# DURGACHARAN NAIK AND ORS v. STATE OF ORISSA February 23, 1966

- **Citation:** [1966] 3 S.C.R. 636
- **Court:** Supreme Court of India
- **Decided:** 1966-02-23
- **Case number:** Criminal Appeal No. 67 of 1964
- **Bench:** K. SUBBA RAO Al'D V. RAMASWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/durgacharan-naik-and-ors-v-state-of-orissa-february-23-1966-3639
- **Pages:** 7

## Headnote

Cod• of Criminal Procedure (Act 5 of 1898), s. 195-Facts clisc/D1ing offences under ss. 186 and 353, Indian Penal Cod..-Pro«cution for
off•nce under .r. 353 without written complaUit of public urvantMaintainabi/ity.
The appellanls were charged with offences untrer s. 143/402, 186
and 353, Indian Penal Code for having obstructed and assaulted two
public "'1"Vants in the discharge of their 11ublic duty of executing the
decree of a Civil Court. They were acqmtted by the trial Court, but
on appeal, the High Court convicted them under s. 353, acquitted them
urder ss. 143/ 402 and held that the prosecution under s. 186 wu barred
by s. 195, Criminal Procedure Code, which
requires a
complaint in
writing by the public servant before a court could take cognizance of
the offence.
lo appeal to this Court, it was contended that the prosecution under
s. 353, Indian Penal Code, was also barred by s. 195 Criminal Procedure
Code.
HELD: Sections 186 and 353, Indian Penal Code. relate to two
distinct offences and s. 353 is not referred to in s. 195 Cr.P.C. Section
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195, Criminal Procedure Code, does not bar the trial of an
accused
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pe11on for a distinct offence disclosed by the same set of facts, but which
is not within tho ambit of that section, when there is no camouflage or
evasion to circumvent the Section. Therefore tbe trial of the appellants
for the distinct offence under s. 353 was not barred though it was based
practically on the same facts as for the prosecution
under s. 186, and
the High Court wa. justified, on the evidence,
in interfering with tho
order of acquittal pa.sect by the trial Court in regard to that charge.
[640 E, G; 641 EJ
JI
Sanwat Singh v. State of Rajasthan [1961] 3. S.C.R. 120 and Agarwal
and Kulkarni v. Stat, of Maharashtra, A.I.R. 1963 S.C. 200, followed.
Basir.ul-Huk v. State of West Bengal [1953], S.C.R. 836 and Hori
Ram Singh v. Th• Crown, (1939] F.C.R. 159, referred to.

## Text

DURGACHARAN NAIK AND ORS.
v.
STATE OF ORISSA
February 23, 1966.
[K. SUBBA RAO Al'D V. RAMASWAMI, JJ.j
Cod• of Criminal Procedure (Act 5 of 1898), s. 195-Facts clisc/D1ing offences under ss. 186 and 353, Indian Penal Cod..-Pro«cution for
off•nce under .r. 353 without written complaUit of public urvantMaintainabi/ity.
The appellanls were charged with offences untrer s. 143/402, 186
and 353, Indian Penal Code for having obstructed and assaulted two
public "'1"Vants in the discharge of their 11ublic duty of executing the
decree of a Civil Court. They were acqmtted by the trial Court, but
on appeal, the High Court convicted them under s. 353, acquitted them
urder ss. 143/ 402 and held that the prosecution under s. 186 wu barred
by s. 195, Criminal Procedure Code, which
requires a
complaint in
writing by the public servant before a court could take cognizance of
the offence.
lo appeal to this Court, it was contended that the prosecution under
s. 353, Indian Penal Code, was also barred by s. 195 Criminal Procedure
Code.
HELD: Sections 186 and 353, Indian Penal Code. relate to two
distinct offences and s. 353 is not referred to in s. 195 Cr.P.C. Section
B
c
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195, Criminal Procedure Code, does not bar the trial of an
accused
I!:
pe11on for a distinct offence disclosed by the same set of facts, but which
is not within tho ambit of that section, when there is no camouflage or
evasion to circumvent the Section. Therefore tbe trial of the appellants
for the distinct offence under s. 353 was not barred though it was based
practically on the same facts as for the prosecution
under s. 186, and
the High Court wa. justified, on the evidence,
in interfering with tho
order of acquittal pa.sect by the trial Court in regard to that charge.
[640 E, G; 641 EJ
JI
Sanwat Singh v. State of Rajasthan [1961] 3. S.C.R. 120 and Agarwal
and Kulkarni v. Stat, of Maharashtra, A.I.R. 1963 S.C. 200, followed.
Basir.ul-Huk v. State of West Bengal [1953], S.C.R. 836 and Hori
Ram Singh v. Th• Crown, (1939] F.C.R. 159, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
67 of 1964.
Appeal by special leave from the judgment and order dated
March 2, 1964 of the Orissa High Court in Government Appeal No.
49 of 1963.
R. K. Garg, S. C. Agaru·a/a, M. K. Ramamur1hy and D. P.
Singh, for the appellanls.
II. R. Khanna and R. N. Sachthey, for the respondent ..
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DURGACHARAN v. STATE (Ramaswami, I.)
637
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave,
from the judgment of the Orissa High Court dated March 2, 1964
in Government Appeal No. 49 of 1963 by which the High Court
set aside the order of acquittal passed by the Assistant Sessions
Judge of Puri and convicted the appellants under s. 353 of the
Indian Penal Code and sentenced them to 4 months' rigorous imprisonment.
The decree-holders Panu Sahu and Naba Sahu levied execution of the decree (Ex. Case No. 125/62) in the Court of the Munsif,
Puri against the appellants and a writ of attachment of the moveables of the judgment-debtor was issued for execution through
P.W. 2, Sadhu Charan Mohanty, a peon of the Civil Court, Puri,
returnable by August 10, 1962. P.W. 2 reached the village of the
judgment-debtors on August 10, 1962 at 10 a.m. with the warrant
of attachment and asked the judgment-debtors to pay the decretal dues of Rs. 952·10 nP, and when he was going to seize some
of the moveables, the appellants came there with lathis and resisted him. P.W. 2 sent a report-Ex. 4-to the Court through Nabaghan requesting the Court to give necessary police help. Accordingly on the same day the Munsif wrote a letter, Ex. 2, requesting
the Superintendent of Police, Puri to direct the Officer-in-charge,
Sadar Police Station, to give immediate police help to the process
server. In pursuance of this letter, P.W. 1, the Assistant SubInspector, Sadar Police Station, Puri was deputed along with two
constables including P. W. 3, Constable no. 613. They went to the
village Sanua where the writ of attachment was to be executed.
P.W. 6 the Naib Sarpanch and P.W. 8 the Chowkidar of the village Chhaitna also accompanied them. On reaching the spot,
they found P.W. 2 sitting in front of the house of Durga Charan
Naik-One of the judgment-debtors. The A.S.I. then called out
Fakir. Charan Naik, father of Durga Charan Naik one of the judgment-debtors, who opened the door and paid Rs. 952 · 10 nP to
the process server, Sadhu Charan Mohanty and obtained a receipt
from him. After the money was paid, all of them left the village
and at about 7 p.m. while they were crossing a river nearby in a
boat, P.W. I saw the appellant Dnrga Charan with 10 or 12 persons
coming from the opposite direction. On seeing them, P.W. I
apprehended some trouble and directed P.W. 2 to hand over the
money to the chowkidar, P.W. 8. When all of them got down
from the boat, appellant Durga Charan forcibly dragged the A.S.I.
A number of other persons including the other appellants assembled at the spot. Durga Charan threatened to assault tlle A.S.I
if he did not return the money. Durga Charan also searched hi
pockets and Netrananda threatened the A.S.I. by saying that he
would not leave the place until the money was returned. When
P.W. I wanted to write a report to his police station, Netrananda
MllSup.Cl/66-9
638
SUPREME COURT REPORTS
[1966) 3 S.C.R.
obstructed him by holding his right hand.
Bipra and Jugal caught
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hold of the hands of P. W. 2 and took him to the river bank and
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demanded return of the money. Then at the intervention of some
outsiders the appellants left the spot.
P.W. I lodged the first
"'
information report at the police station next morning and after
investigation the appellants were chargeshected and committed to
the court of Sessions.
e
The appellants were charged under ss. 143/402, Indian Penal
Code on the allegation that they formed an unlawful assembly with
the common object of committing dacoity. Durga Charan, Jugal,
Bipra along with three others were further charged under s. 186,
Indian Penal Code for having voluntarily obstructed P.Ws l and
2 in the discharge of their public duty.
Durga Charan and Netrananda were also charged under s. 353, Indian Penal Code for having
used criminal force against P.W. I and Bipra Charan and Jugal
were similarly charged under s. 353, Indian Penal Code for having
used criminal force against P. W. 2 while both of them were discharging their duty as public servants. The Additional Sessions
Judge acquitted the appellants of all the charges. The State Government took the matter in appeal to the Orisia High Court which set
aaide the order of acquittal with regard to the 4 appellants and
conYicted them under s. 353, Indian Penal Code. The High Court,
however, held that there was no satisfactory evidence to convict
tile appellants under ss. 143/402, Indian Penal Code. As regards
the charge under s. 186, Indian Penal Code, the High Court expressed the view that the prosecution was barred under the provisions of s. 195, Criminal Procedure Code.
In iupport of this appeal Mr. Garg submitted, in the first
place, that the High Court had no justification for interfering with
the order of acquittal passed by the Additional Sessio•s Judge
and that it has not applied the correct principle in a matter of
this description. Learned
Counsel took us through the judgments of the High Court and of the trial court and stressed the
argument that there was no evidence upon which the High Court
reached the finding that the appellants used criminal force against
P.Ws I and 2. We arc unable to accept the argument of Mr. Garg
as correct. The High Court has mainly relied upon the evidence
of P.Ws I, 2 and 3 and P.Ws 9 to 13 for holding that the appellants
used criminal force against P.Ws I and 2.
The High Court has also
observed that P.W. 2 was entrusted with the execution of the writ
of attachment. He was also entrusted with the official cheque book
(Ex. 5) to give the receipt in token of payment of the dccretal dues.
In the co11rse of his official business P.W. 2 was carrying the money
realised from the judgment-debtors for necessary deposit in Court.
So far as P.W. I was concerned, he was deputed to render assistance to P.W. 2 in executing the writ of attachment. ll is manifest
that both P.Ws. I and 2 were assaulted by the appellants when they
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DURGACHARAN v. STATE (Ramaswami, l.)
639
were discharging their duties as public servants. The High Court
has also accepted the evidence of P.W. I that Durga Charan caught
hold of his hands and demanded money on the threat of assault.
P.W. 2, the process server stated that Bipra Charan and Jugal
caught hold of his hands and Durga Charan told him that he would
not let anybody go unless the money was returned. P.W. 2 added
that Bipra and Jugal also snatched away his bag. The High Court
analysed the evidence of P.Ws 9 to 13 and reached the conclusion
that the appellants used criminal force against P.Ws I and 2 in the
course of the performance of their duties. Ille Hii:h Court Juu;
also dealt with the reasoning of the trial court and has pointed out
that the order of acquittal of the appellants with regard to
s. 353, Indian Penal Code was not justified. In Sanwat Singh &
Others v. State of Rajasthan(1) it was pointed out by this Court that
an appellate court has full power to review the evidence upofl which
the order of acquittal is founded and that the principles laid down
by the Judicial Committee in Sheo Swarup's case (2) afford a correct
guide for the appellate court's apJilroach to a case disposing of
such an appeal. It was further observed that different phraseology
ullCd in the judgments of this Court, such as "substantial and
compelling reasons", "good and sufficiently cogent reasons" and
"strong reasons" are not intended to curtail the undoubted power
of an appellate Court in an appeal against acquittal to review the
entire evidence and to come to its own conclusion, but in doing so
should not only consider every matter on record having a bearing
on the questions of fact and the reasons given by the Court below in
support of its order of acquittal in arriving at a conclusion on those
facts, but should express the reasons in its judgment, which led it
to hold that the acquittal was not justified. The same opinion has
been expressed by this Court in a later decision in M. G. Agarwal
and M. K. Kulkarni v. State of Maharashtra (3). It was pointed
out in that case that there is no doubt that the power conferred by
cl. (a) of s. 423(1) which deals with an appeal against an order of
acquittal is as wide as the power conferred by cl. (b) which deals
with an appeal against an order of conviction, and so, it is obvious
that the High Court's powers in dealing with criminal appeals are
equally wide whethertheappeal in question is one against acquittal
or against conviction. It was observed that the test suggested by the
expression "substantial and compelling reasons" for reversing a
judgment of acquittal, should not be construed as a formula whicJI.
has to be rigidly applied in every case, and so, it is not necessary
that before reversing a judgment of acquittal, the High Court
must necessarily characterise the findings recorded therein as perverse. Tested in the light of these principles laid down by these
authorities, we are satisfied that the High Court was justified, in the
present case, in interfering with the order of acquittal passed by
(!) [1961] 3 S.C.R. 120.
(2) 61 I.A. 398.
(3) A.l.R. 1963 S.C. 2'JO.
640
SUPREME COURT REPORTS
(1966] 3 S.C.R.
the Additional Sessions Judge with regard to the charge under s.
353, Indian Penal Code and the judgment of the High Court is not
vitiated by any error of law. We accordingly hold that Mr. Garg
is unable to make good his argument on this aspect of the case.
We pass on to consider the next contention of the appellants
that the conviction of the appellants under s. 353, Indian Penal
Code is illegal because there is a contravention of s. 195(1) of the
Criminal Procedure Code which requires a complaint in writing
by the process server or the A.SJ. It was submitted that the charge
under s. 353, Indian Penal Code is based upon the same facts as
the charge under s. 186, Indian Penal Code and no cognizance
could be taken of the offence under s. 186, Indian Penal Code
unless there was a complaint in writing as required by s. 195(1)
of the Criminal Procedure Code. It was argued that the conviction under s. 353, Indian Penal Code is tantamount, in the circum-
'tances of this case, to a circumvention of the requirement of
s. 195(1) of the Criminal Procedure Code and the conviction of the
appellants under s. 353, Indian Penal Code by the High Court was,
therefore, vitiated in law. We axe unable to accept this argument
as correct. It is true that most of the allegations in this case upon
which the charge under s. 353, Indian Penal Code is based are the
same as those constituting the charge under s. 186, Indian Penal
Code but it cannot be ignored that ss. 186 and 353, Indian Penal
Code relate to two distinct offences and while the offence under
the latter section is a cognizable offence, the one under the former
section is not so. The ingredients of the two offences arc also
distinct. Section 186, Indian Penal Code is applicable to a case
where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code
the ingredient of assault or use of criminal force while the public
servant is doing his duty as such is necessary. The quality of the
two offences is also different. Section 186 occurs in Ch. X of the
Indian Penal Code dealing with Contempts of the lawful authority
of public servants, while s. 353 occurs in Ch. XVI regarding the
offences affecting the human body. It is well-established that
s. 195 of the Criminal Procedure Code docs not bar the trial of an
accused person for a distinct offence disclosed by the same set of
facts but which is not within the ambit of that section. In Satis
Chandra Chakravarti v. Ram Dayal De(1) it was held by Full Bench
of the Calcutta High Court that where the maker of a single statement is guilty of two distinct offences, one under s. 211, Indian
Penal Code, which is an offence against public justice, and the
other an offence under s. 499, wherein the personal element largely
predominates, the offence under the latter section can be taken
cognizance of without the sanction of the court concerned, as the
Criminal Procedure Code has not provided for sanction of court
(I) 24 C.W.N. 982.
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DURGACHARAN v. STATE (Ramaswami, !.)
641
for taking cognizance of that offence. It was said that the two
offences being fundamentally distinct in nature, could be separately
taken cognizance of. That they are distinct in character is patent
from the fact that the former is made non-compoundable, while
the latter remains compoundable; in one for the initiation of the
proceedings the legislature requires the sanction of the court under
s. 195, Criminal Procedure Code, while in the other, cognizance
can be taken of the offence on the complaint of the person defamed.
It is pointed out in the Full Bench case that 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 orily which do not require sanction; because
to hold otherwise would amount to legislating and adding very
materially to the provisions of ss. 195 to 199 of the Code of Criminal Procedure. The decision of the Calcutta case has been quoted
with approval by this Court in Basir-ul-Huq and Others v. The State
of West Bengal (1) in which it was held that if the allegations made
in a false report disclose two distinct offences, one against a public
servant and the other against a private individual, the latter is not
debarred by the provisions of s. 195, Criminal Procedure Code,
from seeking redress for the offence committed against him.
In the present case, therefore, we are of the opinion that
s. 195, Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under s. 353 of the Indian Penal
Code, though it is practically based on the same facts as for the
prosecution under s. 186, Indian Penal Code.
Reference may be made, in this connection, to the decision
of the Federal Court in Hori Ram Singh v. The Crown (2). The
appellant in that case was charged with offences under ss. 409
and 477-A, Indian Penal Code. The offence under s. 477-A could
not be taken cognizance of without the previous consent of the
Governor under s. 270(1) of the Constitution Act, while the consent
of the Governor was not required for the institution of the proceedings under s. 409, Inidan Penal Code. The charge was that
the accused dishonestly misappropriated or converted to his own
use certain medicines entrusted to him in his official capacity as
a sub-assistant surgeon in the Punjab Provincial Subordinate
Medical Service. He was further charged that being a public
servant, he wilfully and with intent to defraud omitted to record
certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings
under s. 477-A were quashed by the Federal Court for want of
jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing
on the merits as regards the charge under s. 409, Indian Penal
(1) [1953] S.C.R. 836.
(2) [1939] F.C.R. 159 .
642
SUPRBMB COURT REPORTS
(1966] 3 S.C.R.
Code, and the order of acquittal passed by the sessions judge under
that charge was set aside. Two distinct offences having
been
committed in the same transaction, one an offence of misappropriation under s. 409 and the other an offence under s. 477-A which
required the sanction of the Governor, the circumstance that cognizance could not be taken of the latter offence without such consent
was not considered by the Federal Court as a bar to the trial of the
appellant with respect to the offence under s. 409.
We have expressed the view that s. 195, Criminal Procedure
Code does not bar the trial of an accused person for a distinct offence
disclosed by the same or slightly different set of facts and which
is not included within the ambit of the section, but we must point
out that the provisions of s. 195 cannot be evaded by resorting to
devices or camouflage. For instance, 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, on the ground that the latter offence
is a minor one of the same character, or by describing the offence
as 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 ins. 195, Criminal Procedure Code. Merely
by changing the garb or label of an offence which is essentially
an offence covered by the provisions of s. I 95 prosecution for such
an offence cannot be taken cognizance of by misdescribing it or by
putting a wrong label on it. On behalf of the appellants Mr. Garg
suggested that the prosecution of the appellants under s. 353, Indian
Penal Code was by way of evasion of the requirements of s. 195,
Criminal Procedure Code. But we are satisfied that there is no
substance in this argument and there is no camouflage or evasion
in the present case.
For these reasons we hold that the judgment of the High
Court dated March 2, 1964 must be affirmed and this appeal must be
dismissed.
Appeal dismissed.
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