Durgacharan Naik and ors v/s State of Orissa

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FACTS 

Ex. Case No. 125/62) in the Court of the Munsif, Puri against the appellants, the decree-holders Panu Sahu and Naha Sahu imposed execution of the decree, and a writ of attachment of the judgment-debtor’s moveables was issued for execution through P.W. 2, Sadhu Charan Mohanty, a peon of the Civil Court, Puri, returnable by August 10, 1962. On August 10, 1962, at 10 a.m., P.W. 2 arrived in the hamlet of the judgment-debtors with the attachment warrant and demanded that they pay the decretal dues of Rs. 952-10 nP. However, when he went to confiscate some of the moveables, the appellants arrived there with lathis and opposed him. P.W. 2 requested the Court to provide the required police assistance in a report (Ex. 4) filed to the Court through Nabaghan. Accordingly, on the same day, the Munsif sent the Superintendent of Police, Puri a letter (Ex. 2) asking him to order the Officer-in-Charge of the Sadar Police Station to provide the process server with urgent police assistance. P.W. 1, the Assistant Sub-Inspector, Sadar Police Station, Puri, was dispatched in response to this letter, along with two constables, including P.W. 3, Constable No. 613. They travelled to the village of Sanua to carry out the writ of attachment. P.W. 6—the Naib Sarpanch—and P.W. 8—the Chowkidar of the nearby village of Chhaitna—also went with them. When they arrived at the location, P.W. 2 was seated in front of Durga Charan Naik’s home, one of the judgement debtors. The A.S.I. then called out Fakir Charan Naik, the father of Durga Charan Naik, one of the judgment-debtors. Fakir Charan Naik opened the door and gave the process server, Sadhu Charan Mohanty, Rs. 952 .10, and received a receipt in return. After the money was exchanged, everyone departed the settlement, and at seven o’clock, as they were travelling across a local river in a boat, P.W. I spotted the appellant Durga Charan travelling with a group of ten to twelve people in the opposite direction. When P.W. I saw them, he saw problems and told P.W. 2 to give the money to P.W. 8, the chowkidar. A.S.I. was forcibly dragged by appellant Durga Charan after they all descended from the boat. The other appellants and a lot of other people gathered there. In case the A.S.1 did not return the money, Durga Charan threatened to physically harm him. In addition to having his pockets checked, Durga Charan also threatened the A.S.I. by threatening to stay until the money was returned. Netrananda MllSup.Cl/66-9 prevented P.W. I wrote a complaint to his police station by snatching his right hand. P.W. 2 was taken hostage by Bipra and Jugal, who then forced him to the edge of the river and demanded the money back. The appellants eventually fled the area after some others intervened. The following morning, P.W. I filed the initial information report at the police station, and after an investigation, the appellants were charged and brought before the Sessions Court.

LEGAL ISSUES 

Whether there was a formation of unlawful assembly with the common object of committing dacoity?

ARGUMENTS

First and foremost, Mr. Garg argued in support of this appeal that the High Court lacked authority to overturn the Additional Sessions Judge’s decision to acquit and that “it has not applied the correct principle in a matter of this description.” The contention that there was no evidence on which the High Court reached the conclusion that the appellants used criminal force against P.Ws. I and II was emphasised by learned counsel as she guided us through the decisions of the trial court and the High Court.The third argument made by the appellants is that their conviction under Section 353 of the Indian Penal Code is invalid because Section 195(1) of the Criminal Procedure Code, which calls for a written complaint from the process server or the A.S.I., was not followed. It was argued that the charge under section 353 of the Indian Penal Code is based on the same facts as the charge under section 186 of the same law and that the criminal offence under section 186 of the Indian Penal Code could not be recognised absent a written complaint as required by section 195(1) of the Criminal Procedure Code.The conviction of the appellants under S. 353, Indian Penal Code, by the High Court was claimed to have been legally void because, in the circumstances of this case, it amounted to a circumvention of the requirement of S. 195(1) of the Criminal Procedure Code.

JUDGMENT

Therefore, in the current instance, even if it is essentially founded on the same circumstances as the prosecution under Section 186 of the Indian Penal Code, we believe that S. 195 of the Criminal Procedure Code does not preclude the trial of the appellants for the specific offence under Section 353 of the Indian Penal Code.In this regard, the Federal Court’s ruling in Hori Ram Singh v. The Crown (2) may be brought up. In that case, the appellant was accused of violating sections 409 and 477-A of the Indian Penal Code. According to section 270(1) of the Constitution Act, the Governor’s prior approval was required before the offence under section 477-A could be taken cognizance, but it was not necessary for the establishment of proceedings under section 409 of the Indian Penal Code. The accusation was that the defendant, while acting in his official capacity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service, dishonestly diverted or converted certain drugs to his own use.He was additionally charged with failing to accurately record certain entries in a stock book of medications belonging to the hospital where he worked and being in his possession while doing so willfully and with the purpose to defraud. The Federal Court invalidated the proceedings under section 477-A for lack of jurisdiction because the Governor’s consent had not been obtained, but the matter was remanded to the sessions judge for a hearing on the merits of the charge under section 409 of the Indian Penal Code (1) [1953 F.C.R. 159].Given that two separate offenses—a misappropriation offence under Section 409 and an offence under Section 477-A requiring the approval of the Governor—were committed in the same transaction, the Federal Court did not view the fact that the latter offence could not have been prosecuted without the Governor’s approval as a barrier to the appellant’s ability to be tried for the former offence. While we have argued that section 195 of the Criminal Procedure Code does not prohibit the trial of an accused person for a separate offence revealed by the same or slightly different set of facts and not covered by the section, we must also emphasise that the provisions of S. 195 cannot be circumvented by using tricks or disguises.An offence that is basically covered by the requirements of s. 195 cannot be prosecuted simply by altering the title or garb of the offence; instead, the prosecution must prove that the offence actually occurred. Mr. Garg asserted on behalf of the appellants that s. 195 of the Criminal Procedure Code’s provisions were not followed in prosecuting the appellants under section 353 of the Indian Penal Code. However, we are confident that this argument lacks merit and that there is no evasion or disguising in the current instance.

REFERENCES 

https://www.scconline.com/Members/SearchResult.aspx

https://indiankanoon.org/doc/1749633/

This Article is written by Khushaal Shukla of vivekanada institute of professional studies, Intern at Legal Vidhiya

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