1. This is a petition by A-1 to revise the order of the Stationary II Class Sub-Magistrate, Amalapuram, passed in C.C No. 686 of 1956 on his file by which the learned Magistrate directed that the offence under Section 188 I.P.C, be dropped and the trial of the case with regard to the other offences alleged in the complaint, viz. offences punishable under Sections 447, 506, 323, and 379 I.P.C, be proceeded with.
2. The facts giving rise to this revision petition are set out in the complaint filed by the respondent and are as follows:
The respondent and the petitioner own adjoining fields. A palmyra ‘Kattava’ dividing the two fields belongs to the respondent, and he and his family members had been exercising full rights of ownership and possession of the said ‘Kattava’. While so, disputes arose between the parties and the petitioner and his supporters obstructed the respondent's men from cutting the leaves of the palmyra ‘Kattava’. The respondent therefore filed a petition under Section 145 Cr. P. C, before the Additional I Class Magistrate, Rajahmundry, and in M.C No. 16 of 1955, the said Magistrate passed an order on 28-3-1956 under Section 145(b) Cr. P.C declaring the respondent's possession of the ‘Kattava’ and forbidding all disturbance of such possession until evicted therefrom in due course of law.
3. Accordingly the ‘Kattava’ continued to be in the possession of the respondent. On 6-6-1956, while the servants of the respondent were cutting leaves from the trees in the ‘Kattava’, the petitioner obstructed the cutting. On coming to know of this, the respondent went to the spot and directed Lis men to cut the palmyra leaves. While the leaves were being cut, the petitioner trespassed into the ‘Kattava’ and intimidated the men who were cutting the leaves. The men got afraid and climbed down the trees. The petitioner and two others then removed the cut leaves as also the ladders and knives belonging to the respondent's men. When the respondent protested against the high-handed action of the petitioner, the latter pushed him down and caused hurt to him.
4. It was further alleged in the complaint that the petitioner had thus disobeyed the order made under Section 145 Cr. P. C., and committed offences punishable under Sections 447, 506, 223, 379 and 188 I.P.C
5. The complaint was taken on file by the Stationary II Class Sub Magistrate of Amalapuram as C.C No. 686 of 1956 and the complainant was examined in chief. Then there was a change of Magistrates. Before the new Magistrate, the petitioner (accused No. 1) filed a petition on 24-8-56 questioning the jurisdiction of the Magistrate to proceed with the case inasmuch as one of the offences alleged in the complaint viz., the offence under Section 188 Indian Penal Code could not be taken cognizance of by the court except on the complaint in writing of the Magistrate who had passed the order under Section 145 Cr. P.C, or some other public servant to whom he is subordinate as enjoined by Section 195 Cr. P.C and since the other offences of trespass, intimidation, hurt and theft were alleged to have been committed in disobedience of the order passed under Section 145 Cr. P.C even those offences could not be taken cognizance of without a valid complaint as required by Section 195 Cr. P.C and as admittedly no such complaint had been filed, the case should be dismissed ‘in toto’.
6. On that petition the learned Magistrate passed the following order:
“I think the only course open is to proceed with the trial of the case for the offences under Sections 447, 506, 323 and 379 I.P.C, eliminating Section 188 I.P.C, and I will not be committing an irregularity if I follow this course as the offences complained of are distinct……. The trial of the case will be proceeded with only for the offences under Sections 447, 506, 323 and 379 I.P.C”
7. It is that order which is challenged in this revision.
8. I am of opinion that the Magistrate was right in dropping Section 188 and deciding to proceed with the case with regard to offences under Sections 506, 323 and 379 I.P.C, but he was in error in holding that the offence of criminal trespass punishable under 447 could, in the circumstances of the case be tried by him, because the act of trespass itself constituted disobedience of the order under Section 145 Cr. P.C, an offence falling under Section 188 I.P.C, which cannot be taken cognizance of except on a complaint of the public servant concerned or his superior.
9. A plethora of case-law has grown round Section 195 Cr. P.C, but it is not necessary to refer to it since there has been an authoritative interpretation of the section by the Supreme Court in Basir-ul-Haq v. State of West Benga . A.I.R 1953 S.C 293.. In the course of his judgment, Mahajan, J. (as he then was), enunciated the following guiding principles:
“(1) Section 195 Cr. P.C provides ‘inter alia’ (that no court shall take cognizance of an offence under Secs. 172 to 188 I.P.C except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned, no prosecution for the offences specified in Section 195 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the Magistrate is debarred from taking cognizance in respect of those offences as well.
(2) 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 Sections 195 to 199 Cr. P.C Those Sections deal with the requisites for the prosecution of certain specified offences and the provisions of those sections must be limited to prosecutions for offences actually indicated
(3) Though Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices and camouflages. 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.”
10. Applying the aforesaid principles to the facts of the present case, it will be observed that the offences falling under Sections 506, 323 and 379 Indian Penal Code, are distinct offences and the ingredients of the said offences are not the same as those of an offence under Section 188 Indian Penal Code. Here the allegation is that, after having trespassed on the land in violation of the Court's order, the accused had committed certain other offences for which no complaint as envisaged by Section 195 Cr. P.C is necessary. There is thus no statutory inhibition with regard to the trial of those offences. As pointed out already, the offence of criminal trespass stands on a different footing and taking cognizance of that offence would amount to an evasion of the provisions of Section 195 Cr. P.C because in truth and substance the act of trespass was in itself an act of disobedience of the order of the Court under Section 145 Cr. P.C
11. Therefore, the Court below will proceed with the trial of the case in respect of offences under Sections 506 (criminal intimidation), 323 (simple hurt) and 379 (theft), but not for the offence under Section 457 I.P.C (criminal trespass). With this modification, the revision is dismissed.
K.S.R
12. Revision dismissed.