MANI Vs. STATE

JUDGEMENT

(1.) THE 20 petitioners herein were charged by the police before the learned Special Sub-Divisional Magistrate, Tiruchirapalli for offences under Sections 147, 148, 454, 454 read with Sections 149, 427, 435 and 435 read with Section 149 I. P. C. The main allegation against them was as follows : On 10-2-1965 at about 11 a. m. at Jawahar Bazar, Karur Town, the petitioners were members of an unlawful assembly, that in prosecution of the common objects of such assembly, viz, in resisting the execution of law by defying the order passed under Section 144 Crl. P. C. in breaking open Kalyani Ready made Stores belonging to Govindarujulu Pillai and causing mischief and mischief by fire, committed the offence of rioting, that at that time accused 10 was armed with a crowbar and accused 7 and 21 with iron rods and that thereby accused 1 to 6,8. 9, 11 to 20 and 22 to 26 committed an offence punishable under Section 147 I. P C. and that accused 7, 10 and 21 committed an offence punishable under Section 148 I, P. C. After ten out of the 68 prosecution witnesses were examined, the petitioners filed an application before the Magistrate for dropping the proceedings on the ground that they were void for want of a complaint from the Deputy Tahsildnr Magistrate who had passed the prohibitory order under Section 144 Crl. P. C. prohibiting meetings and demonstrations for a period of 15 days from 3-2-1965. The learned Magistrate overruled this objection. This revision case has been filed against that order.

(2.) MR. P. R. Gokulakrishnnn, the learned Counsel for the petitioners, points out that the charge sheet filed by the police itself proceeds on the basis that the offences were committed in the course of defying the order passed under Section 144 Crl. P. C, and accordingly the defiance of that order would amount to an offence under Section 188 I. P. C. which could be taken cognisance of by the court under Section 195 (1) (a) Crl. P. C, only on the complaint by the Deputy Tahsildar or some other superior officer. The learned Counsel urges that the other offences attributed to the petitioners are only incidental and that the provisions of Section 195 (1) (a) Crl. P. C. cannot be allowed to be evaded by omitting the offence under Section 188 I. P. C.

(3.) THERE are two decisions of the Supreme Court which lay down the principles to be observed in such cases. The first is Basirul Huq v. State of West Bengal and the other is Chandrika Sao v. Slate of Bihar 1963 MWN Cri 49 at pp. 52 and 53. In the first case, the appellant Nurul Hilda gave false information to the police that one Dhirendra Nath had murdered his mother and he brought the police to the cremation ground. The corpse was removed when it was found that the complaint was false. Thereupon, Dhirendra Nath filed a complaint against Nurul Huda and others under Section 297 : I. P. C. (trespass upon cremation ground) and Section 500 I. P. C. (defamation ). Nurul Huda and other objected that the proceedings were void because the offence under Section 182 I. P. C. had been committed in laying false information to the police and the offence under Section 182 I. P. C. could be taken cognizance under Section 193 (1) (a) Crl. P. C. only on the complaint of the particular police officer. This contention was negatived. In respect of the offence under Section 297 I. P. C. it was pointed out that the offence was committed after the false information was given and was therefore a distinct offence : So far as the offence under Section 500 I. P. C. was concerned, it was recognised that it was contained in the very false complaint made to the police. Nevertheless, it was held that the case under Section 500 I. P. C could be taken cognizance of separately, though there was no complaint to the police in respect of the offence under Section 182 I. P. C. The decision of the Full Bench of this Court in Narayana Aivar v. Veerappa Pillai was approved. The first principle laid down was that Section 195 Cr. P. C. does not bar the trial of an accused for a distinct offence disclosed by the same facts and which is not included within the ambit of that section. The second principle was that the provisions of Section 195 Crl. P. C. could not be evaded by resorting to devices or camouflages. It was observed: The test whether there is evasion of 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 Cole, though in truth and substance the offence falls in the category of sections mentioned in Section 195 Crl. 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 misdescribing it or by putting a wrong label on it.