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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • K.L Shrivastava, J.
Acts
  • Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860),
  • Section 195(1)(a)(i) of the Criminal P.C. 1973 (for short 'the Code')
  • Section 186 ibid conviction under Section 353, I.P.C.
  • SECTION 6 PROBATION OF OFFENDERS ACT 1958
  • provision of Sections 360 and 361 of the Code.
  • provisions in Section 195(1)(a)(i) of the Code
  • Section 353 read with Section 34, I.P.C
  • Section 195 of the Code the provision
  • provision of Section 195 of the Code.
  • provision in Section 195 of the Code
  • provisions in Section 50 of the Code
  • Sections 186 and 353 of the I.P.C.
  • provisions of Section 195, Cr. P.C.,
  • Section 195(1)(a)(i) of the Code.
  • Section 461(1)(k) of the Code
  • Section 190(1)(c) of the Code,
  • Sections 228 and 353, I.P.C.
  • Sections 186 and 353, I.P.C.
  • Section 188 of the I.P.C.
  • Section 353/34,I.P.C.
  • Section 353, I.P.C.
  • Section 186, I.P.C.
  • Section 332, I.P.C.
  • Section 186 1.P.C
  • Section 34, I.P.C.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • K.L Shrivastava, J.
Acts
  • Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860),
  • Section 195(1)(a)(i) of the Criminal P.C. 1973 (for short 'the Code')
  • Section 186 ibid conviction under Section 353, I.P.C.
  • SECTION 6 PROBATION OF OFFENDERS ACT 1958
  • provision of Sections 360 and 361 of the Code.
  • provisions in Section 195(1)(a)(i) of the Code
  • Section 353 read with Section 34, I.P.C
  • Section 195 of the Code the provision
  • provision of Section 195 of the Code.
  • provision in Section 195 of the Code
  • provisions in Section 50 of the Code
  • Sections 186 and 353 of the I.P.C.
  • provisions of Section 195, Cr. P.C.,
  • Section 195(1)(a)(i) of the Code.
  • Section 461(1)(k) of the Code
  • Section 190(1)(c) of the Code,
  • Sections 228 and 353, I.P.C.
  • Sections 186 and 353, I.P.C.
  • Section 188 of the I.P.C.
  • Section 353/34,I.P.C.
  • Section 353, I.P.C.
  • Section 186, I.P.C.
  • Section 332, I.P.C.
  • Section 186 1.P.C
  • Section 34, I.P.C.
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision petition challenges the appellate judgment and order dated 1-7-1983 of the Additional Sessions Judge in Criminal Appeal No. 247 of 1982. The appellate court confirmed convictions of each petitioner under Section 353 read with Section 34 of the Indian Penal Code (I.P.C.) and reduced the sentence originally imposed by the Additional Chief Judicial Magistrate in Criminal Case No. 183 of 1978 (the Magistrate had recorded rigorous imprisonment for one year and a fine of Rs. 500; the sentence was reduced to rigorous imprisonment for six months and a fine).

The prosecution story is that on 2-2-1978 Sub-Inspector Y. P. Yadav (P.W. 1), acting under a search-warrant issued by the Deputy Superintendent of Police, raided the house of the petitioner Shankarlal and found his son Subhash (who was later acquitted on appeal) allegedly engaging in "Satta" gambling; Subhash was arrested with money and articles. While Subhash was being taken to the police station, it is alleged that Subhash, the three petitioners and 15 to 20 other persons pelted stones at the police party and shouted that panchnamas be snatched and the police party be beaten. They followed the police party to the police station and thereby obstructed Sub-Inspector Yadav in the discharge of his public functions.

Following investigation, charges under Sections 186 and 353 I.P.C. were framed against the petitioners. At trial, the Magistrate found that the offence under Section 186 was not proved but convicted Subhash and the petitioners under Section 353 read with Section 34 I.P.C. On appeal, the Additional Sessions Judge acquitted Subhash but maintained the convictions of the petitioners under Section 353/34, while reducing the sentences as noted. The present revision challenges that appellate decision.

Legal Issues Presented

  1. Whether the proceedings and convictions under Section 353 I.P.C. (when the facts are interwoven with offences falling within Sections 172–188 I.P.C.) were maintainable without a written complaint by the public servant concerned or by a public servant administratively superior, as required by Section 195(1)(a)(i) of the Criminal Procedure Code (Cr. P.C., 1973)?
  2. Whether the trial proceedings are void (and therefore vitiated) because the Magistrate took cognizance without the special complaint required under Section 195(1)(a)(i) of the Cr. P.C.?
  3. Ancillary issues raised (not decided on merits by the court): compliance with Section 50 Cr. P.C. (informing an arrested person of his right to be released on bail) and the question of sentencing a juvenile (Ashok) without complying with Section 6 of the Probation of Offenders Act, 1958.

Arguments of the Parties

Petitioners' Arguments

  • Because the facts relating to the offences under Sections 186 and 353 I.P.C. are the same or interwoven, cognizance of the offence under Section 186 could not be taken in the absence of a written complaint by the public servant concerned (or an administratively superior officer); accordingly, cognizance of the offence under Section 353 was also barred by Section 195(1)(a)(i) Cr. P.C. (relying on State of Karnataka v. Hemareddy, AIR 1981 SC 1417).
  • The petitioners could not lawfully be convicted under Section 353 read with Section 34 without relevant evidence of common intention; alternatively, Section 353 is an aggravated form of Section 186, and an acquittal under Section 186 precluded conviction under Section 353.
  • Non-compliance with Section 50 Cr. P.C.: because Subhash's arrest was bailable, police were duty-bound to inform him of his right to be released on bail; taking him to the police station was thus unlawful, and persons insisting on his release could not be guilty under Section 353.
  • A petitioner (Ashok) being below 21 years of age could not have been sentenced to imprisonment without complying with the mandatory requirements of Section 6 of the Probation of Offenders Act, 1958; reference also made to Sections 360 and 361 Cr. P.C.

Respondent's Arguments

  • While petitioners could demand Subhash's release on bail, they could not have obstructed or assaulted the police party; on the facts and circumstances, the respondent contends that the convictions and sentences of the petitioners did not merit interference in revision.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
State of Karnataka v. Hemareddy, AIR 1981 SC 1417 (1981 Cri LJ 1019) Relied upon by the petitioners (reference in the petitioner's submissions). The opinion records that reliance was placed on this decision by petitioners in support of the contention that Section 195(1)(a)(i) barred cognizance; the decision is cited as part of petitioners' arguments.
State v. Kantilal, 1977 MPLJ (Notes) 1 Affirms that making an offence cognizable and non-bailable (e.g., Section 188 I.P.C.) does not affect the mandatory requirement of a special complaint under Section 195 Cr. P.C. Used to support the court's explanation of the underlying purpose and mandatory nature of Section 195(1)(a)(i).
Radhe Shyam v. State, AIR 1968 All 342 : 1968 Cri LJ 1329 Holds that if, in truth and substance, an offence falls in the category of sections in Section 195, the Court cannot convict without complying with Section 195; offences forming part of the same transaction cannot be split to avoid Section 195. The court quoted and relied on this decision to conclude that offences which are interwoven cannot be prosecuted under a label that avoids the requirement of a special complaint under Section 195.
Bashir-ul-Haq v. State of West Bengal, AIR 1953 SC 293 : 1953 Cri LJ 1232 States that the provision in Section 195 should not be evaded by devices or camouflages; test is whether facts primarily disclose an offence requiring special complaint. Cited for the proposition that the substance of the facts determines whether Section 195 applies and that one cannot evade Section 195 by misdescription of the offence.
In Re Chinnayya Goundan, AIR 1948 Mad 474 : 1948-49 Cri LJ 737 Principle that facts should be considered as a whole and there should be no splitting up of facts to prosecute for an offence while disregarding remaining facts. Quoted to support the principle that a court must consider the acts as a whole and cannot take cognizance when the combined facts disclose an offence requiring a special complaint under Section 195.
State v. Kathi Unad, AIR 1955 Saurashtra 10 : 1955 Cri LJ 52 Holds that obstruction may lie in assault/hurt and that conviction under another section would amount to convicting for the primary offence; prosecution cannot circumvent Section 195 by dubious methods. Relied upon to demonstrate that prosecution cannot circumvent Section 195 by choosing a different label when the primary offence falls within the Section 195 category.
Makaradhwaj Sahu v. State, AIR 1954 Orissa 175 : 1954 Cri LJ 950 Referenced as authority in the same line of decisions concerning evasion of Section 195. Noted as part of the judicial trend that courts should not allow circumvention of Section 195; used to reinforce the court's view.
AIR 1953 Nag 290 : 1953 Cri LJ 1573 Cited as pertinent authority relating to the same subject-matter (evasion of Section 195). Referred to as part of the body of case law supporting the court's conclusion about the mandatory nature of Section 195.
Govind Prasad's case, 1975 Cri LJ 1249 (Cal) Discussed in the context of Section 50 Cr. P.C.; addresses consequences of non-compliance with the duty to inform an arrested person of grounds of arrest and of right to bail. Referred to when the court observed that non-compliance with Section 50 (which reflects Article 22(1) of the Constitution) renders an arrest and detention illegal; cited in passing, but the court did not decide the other contentions on merits.

Court's Reasoning and Analysis

The court's analysis focused primarily on Section 195(1)(a)(i) Cr. P.C. and whether the proceedings were maintainable without a special written complaint by the public servant concerned (or an administratively superior officer).

  1. The court explained the purpose of Section 195(1)(a)(i): to prevent misuse of criminal prosecution machinery by unconcerned persons acting on frivolous, vexatious or revengeful motives. The court referred to State v. Kantilal to note that making an offence cognizable and non-bailable does not negate the mandatory requirement of a special complaint under Section 195.
  2. The court examined the nature of the two offences charged: Section 186 (voluntarily obstructing a public servant in the discharge of his public functions) and Section 353 (assault or use of criminal force to deter a public servant from the discharge of his duty). The text of Section 353 was reproduced.
  3. Relying on Radhe Shyam and other authorities (including Bashir-ul-Haq, In Re Chinnayya Goundan, State v. Kathi Unad and allied authorities), the court emphasized the consistent principle that where the facts, taken as a whole, disclose an offence falling within the ambit of Section 195, the prosecution cannot avoid the section by labeling or splitting offences. Specifically, if the assault or insult and the obstruction are interwoven in the same episode, the matter cannot be reframed so as to bypass the special complaint requirement.
  4. Applying those authorities to the facts of the present case, the court concluded that the alleged obstruction essentially lay in the assault and use of criminal force; in truth and substance the offence fell in the category of sections mentioned in Section 195. Therefore, it was not open to the prosecution to bypass Section 195 by prosecuting only under Section 353.
  5. The court invoked Section 461(1)(k) Cr. P.C., which provides that if any Magistrate not empowered by law takes cognizance of an offence under Section 190(1)(c), the proceedings shall be void. On that basis, the court held that the proceedings before the trial Magistrate were void because the Magistrate could not take cognizance without the special complaint required under Section 195.
  6. Because the court decided the matter on the basis of the bar in Section 195(1)(a)(i), it expressly declined to enter into the merits of the other contentions (including those based on Section 50 Cr. P.C., the Probation of Offenders Act, or Sections 360/361 Cr. P.C.), though it noted the law on Section 50 and the constitutional connection to Article 22(1).

Holding and Implications

Holding: The court allowed the revision petition. It held that the trial for the offences under Sections 186 and 353 I.P.C., conducted without the special complaint required under Section 195(1)(a)(i) Cr. P.C., was illegal, vitiated and therefore required to be quashed.

Direct Implications on the Parties:

  • The convictions and sentences passed on each of the petitioners were set aside.
  • The proceedings in the Courts connected with those convictions were quashed.
  • The bail bonds of the petitioners were ordered to stand discharged.
  • Any fine paid was to be refunded to the petitioners.

The opinion decides the case on the basis that proceedings taken without the special complaint mandated by Section 195(1)(a)(i) are void. The judgment does not purport to establish or state broader new legal principles beyond applying existing authorities and the statutory scheme; no novel precedent-creating proposition is expressly articulated in the text beyond its application of the cited authorities to the facts.

Show full summary ...

    Ashok v. State

    1. This revision petition is directed against the appellate judgment and order dated 1-7-83 passed by the Additional Sessions Judge, how in Criminal Appeal No. 247 of 1982 confirming the conviction of each of the petitioners under Section 353/34,I.P.C. and reducing the sentence of rigorous imprisonment for one year and a fine of Rs. 500/- recorded by the Additional Chief Judicial Magistrate, how in Criminal Case No. 183of 1978 to R.I. for6 monthsandfine.

    2. Circumstances giving rise to this petition are these. According to the prosecution story on 2-2-78 Sub-Inspector Y.P. Yadav (P.W. 1) after search-warrant from the Deputy Superintendent of Police, raided the house of the petitioner Shankarlal and finding his son Subbash (since acquitted in appeal) indulging in Satta gambling, arrested him with money and articles. Later when Subhash was being taken to the police station, he himself and the three petitioners and 15 to 20 other persons pelted stones at the police party and were shouting that Panchnamas be snatched and the police party be beaten. They followed the police party up to the police station thereby obstructing the Sub-Inspector Yadav in the discharge of his public functions.

    3. At the conclusion of the investigation, the petitioners along with Subhash were prosecuted. Charges under Sections 186 and 353, I.P.C. were framed against each of them.

    4. At the conclusion of the trial, the learned Magistrate held that the offence under Section 186, I.P.C. is not proved. He, however, convicted Subhash and the petitioners under Section 353 read with Section 34, I.P.C

    5. In appeal, by the impugned judgment and order the learned Additional Sessions Judge acquitted Subhash and maintained the convictions of the petitioners under Section 353/34, I.P.C. reducing the sentences as already stated.

    6. The contention of the petitioners' learned Counsel is that in the instant case, facts relating to the offences under Sections 186 and 353, I.P.C. being the same or at least interwoven, it has to be held that as cognizance of the offence under Section 186 1.P.C could not, in view of Section 195(1)(a)(i) of the Criminal P.C. 1973 (for short 'the Code') have been taken in absence of a written complaint by the public servant concerned or by some other public servant to whom he was administratively subordinate cognizance of the offence under Section 353 ibid was, for that reason, also barred. Reliance was placed on the decision in State of Karnataka v. Hemareddy AIR 1981 SC 1417 : 1981 Cri LJ 1019.

    7. The contention of the learned Counsel for the petitioners further is that the charge being under Section 353, I.P.C, the petitioners could not be convicted for the said offence with recourse to Section 34, I.P.C. in absence of relevant evidence. It is further contended that the offence under Section 353, I.P.C. is an aggravated form of the offence under Section 186, I.P.C. and in view &l the acquittal under Section 186 ibid conviction under Section 353, I.P.C. could not be entered.

    8. The1 petitioners' learned Counsel goes on to contend that the offence for which Subhash was arrested being bailable, it was the duty of the police under section 50 of the code to inform him that he could be released on bail and it was illegal on its part to take him to the police station. It is urged that, in the circumstances, those insisting on his being released, could not be held to have committed any offence under Section 353, I.P.C.

    9. It was lastly contended that the petitioner Ashok being below 21 years of age could not have been sentenced by the learned trial Magistrate to imprisonment, without complying with the mandatory requirements of Section 6 of the Probation of Offenders Act, 1958. this Court's attention was also invited to the provision of Sections 360 and 361 of the Code.

    10. learned Counsel for the respondent contends that when the police was taking Subhash to the police station, the petitioners could demand his release on bail but they could not have indulged in obstructing and assaulting the police party and on the facts and in the circumstances of the case, their convictions and sentences do not deserve interference in revision.

    11. The point for consideration is whether the revision petition deserves to be allowed.

    12. I shall first take up the contention raised with reference to Section 195(1)(a)(i) of the Code. The provision reads thus:

    195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence:

    (I) No Court shall take cognizance

    (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or....

    except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate:

    The underlying purpose behind the provision seems to be to check misuse of the machinery of criminal prosecution by unconcerned persons on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. As pointed out in State v. Kantilal, 1977 MPLJ (Notes) 1 the fact that the offence under Section 188 of the I.P.C. is made cognizable and non-bailable does not affect the mandatory provision regarding special complaint under section 195 of the code.

    13. Now as to the two offences in respect of which the petitioners were prosecuted, Section 186 embodies the penal provision for voluntarily obstructing any public servant in the discharge of his public functions. Section 353, I.P.C. is in these terms:

    353. Assaultor criminal force to deter public servant from discharge of his duty Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

    14. In the decision in Radhe Shyam v. State AIR 1968 All 342 : 1968 Cri LJ 1329 it had been held that if in truth and substance an offence falls in the category of sections in Section 195, it is not open to the Court to convict an accused without complying with the provisions of that section. Therein the prosecution was for offences under Sections 228 and 353, I.P.C. committed in the course of the same transaction, and it was held that the offences could not be split up to avoid the provision of Section 195 of the Code. In paragraph 4 of the decision it had been stated as under:

    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 in 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.

    15. In the aforesaid decision, the one in Bashir-ul-Haq v. State of West Bengal AIR 1953 SC 293 : 1953 Cri LJ 1232 has been referred to. According to this Supreme Court decision, the provision in Section 195 of the Code should not 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. If in truth and substance the offence falls in the category of sections mentioned in section 195 of the code, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it or changing its garb. If the facts disclose an offence requiring special complaint under Section 195 of the Code the provision could not be circumvented by filing a complaint for which no special complaint is required under law, the nature of the offence being the same.

    16. Paragraphs 8 and 9 of the decision in Radhe Shyam's case : 1968 Cri LJ 1329 (All) (supra) may profitably be reproduced. They run thus:

    8. Again In Re. Chinnayya Goundan AIR 1948 Mad 474 : 1948-49 Cri LJ 737 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 accused person for an offence which the remaining facts disclose. Considering the acts 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 Saurashtra 10 : 1955 Cri LJ 52, the learned Judge relying on the Supreme Court case of Bashir-ul-Haq AIR 1953 SC 293 : 1953 Cri LJ 1232 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 186, 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 AIR 1954 Orissa 175 : 1954 Cri LJ 950. The decision in AIR 1953 Nag 290 : (1953 Cri LJ 1573) is also pertinent.

    17. In the instant case too, the very act of obstruction lies in the alleged assault and use of criminal force. In truth and substance the offence in question falls in the category of sections mentioned in section 195 of the code and it was not open to bypass its provisions even by choosing to prosecute under Section 353; I.P.C. only.

    18. According to Section 461(1)(k) of the Code if any Magistrate not being empowered by law in this behalf takes cognizance of an offence under Section 190(1)(c) of the Code, his proceedings shall be void. In the case in hand the proceedings before the learned trial Magistrate must be held to be void, as in view of the provisions in Section 195(1)(a)(i) of the Code and the authorities mentioned above, he could not take cognizance of the offences without complaint by the public servant concerned or by any other officer to whom he is administratively subordinate. When Magistrate acts in contravention of bar under section 195 of the code, the proceeding has to be quashed.

    19. In the light of the view taken by me in regard to the contention of the petitioners' learned Counsel based on Section 195(1)(a)(i) of the Code, the merits of the other contentions need not be gone into.

    20. In passing, reference may, however, be made to the provisions in Section 50 of the Code and the effect of their non-compliance. The provision reads thus:

    (1) ...

    50. Person arrested to be informed of grounds of arrest and of right to bail Every police officer, or other person arresting any person without warrant shall forthwith, communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

    (2) ...

    Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

    The provisions are in conformity with Article 22(1) of the Constitution of India and non-compliance with the aforesaid mandatory provisions of the Code amounts to non-compliance with the procedure established by law and renders the arrest and detention of "the person concerned illegal. In this connection the decision in Govind Prasad's case, 1975 Cri LJ 1249 (Cal) may usefully be perused.

    21. In the ultimate analysis I hold that the trial for the offences under Sections 186 and 353 of the I.P.C. without a special complaint as required under Section 195(1)(a)(i) of the Code being illegal is vitiated and deserves to be quashed.

    22. In the result, the revision petition succeeds and is allowed. The conviction and sentence passed on each of the petitioners are set aside. The proceedings in the Courts connected therewith are quashed. The bail bonds of the petitioners shall stand discharged Fine if paid shall be refunded to the petitioners.

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    Comments

    Ashok v. State
    (Oct 9, 1986)