JANKI PRASAD TIBREWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two criminal revision applications are taken up together with the consent of the parties and this order will govern both of them.

(2.) THESE applications arise out of an order dated 6th of April, 1971, passed by the Sub divisional Magistrate, Madhubani, taking cognisance of offences under Sections 323, 324 and 353 of the Indian Penal Code against the petitioners of both these applications.

(3.) BEING dissatisfied with the aforesaid order passed by the learned Sub divisional Magistrate, the petitioners have come to this Court in revision. Mr. B.P. Sinha, learned counsel appearing on behalf of the petitioners, has urged that even if the allegations made against the petitioners be accepted at their face value, this would disclose an offence under Section 186 of the Indian Penal Code and they can be prosecuted only under this section for voluntarily obstructing any public servant in the discharge of his public duties. Learned counsel has urged that there has been non -compliance with the provisions of Section 195 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and as such this proceeding has to be quashed. Section 195 of the Code lays down that no court shall take cognisance of any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. Mr. Sinha contends that in this case the Dalpati lodged information to the police station, but he did not lodge any complaint within the meaning of Section 4(h) of the Code before the Sub -divisional Magistrate and as such under the provision of Section 195(1) of the Code no court is entitled to take cognisance of an offence under Section 186 of the Indian Penal Code when there is no complaint in writing by any public servant concerned. He has urged that facts alleged in the written report submitted by the Dalpati before the police should be considered as a whole and there should not be any splitting up of the facts for the purpose of allowing the prosecution to circumvent the provision of Section 195(1) of the Code. His contention is that whatever hurt is alleged to have been committed by these petitioners was in the course of voluntarily obstructing the public servant in the discharge of his duty when he was engaged in executing the warrant of arrest and as such the allegations made out manifestly establish an offence under Section 186 of the Indian Penal Code, and under Section 195(1) of the Code no court is entitled to take cognisance of such an offence unless a complaint to that effect has been made by a public servant concerned.