Judgment:
ORDER
1. In this revision petition filed under Ss. 397(1) read with 401, Cr.P.C., the petitioner Mr. H. N. Nanjegowda, who is accused-1 in Crime No. 26/84 of Cubbonpet Police Station, has sought to challenge the legality and correctness of the cognizance taken, process issued and the criminal proceedings instituted against him, in CC. No. 70/84, on the file of the Metropolitan Magistrate, VI Court, Bangalore City, for the offences punishable under Ss. 143, 186 and 341, I.P.C.
2. The facts of the case giving rise to the revision are as follows :-
On the complaint of one Smt. Gangamma, wife of Mr. Ugranarasimhappa, M.L.A. of Pavagada, that on January 6, 1984, one Congress-(I) worker by name Sampaiah, resident of Tumkur, had abducted her husband Mr. Ugranarasimphappa from the house of her brother Narasimhappa situated at Shantinagar, within the jurisdiction of Tilak Park Police Station, Tumkur, on 12-1-1984, at about 2 a.m. The Sub-Inspector of Police of Tilak Park Police Station, Tumkur, registered a case in Crime No. 10/84 for the offence punishable under Section 365, I.P.C. and issued F.I.R. to the Court. Later on, the Circle Inspector of Police, Tumkur, namely Mr. M. Ramaiah, took up further investigation. During the course of the investigation, when it allegedly transpired to him that Mr. Ugranarasimhappa M.L.A. had been wrongfully confined in the residential house of Mr. H. N. Nanjegowda, M.P., at No. 38, Lavelli Road, Bangalore-1, and there was danger to his life, on January 13, 1984, at about 2-30 a.m. he approached the Metropolitan Magistrate, VI Court, Bangalore, with an application for search warrant and having managed to obtain a search warrant, at about 4-50 a.m. on the same day (13-1-1984) accompanied by subordinate members of the staff including the Sub-Inspectors of Cubbon Park Police Station, Bangalore, and the Tilak Park Station, Tumkur, and two panchas, he went to the house of Mr. H. N. Nanjegowda and knocked at the door. When the petitioner Mr. Nanjegowda opened the door, and standing at the door, questioned as to why they had come and the Inspector Mr. M. Ramaiah reading over the warrant issued told him the purpose of his visit, Mr. Nanjegowda, it is alleged, suddenly closed the door, latched it from behind, and went inside shouting and through phone called his supporters and within a short time nearly 200 people gathered there and in spite of being told that he had gone there to execute the search warrant issued by the court, they prevented him from executing the warrant and by the back-door Mr. Ugranarasimhappa was removed to some unknown place. The Inspector therefore being unsuccessful in executing the warrant, went to the Cubbon Park Police Station and accordingly lodged a complaint against the petitioner and unknown others, on the basis of which the P.S.I. of Cubbon Park Police Station registered a case in Crime No. 26/84 and issued F.I.R. to the court.
3. On January 13, 1984, itself later on when Mr. Ugranarasimhappa appearing through his Advocate made an application for recalling the search warrant issued, the learned Magistrate keeping the search warrant in abeyance, directed to recall the same, awaiting the report of the Inspector. Later on the same day, at about 2 p.m. when the Inspector also returned the warrant with a report explaining in detail how the warrant could not be executed, and on January 16, 1984, when Mr. Ugranarasimhappa himself appearing before the Magistrate filed an affidavit, the Magistrate directed to close the proceedings of search warrant instituted in C. Mis. 5/84, on his file.
4. The C.P.I., Mr. M. Ramaiah, however, after completing the investigation in Cr. No. 26/84, when submitted a report on April 16, 1984, against the petitioner and 199 unknown others, the Magistrate taking cognizance having issued process against the petitioner, he has approached this Court.
5. Mr. Bhagwan, learned counsel for the petitioner, submitted that not only the search warrant issued by the Magistrate during night was illegal, but the manner in which the search warrant was obtained, case registered and the report made showed that political force was brought to bear upon the police and the police acting under the direction of the political leaders opposed to the petitioner, had sent up a false report and the criminal proceedings instituted against the petitioner were nothing but abuse of the process of the Court. He also submitted, the provisions of S. 195, Cr.P.C. were also bar against the Magistrate taking cognizance of the offence punishable under Section 186, I.P.C. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate, therefore, the process issued and the criminal proceedings instituted against the accused-petitioner deserve to be quashed. In support of his contention he has also placed reliance on the decisions reported in (1948) 49 Cri LJ 737 : (AIR 1948 MAD 474), (In re Chinnayya Goundan) and : 1981CriLJ1019 , (State of Karnataka v. Hemareddy).
6. Mr. S. S. Koti, learned High Court Government Pleader, however, relying upon the decisions reported in : 1953CriLJ1232 , (Basir-Ul-Huq v. State of West Bengal), : 1966CriLJ1491 , (Durgacharan v. State of Orissa) and (1976) 2 Kant LJ 348 : (1977 Cri LJ NOC 218), (Shankarappa v. Allisab) argued that the provisions of S. 195 of the Cri. P.C. are limited only to the prosecution of certain offences specified therein and not other distinct offences, although committed in the course of the same transaction.
7. The settled position of law in view of the various decisions of different High Courts and the Supreme Court is :
The provisions of S. 195, Cr.P.C. deal with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. In such cases, there is bar against the court taking cognizance of the offences, except on the written complaint of the public servant or the Court, as the case may be. The provisions are exception to the general rule that any person having knowledge of the commission of an offence may set the criminal law in motion, whether he is personally interested and affected or not. But, at the same time, the provisions of S. 195, Cr.P.C. are limited only to the prosecution of certain offences specified therein and not all offences. There is nothing in the section to suggest that prosecution in respect of other distinct offences based on the same facts could not be instituted, except otherwise in compliance with the provisions of the section. As pointed in the Full Bench decision of Calcutta High Court by Harish C.J. in the case of Dhirendra Nath v. Nurul Huda, : AIR1951Cal133 , which also received approval from the Supreme Court in the case of Basir-Ul-Huq v. State of West Bengal, : 1953CriLJ1232 , it is the duty of the court to construe the section according to the language used. It is not for the court to speculate as to what the legislature should or might have said. Regard could only be had to what the legislature has said. The legislature intended a particular form of complaint or previous sanction for the prosecution of those of the certain specified offences only. There is nothing in the section to suggest that the prosecution in respect of other offences based on the same facts could not be instituted except by observing the provisions of S. 195. Whereupon facts, commission of several offences is disclosed, some of which require sanction and other 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 Ss. 195 to 199, Cr.P.C. which deal with the requisites for the prosecution of certain specified offences and the provisions of those sections must be limited to prosecution for the offences actually indicated. If it was the intention of the legislature to make sanctions or complaints in a certain form necessary for the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in these sections, the legislature could have said so but it did not. However, as cautioned by their Lordships of the Supreme Court in the case of Basir-Ul-Huq, though S. 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts which is not included within the ambit of the section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or 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. 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 Code, though in truth and substance the offence falls in the category of sections mentioned in S. 195, Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S. 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. In the case of State of Karnataka v. Hemareddy, : 1981CriLJ1019 , the Supreme Court has also again held that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section 195(1)(b) of the Cr.P.C. and an offence for which a complaint of a court is necessary under that sub-section are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in S. 195(1)(b), Cr.P.C. should be upheld.
8. Here in the case on hand, the very object of unlawful assembly being to prevent the execution of the search warrant issued by the court, merely because an offence of wrongful restraint complained of was punishable under Section 341, I.P.C. could be taken cognizance by the court without a written complaint of the public servant or the court, it cannot be said that the Magistrate had not committed any error in taking cognizance of the offence on the report of the police; since the act of wrongful restraint, if any, was also only to prevent the execution of search warrant and in fact on a reading of the report, it appears, that the complaint regarding the wrongful restraint has been made only as a device or camouflage to evade application of S. 195, Cr.P.C. From the facts as disclosed from the report primarily and essentially the offence committed or complained of is one punishable under Section 186, I.P.C. and there was bar against the Magistrate taking cognizance of the offence except on the complaint of the Court or the public servant. The cognizance taken and the process issued on the police report made under Section 173 Cr.P.C. is illegal and without jurisdiction. Therefore, the process issued and the criminal proceedings instituted in CC. 70/84, on the file of the Metropolitan Magistrate, VI Court, Bangalore City, are liable to be quashed.
In the result, the revision is allowed. The process issued and the proceedings instituted are quashed.
9. Revision allowed.