Batakrushna Das Vs. the State

Batakrushna Das vs The State

Disposition Revision partly allowed Court Orissa Decided Aug 28, 1959

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Citation: sooperkanoon.com/524258
Court: Orissa High Court
Judge: R.L. Narasimham, C.J.
Decided On: Aug 28, 1959
Case Number: Criminal Revn. No. 407 of 1958
Subject: Criminal
Disposition: Revision partly allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Criminal
Outcome / disposition: Revision partly allowed
Acts & sections: Code of Criminal Procedure (CrPC) , 1898 - Sections 195 and 195(1); Indian Penal Code (IPC) - Sections 186, 353 and 504

Parties & Advocates

Appellant / Petitioner

Batakrushna Das

Advocate A.C. Mohanty and ;P. Pasayat, Adv.

Respondent

The State

Advocate Govt. Adv.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1898 - Sections 195 and 195(1); Indian Penal Code (IPC) - Sections 186, 353 and 504
Cases Referred: Huq v. State of West Bengal
Reported In: AIR1961Ori14; 26(1960)CLT148; 1961CriLJ132

Excerpt

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....air 1953 sc 293 the provisions of section 195(1), cr. p. c. are mandatory and the court has to see what is the nature of the offence alleged against the accused. if the offence, in essence, is one which requires compliance with the provisions of section 195 cr. p. c. merely by 'changing the garb or label' of the offence, and by describing the offence as one punishable under some other section of the indian penal code, the mandatory provisions of section 195, cr. p. c. cannot be evaded.as the facts constituting the offence under section 353 i. p. c. also constituted the offence under section 186 i. p. c. in the present case, and as the latter offence required a complaint in writing from the competent authority before cognizance could be taken, i must hold that the taking of cognizance of the offence under section 353 i. p. c. was also invalid.5. no such invalidity, however, attaches itself to the taking of cognizance of the offence under section 504 i. p. c. the insult to the public servants was alleged to have taken place prior to the obstruction caused by the petitioner in the discharge of their duties. the offence under section 504 i. p. c. is a distinct offence and that has been proved by the evidence of the public servant which has been accepted by the court of fact.6. i would therefore set aside the conviction of the petitioner under section 353 i, p. c. and acquit him of that offence. the sentence of fine of rs. 25/-passed for that offence is set aside. i would affirm his conviction under section 504 i. p. c. and maintain the sentence of fine of rs. 25/- passed for that offence; in default of the payment of fine he shall undergo simple imprisonment for one month. the revision petition is thus allowed in part.

Full Judgment

ORDER

R.L. Narasimham, C.J.

1. The petitioner was tried for offences under Sections 186, 504 and 353 I. P. C. by a First Class Magistrate of Dhenkanal, on the allegation that on 2-12-54 when the Subdivisional Magistrate, Sadar Dhenkanal the Gram Punchayat Organizer and other persons went to village Khadgaprasad to take photographs of the development work going on in that village, the petitioner abused them in insulting and filthy language saying that no real work was being done and the false propaganda was being made by taking photographs. It was alleged that the petitioner obstructed them when they were about to take photographs. On these allegations, a report (Ex. 1) was made by the Gram Punchayet Organizer, on the basis of which the petitioner was placed on trial.

2. The learned Magistrate acquitted him of the offence under Section 186 I. P. C. as the Sub-divisional Magistrate took cognizance of the offence prior to the filing of a complaint in writing by the public servant concerned as required by Section 195 of the Cr. P. C. But he convicted him of the offences under Sections 353 and 504 I. P. C. and sentenced him to pay a fine of Rs. 25/- under each count.

3. Mr. A. C. Mohanty, on behalf of the petitioner contended that the offence under Section 353 I. P. C. was very closely linked up with the main offence under Section 186 I. P. C. and once the trial court held that the taking of cognizance of the latter offence was invalid due to want of proper complaint the same invalidity would attach to the taking of cognizance of the offence, under Section 353 I. P. C. I am inclined to accept this argument.

4. As pointed out by their Lordships of the Supreme Court in Bashir-ul-Huq v. State of West Bengal, AIR 1953 SC 293 the provisions of Section 195(1), Cr. P. C. are mandatory and the court has to see what is the nature of the offence alleged against the accused. If the offence, in essence, is one which requires compliance with the provisions of Section 195 Cr. P. C. merely by 'changing the garb or label' of the offence, and by describing the offence as one punishable under some other section of the Indian Penal Code, the mandatory provisions of Section 195, Cr. P. C. cannot be evaded.

As the facts constituting the offence under Section 353 I. P. C. also constituted the offence under Section 186 I. P. C. in the present case, and as the latter offence required a complaint in writing from the competent authority before cognizance could be taken, I must hold that the taking of cognizance of the offence under Section 353 I. P. C. was also invalid.

5. No such invalidity, however, attaches itself to the taking of cognizance of the offence under Section 504 I. P. C. The insult to the public servants was alleged to have taken place prior to the obstruction caused by the petitioner in the discharge of their duties. The offence under Section 504 I. P. C. is a distinct offence and that has been proved by the evidence of the public servant which has been accepted by the court of fact.

6. I would therefore set aside the conviction of the petitioner under Section 353 I, P. C. and acquit him of that offence. The sentence of fine of Rs. 25/-passed for that offence is set aside. I would affirm his conviction under Section 504 I. P. C. and maintain the sentence of fine of Rs. 25/- passed for that offence; in default of the payment of fine he shall undergo simple imprisonment for one month. The revision petition is thus allowed in part.

Same Parties Batakrushna Das vs The State Same Subject Criminal Same Judge R.L. Narasimham, C.J. Acts & Sections Code of Criminal Procedure (CrPC) , 1898 - Sections 195 and 1...

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