minal 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 section C Agarwala M K Ramamurthy and D P Singh for the appellants
H R Khanna and R N Sachthey for the respondent
 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 section 353 of the Indian Penal Code and sentenced them to 4 months  rigorous imprisonment
The decree holders Panu Sahu and Naha Sahu levied execution of the decree exhibit Case No 12562 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 PW 2 Sadhu Charan Mohanty a peon of the Civil Court Puri returnable by August 10 1962
PW 2 reached the village of the judgment debtors on August 10 1962 at 10 am 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
PW 2 sent a report exhibit
4 to the Court through Nabaghan requesting the Court to give necessary police help
Accor dingly on the same day the Munsif wrote a letter exhibit 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 PW 1 the Assistant Sub
Inspector Sadar Police Station Puri was deputed along with two constables including PW 3 Constable No 613
They went to the village Sanua where the writ of attachment was to be executed  PW 6 the Naib Sarpanch and PW 8 the Chowkidar of the village Chhaitna also accompanied them
On reaching the spot they found PW 2 sitting in front of the house of Durga Charan Naik One of the judgment debtors
The ASI 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 pm while they were crossing a river nearby in a boat PW I saw the appellant Durga Charan with 10 or 12 persons coming from the opposite direction
On seeing them PW I apprehended some trouble and directed PW 2 to hand over the money to the chowkidar PW 8
When all of them got down from the boat appellant Durga Charan forcibly dragged the ASI A number of other persons including the other appellants assembled at the spot
Durga Charan threatened to assault the AS1 if he did not return the money
Durga Charan also searched hi pockets and Netrananda threatened the ASI by saying that he would not leave the place until the money was returned
When PW I wanted to write a report to his police station Netrananda MllSup
Cl66 9 638 obstructed him by holding his right hand
Bipra and Jugal caught hold of the hands of PW 2 and took him to the river bank and demanded return of the money
Then at the intervention of some outsiders the appellants left the spot
PW I lodged the first information report at the police station next morning and after investigation the appellants were charge sheeted and committed to the court of Sessions
The appellants were charged under sections 143402 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 section 186 Indian Penal Code for having voluntarily obstructed PWs I and 2 in the discharge of their public duty
Durga Charan and Netrananda were also charged under section 353 Indian Penal Code for having used criminal force against PW I and Bipra Charan and Jugal were similarly charged under section 353 Indian Penal Code for having used criminal force against PW 2 while both of them were dis charging 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 Orissa High Court which set aside the order of acquittal with regard to the 4 appellants and convicted them under section 353 Indian Penal Code
The High Court however held that there was no satisfactory evidence to convict the appellants under sections 143402 Indian Penal Code
As regards the charge under section 186 Indian Penal Code the High Court expressed the view that the prosecution was barred under the provisions of section 195 Criminal Procedure Code
In support 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 Sessions 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 PWs I and 2
We are unable to accept the argument of Mr Garg as correct
The High Court has mainly relied upon the evidence of PWs 1 2 and 3 and PWs 9 to 13 for holding that the appellants used criminal force against PWs I and 2
The High Court has also observed that PW 2 was entrusted with the execution of the writ of attachment
He was also entrusted with the official cheque book exhibit 5 to give the receipt in token of payment of the decretal dues
In the course of his official business PW 2 was carrying the money realised from the judgment debtors for necessary deposit in Court
So far as PW I was concerned he was deputed to render assistance to PW 2 in executing the writ of attachment
It is manifest that both PWs
I and 2 were assaulted by the appellants when they 639 were discharging their duties as public servants
The High Court has also accepted the evidence of PW I that Durga Charan caught hold of his hands and demanded money on the threat of assault
PW 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
PW 2 added that Bipra and Jugal also snatched away his bag
The High Court analysed the evidence of PWs 9 to 13 and reached the conclusion that the appellants used criminal force against PWs I and 2 in the course of the performance of their duties
The High Court has also dealt with the reasoning of the trial court and has pointed out that the order of acquittal of the appellants with regard to section 353 Indian Penal Code was not justified
In Sanwat Singh  Others vs State of Rajasthan1 it was pointed out by this Court that an appellate court has full power to review the evidence upon 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 approach to a case disposing of such an appeal
It was further observed that different phraseology used 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 vs State of Maharashtra 3
It was pointed out in that case that there is no doubt that the power conferred by cl
a of section 4231 which deals with an appeal against an order of acquittal is as wide as the power conferred by el
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 whether the appeal 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 which 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 those authorities we are satisfied that the High Court was justified in the present case in interfering with the order of acquittal passed by 1  2 61 IA 398
3  640 the Additional Sessions Judge with regard to the charge under section 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 section 353 Indian Penal Code is illegal because there is a contravention of s1951 of the Criminal Procedure Code which requires a complaint in writing by the process server or the ASI
It was submitted that the charge under section 353 Indian Penal Code is based upon the same facts as the charge under section 186 Indian Penal Code and no cognizance could be taken of the offence under section 186 Indian Penal Code unless there was a complaint in writing as required by section 1951 of the Criminal Procedure Code
It was argued that the conviction under section 353 Indian Penal Code is tantamount in the circumstances of this case to a circumvention of the requirement of section 1951 of the Criminal Procedure Code and the conviction of the appellants under section 353 Indian Penal Code by the High Court was therefore vitiated in law
We are unable to accept this argument as correct
It is true that most of the allegations in this case upon which the charge under section 353 Indian Penal Code is based are the same as those constituting the charge under section 186 Indian Penal Code but it cannot be ignored that sections 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 are 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 section 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 section 353 occurs in Ch
XVI regarding the offences affecting the human body
It is well established that section 195 of the Criminal Procedure Code does 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 vs Ram Dayal De1 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 section 21 1 Indian Penal Code which is an offence against public justice and the other an offence under section 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 1 641 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 section 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 only which do not require sanction because to hold otherwise would amount to legislating and adding very materially to the provisions of sections 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 vs 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 section 195 Criminal Procedure Code from seeking redress for the offence committed against him
In the present case therefore we are of the opinion that section 195 Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under section 353 of the Indian Penal Code though it is practically based on the same facts as for the prosecution under section 186 Indian Penal Code
Reference may be made in this connection to the decision of the Federal Court in Hori Ram Singh vs The Crown 2
The appellant in that case was charged with offences under sections 409 and 477 A Indian Penal Code
The offence under section 477 A could not be taken cognizance of without the previous consent of the Governor under section 2701 of the Constitution Act while the consent of the Governor was not required for the institution of the proceedings under section 409 Indian 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 section 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 section 409 Indian Penal 1 2 642 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 section 409 and the other an offence under section 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 section 409
We have expressed the view that section 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 section 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 in section 195 Criminal Procedure Code
Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of section 195 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 section 353 Indian Penal Code was by way of evasion of the requirements of section 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


Summary:
The appellants were charged with offences under section 143402 186 and 353 Indian Penal Code for having obstructed and assaulted two public servant in the discharge of their public duty of executing the decree of a Civil Court
They were acquitted by the trial Court but on appeal the High Court convicted them under section 353 acquitted them under sections 143402 and held that the prosecution under section 186 was barred by a 195 Criminal Procedure Code which requires a complaint in writing by the public servant before a court could take cognizance of the offence
In appeal to this Court it was contended that the prosecution under section 353 Indian Penal Code was also barred by section 195 Criminal Procedure Code
HELD  Sections 186 and 353 Indian Penal Code relate to two distinct offences and section 353 is not referred to in section 195 Cr
PC Section 195 Criminal Procedure Code does 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 when there is no camouflage or evasion to circumvent the Section
Therefore the trial of the appellants for the distinct offence under section 353 was not barred though it was based practically on the same facts as for the prosecution under section 186 and the High Court was justified on the evidence in interfering with the order of acquittal passed by the trial Court in regard to that charge
640 E G 641 E Sanwat Singh vs State of Rajasthan  and Agarwal and Kulkarni vs State of Maharashtra   followed
Basir ul Huk V State of West Bengal  and Hori Ram Singh vs The Crown  referred to