LexDURGACHARAN NAIK AND ORS. versus STATE OF ORISSA
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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/D1- ing offences under ss. 186 and 353, Indian Penal Cod..-Pro«cution for off•nce under .r. 353 without written complaUit of public urvant- Maintainabi/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 D 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 .. G H • . ·- .. • • ' ; • • -. B c D E F G H 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 im- prisonment. The decree-holders Panu Sahu and Naba Sahu levied execu- tion 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 movea- bles 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 de- cretal dues of Rs. 952·10 nP, and when he was going to seize some of the moveables, the appellants came there with lathis and resis- ted him. P.W. 2 sent a report-Ex. 4-to the Court through Naba- ghan requesting the Court to give necessary police help. Accor- dingly 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 Sub- Inspector, 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 vil- lage 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 o
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