 228, I.P.C.
Section 195(1)(b),

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Smart Summary

Summary of the Opinion

Factual and Procedural Background

This is an application to revise an order of the Sessions Judge which had upheld the jurisdiction of the Magistrate to proceed with the trial of the accused under Section 353, Indian Penal Code (I.P.C.). On an information lodged with the police, a case under Sections 228 and 353, I.P.C., was sent to the Magistrate. The Magistrate framed two charges: one under Section 228 (offering insult and causing interruption to a Sub-Registrar while he was engaged in a stage of judicial proceeding) and another under Section 353 (assaulting a Sub-Registrar, a public servant, with intent to deter him from discharging his duty). An objection was raised on behalf of the accused challenging the Magistrate's jurisdiction to take cognizance without a complaint in writing by the public servant as required by Section 195(1), Cr.P.C. The Magistrate upheld the objection regarding the Section 228 charge but overruled it with respect to the Section 353 charge. The accused sought revision of the Sessions Judge's order upholding the Magistrate's jurisdiction to try the Section 353 charge.

Legal Issues Presented

Whether the Magistrate had jurisdiction to take cognizance and try the accused for the offence under Section 353, I.P.C., without a complaint in writing by the public servant as required by Section 195(1), Cr.P.C.
Whether the prosecution may permissibly "split up" or separate elements of the same episode (insult and assault) to avoid the bar created by Section 195, Cr.P.C., i.e., whether facts that are interwoven and of the same nature may be dissected so as to prosecute on a charge not requiring a special complaint when in truth and substance the facts disclose an offence covered by Section 195.

Arguments of the Parties

Accused's Arguments

An objection was raised on behalf of the accused challenging the Magistrate's jurisdiction to take cognizance of the offences without a complaint in writing by the public servant concerned, as required by Section 195(1), Cr.P.C.
The accused contended (as reflected in the objection) that the facts of the episode — offering insult and committing assault upon the Sub-Registrar during the performance of his official duty — were so interwoven that they could not be separated into distinct offences to evade the requirements of Section 195.

State's Arguments

The opinion records that on behalf of the State reference was made to the case of Ganga Singh v. State, implying reliance on authority supporting prosecution under a provision which the State contended could legitimately be applied despite overlap with offences falling within the scope of Section 195. The precise submissions of the State are not elaborated beyond this citation in the provided text.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bashir-ul-Haq v. State of West Bengal (Supreme Court)	The Court deprecated evasion of Section 195, Cr.P.C., by devices; the test is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or public servant is required; prosecution cannot evade Section 195 by charging an offence to which it does not apply and then convicting of one to which it does.	The present court relied on this principle to hold that the offences of insult and assault were so interwoven that prosecution could not split facts to avoid Section 195; this precedent provided the main test applied by the court.
Calcutta Full Bench decision (affirmed by Supreme Court) discussed in Bashir-ul-Haq (facts concerning Sections 297 and 500, I.P.C.)	The Full Bench held that where allegations disclose two distinct offences arising from distinct facts (e.g., trespass and defamation), Section 195 does not bar prosecution for the offence not within its purview; distinct offences based on different facts can be separately prosecuted.	The opinion reproduced the Full Bench/Supreme Court observations to explain the boundary of Section 195: where offences arise from distinct sets of facts they may not be barred by Section 195; the court contrasted that situation with the present case where the facts were interwoven.
Ram Harsh Tiwari v. Rex (High Court)	Where facts stated in a complaint amount to an offence under Section 193, I.P.C., the complainant cannot confine the case to an offence (Section 465) of the same nature to avoid the requirement of a complaint under Section 195(1)(b).	Cited to support the principle that one cannot bypass Section 195 by selecting a lesser or different label for an offence where the facts disclose an offence requiring a special complaint.
In re Chilukuri Antarvedi Sarma (AIR 1946 Mad 489)	If facts disclose an offence under Section 193, I.P.C., parties cannot circumvent the law by filing a complaint under another section (Section 467) to avoid requirements applicable to the former.	Used to reinforce the rule against circumvention of complaint requirements by reframing the offence under a different section.
In re Ravennappa Reddi (ILR 55 Mad 343; AIR 1932 Mad 253)	This earlier Madras Division Bench authority expressed the same point of view that facts should be considered as a whole and not split to avoid legal requirements.	Presented as supporting precedent for the proposition that courts should consider facts holistically and not permit splitting to evade Section 195.
In re Appadurai Nainar (ILR 59 Mad 165; AIR 1936 Mad 89)	Another Madras Division Bench case expressing similar principle about not splitting facts in complaints.	Cited as further authority consistent with the view that facts must be considered as a whole when determining whether Section 195 applies.
In re Chinnayya Goundan (AIR 1948 Mad 474)	Stated principle that when a complaint is made the facts should be considered as a whole and the Court cannot disregard some facts and try an accused for an offence which the remaining facts disclose; if facts disclose an offence requiring a special complaint under Section 195, the Court cannot take cognizance unless that complaint has been filed.	The opinion relied on this articulation to conclude that the prosecution could not split the episode and that Section 195's requirements must be respected if the combined facts disclose an offence within Section 195.
State v. Kathi Unad (AIR 1955 Sau 10)	Relied on Bashir-ul-Haq; held that the act of obstruction lay in assault and the primary offence fell under a section covered by Section 195, so prosecution could not circumvent Section 195 by charging a different offence.	Cited to show courts have refused to allow prosecution to circumvent Section 195 by artful pleading where the essential offence falls within the categories covered by Section 195.
Makaradhwaj Sahu v. State	This case is cited in the opinion with no substantive detail provided in the text.	The opinion cites it as an additional authority in support of the principle against circumventing Section 195; specific reasoning from the case is not detailed in the provided text.
Ganga Singh v. State	In that case it was contended that the conviction under Section 218 was unsustainable because facts also disclosed an offence under Section 193 which requires a complaint under Section 195(1)(c); the judge observed that offences under Section 218 and Section 193 could both be made out and that Section 218 was a different species of crime not merely a minor offence of Section 193.	The State referred to this case in support of its position; the opinion considered the decision but declined to accept the proposition that overlap of ingredients permits bypassing Section 195 when in truth the offence falls within the sections mentioned in Section 195.

Court's Reasoning and Analysis

The court proceeded by examining whether the facts in this case — the accused's use of filthy language, gestures of defiance and the assault on the Sub-Registrar while he was registering a document — could legitimately be separated into distinct offences so as to avoid the requirement of a complaint under Section 195, Cr.P.C.

The court observed that the elements of insult and assault in the present episode were so interwoven and merged with one another that it would be artificial to separate them. 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.

Applying the test laid down in Bashir-ul-Haq v. State of West Bengal, the court asked whether, in truth and substance, the facts disclose primarily an offence for which a complaint under Section 195 is required. The court reiterated the principle that the provisions of Section 195 cannot be evaded by charging a person with an offence to which that section does not apply when the core facts fall within the category of offences mentioned in Section 195.

The court reviewed relevant precedent (including decisions of various High Courts and the Supreme Court) emphasizing the consistent principle that facts must be considered as a whole and that parties or prosecutors cannot split facts or relabel offences to circumvent the statutory requirement of a special complaint where the combined facts disclose an offence within Section 195.

The opinion considered the State's reliance on Ganga Singh v. State but rejected the broader proposition that overlap of ingredients allows a complainant to bypass Section 195 by selecting prosecution under a different section when in truth and substance the offence falls within the scope of Section 195.

On this basis the court concluded that prosecution under Section 353 was not legally sustainable because the episode, viewed as a whole, disclosed an offence the investigation and prosecution of which were barred by the requirement of Section 195 unless the requisite complaint by the public servant or the Court had been made.

Holding and Implications

Holding: The revision is allowed; the proceedings against the accused under Section 353, I.P.C., are quashed and set aside.

Implications:

The direct effect is that the trial and proceedings pending against the accused under Section 353, I.P.C., have been quashed and the revision succeeds.
The opinion applies and reiterates established principles limiting the ability of prosecutors to split or relabel facts to avoid the special complaint requirements of Section 195, Cr.P.C. The opinion does not state that it is establishing a new legal precedent beyond applying and following existing authority.

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Radhey Shyam Gupta v. State Of U.P.

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 353, IPC.

2. On an information lodged with the police a case under Sees. 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 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 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 , 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 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 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 complaint in 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 and 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 of the accused under Section 297, I.P.C., was perfectly legal because there was nothing in Section 195 to 199, 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 the view of the Full Bench. It 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 falling 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 seems 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 our own High Court in Ram Harsh Tiwari v. Rex , 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 Section 195(1)(b), it is not open to the complainant to 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 Antarvedi Sarma AIR 1946 Mad 489. 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 of 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 Chinnayya 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 accused1 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 , 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 Section 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, I.P.C. They came to the conclusion that the prosecution could not circumvent the provisions of section 195 by a dubious method. See also Makaradhwaj Sahu v. State .

10. I have been referred on behalf of the State to the case of Ganga Singh v. State . In that case it was contended that the conviction of the accused under Section 218, I.P.C., was not legally sustainable 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 195(1)(c), Cr.P.C. Broome, J., observed that "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 offence under Section 465 are included in Section 193, Section 218, I.P.C., contains certain important ingredients which are not at all covered by Section 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 conviction 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 , 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 allowed and the proceedings against the accused under Section 353 are set aside.

Radhey Shyam Gupta v. State Of U.P.

Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Accused's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Radhey Shyam Gupta v. State Of U.P.

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