Supreme Court: Section 195 of CRPC Bar Cannot Be Evaded by Splitting Offences

In this regard, the Court laid down the following principles to be followed while dealing with a category of offences that fall within the protective sphere of Section 195 CrPC.

(i) Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking cognizance of any offence punishable under Sections 172 to 188 respectively of the I.P.C., unless there is a written complaint by the public servant concerned or his administrative superior, for voluntarily obstructing the public servant from discharge of his public functions. Without a complaint from the said persons, the court would lack competence to take cognizance in certain types of offences enumerated therein.

(ii) If in truth and substance, an offence falls in the category of Section 195(1)(a)(i), it is not open to the court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences disclosed in the same set of facts. However, it also cannot be laid down as a straitjacket formula that the Court, under all circumstances, cannot undertake the exercise of splitting up. It would depend upon the facts of each case, the nature of allegations and the materials on record.

(iii) Severance of distinct offences is not permissible when it would effectively circumvent the protection afforded by Section 195(1)(a)(i) of the Cr.P.C., which requires a complaint by a public servant for certain offences against public justice. This means that if the core of the offence falls under the purview of Section 195(1)(a)(i), it cannot be prosecuted by simply filing a general complaint for a different, but related, offence. The focus should be on whether the facts, in substance, constitute an offence requiring a public servant's complaint.

(iv) In the aforesaid context, the courts must apply twin tests. First, the courts must ascertain having regard to the nature of the allegations made in the complaint/FIR and other materials on record whether the other distinct offences not covered by Section 195(1)(a)(i) have been invoked only with a view to evade the mandatory bar of Section 195 of the I.P.C. and secondly, whether the facts primarily and essentially disclose an offence for which a complaint of the court or a public servant is required.

(v) Where an accused is alleged to have committed some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein. However, the courts should ascertain whether such offences form an integral part and are so intrinsically connected so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Cr.P.C. This would all depend on the facts of each case.

(vi) Sections 195(1)(b)(i)(ii) & (iii) and 340 of the Cr.P.C. respectively do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation, provided the procedure laid down in Section 340 of the Cr.P.C. is followed.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Criminal) No. 12373 of 2025 

Decided On: 20.08.2025

Devendra Kumar Vs. The State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

 Citation: 2025 INSC 1009, MANU/SC/1133/2025.

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Fraud at the Courthouse Door: When Can Civil Courts Use Section 151 CPC to Set the Criminal Law in Motion?

 Why this question matters

Civil judges increasingly encounter forged documents, fabricated seals, and engineered “fraud on the court” designed to siphon public money or manipulate rights. The immediate civil response is clear: refuse or recall relief obtained by fraud. But a connected and difficult question is: can the civil court itself trigger criminal prosecution, and if so, when and how, under Section 151 CPC?

Supreme Court and High Court jurisprudence now fairly clearly recognises that inherent powers under Section 151 can be used to protect the integrity of judicial proceedings—including by undoing orders obtained by fraud and, in appropriate cases, by directing that serious independent forgeries be reported to the police. This operates alongside, and not in derogation of, the special mechanism for “offences against public justice” under Section 195/340 CrPC, now Section 215/379 BNSS.

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Delhi HC: Invoking perjury jurisdiction at the interlocutory stage, with trial already underway and issues framed, would risk interfering with and prejudicing the main civil proceedings

 In my opinion, an application under section 340 of the cr.pc ought to be normally considered at the time of final decision of the case only and not at the interim stage as the defendants/applicant have pressed in the present case. It is the settled legal position that the said provision cannot be resorted to, to satisfy a private grudge of the litigant. In fact the very genesis of this provision is to prevent complaints being filed of offences having being committed in relation to the court proceedings; it was felt that if such complaints are permitted to be filed, the same may be used to force the other party into giving up its claim/defence or to dissuade witnesses from appearing before the courts under threat of criminal prosecution. It was held as far back as in Rewashankar Moolchand v. Emperor MANU/NA/0017/1939 : AIR 1940 Nagpur 72 that proceedings under Section 340Cr.PC should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the civil court before which the matter would probably go on for longer. This court also in Jindal Polyster Ltd. v. Rahul Jaura MANU/DE/2772/2005 : 124 (2005) DLT 613 and in Kuldeep Kapoor v. Susanta Sengupta MANU/DE/2870/2005 : 126 (2006) DLT 149 has held that applications under section 340 of the Cr.pc should be dealt with at the final stage only and not at the interim stage. I also find a consistency of view in this regard in the other High Courts. The law is that a prosecution for perjury should not be ordered by the court before the close of the proceedings in the case in which false evidence is given. It is highly wrong for a court to take action under the said provision against a witness or a party for giving false evidence when trial is underway. {Para 18}

21. Formation of prima facie opinion that a person charged has intentionally given false evidence is a condition precedent for directing lodging of a complaint. The existence of mens rea or criminal intention behind act complained of will have to be looked into and considered before any action under section 340 of the cr.pc is recommended. Before setting the criminal law into motion, the court should exercise great care and caution and it must be satisfied that there is reasonable foundation for the charge in respect of which prosecution is directed. No prosecution ought to be ordered unless reasonable probability of conviction is found. Considering the nature of the documents and evidence in relation whereto offences are alleged to have been committed.

"6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as "IPC"); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1)CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. 

17. The law governing the initiation of criminal proceedings under Section 379 read with Section 215 of the BNSS, for offences under Sections 227, 229, 236, 237, and 246 of the BNS, provides that for a statement to constitute 'false evidence' under Section 227 BNS, the falsity must be clear, deliberate, and established through unimpeachable evidence. Mere inconsistencies in versions or bare denials do not meet this threshold. The Written Statement reflects Defendant No. 2's explanation that he had purchased the alleged pirated version of ISP under a bona fide belief of its genuineness, a contention the veracity of which can only be determined upon leading of evidence.

23. Before filing of the complaint under Section 379 read with Section 215 of the BNSS, the Court along with a clear and deliberate falsehood supported by an unimpeachable evidence has to record a finding to the effect that it is expedient in the interests of justice having regard to the effect or impact, such commission of offence has upon administration of justice. 

IN THE HIGH COURT OF DELHI

CS (COMM) 914/2023

Decided On: 24.11.2025

Koninklijke Philips N.V. and Ors. Vs. Karma Mindtech and Ors.

Hon'ble Judges/Coram:

Tejas Karia, J.

Citation: 2025 DHC 10345, MANU/DE/9185/2025.

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Bombay HC: The Magistrate and Sessions court must see before issuing process against accused whether investigating officer has obtained sanction as per S. 195, 196, 197, 198 of CRPC if it is required

 We are disturbed to note that Judges from the District Judiciary are not paying attention to the requirements under Sections 195, 196, 197, 198 of the Code of Criminal Procedure. The embargo created under these provisions should be considered by them before taking cognizance. In succession in recent times we are coming across such orders which have been passed without considering these provisions under the Code of Criminal Procedure. If these basic provisions are not adhered to, then it is prejudicial to the accused persons as they would be unnecessarily asked to face the trial when there was defect or illegality in passing of the order of taking cognizance of the offence itself. Therefore, we want to put the Judges of the

District Judiciary on guard and direct them that they should consider these provisions whenever they are necessary and pass detailed orders in respect of the same. {Para 11}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

901 CRIMINAL APPLICATION NO.2375 OF 2019

Dnyaneshwar Rohidas Wakale, Vs   The State of Maharashtra

CORAM : SMT. VIBHA KANKANWADI &

S.G. CHAPALGAONKAR, JJ.

DATE : 19th SEPTEMBER, 2024

Citation: 2024:BHC-AUG:22690-DB

ORDER : (PER : SMT. VIBHA KANKANWADI, J.).

Read full Judgment here: Click here.

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Whether police can file a chargesheet against the accused for an offence U/S 188 of IPC?

 Hence, on going through the provisions of Section 195 of the Cr.P.C., as also in the light of the ratio laid down by the Supreme Court in the decisions noted above, one can safely hold that there is a statutory bar to the court for taking cognizance unless a private complaint in writing is made by a public servant whose lawful order has not been complied with. As per ratio laid down by the Supreme Court, there is an absolute bar to the court for taking cognizance of a case registered under Section 188 of the Indian Penal Code except in the manner provided under Section 195 of the Cr.P.C.

27. Thus, I am of the considered opinion that the registration of the case by the police for the offence under Section 188 of the IPC was illegal and on the basis of such FIR, the investigation conducted by the police and the charge-sheet filed before the court was wholly illegal and without jurisdiction. Once, it is held that registration of FIR under Section 188 of the IPC was not permissible in law, the registration of FIR for other offences, which are non-cognizable and investigation of the same without the permission of Jurisdictional Magistrate was not permissible in view of the express bar created under sub-section (2) of section 155 of the Cr. P.C.

Patna High Court

Prakash Jha vs The State Of Bihar & Ors on 31 July, 2017

   CORAM:  MR. JUSTICE ASHWANI KUMAR SINGH

Read full Judgment here: Click here

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Whether private complaint is barred as per S 195 of CRPC if a party has filed the forged documents in the court proceeding?

 In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.

26. In the present case, the will has been produced in the Court subsequently. It is nobody's case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 402 of 2005 

Decided On: 11.03.2005

Iqbal Singh Marwah  Vs Meenakshi Marwah 

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Whether court can convict accused of an offence U/S 353 of IPC on same facts if prosecution of accused U/S 186 of IPC is barred by S 195 of CRPC?

In Satis Chandra Chakravarti v. Ram Dayal De MANU/WB/0191/1920 : 24 C.W.N. 982 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 s. 211, Indian Penal Code, which is an offence against public justice, and the other an offence under s. 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 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 s. 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 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 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 v. The State of West Bengal MANU/SC/0028/1953 : 1953CriLJ1232 in which it was held that if that 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 s. 195, Criminal Procedure Code, from seeking redress for the offence committed against him.

6. In the present case, therefore, we are of the opinion that s. 195, Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under s. 353 of the Indian Penal Code, though it is practically based on the same facts as for the prosecution under s. 186, Indian Penal Code.
 We have expressed the view that s. 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 s. 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 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 s. 195, Criminal Procedure Code. 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. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellant under s. 353, Indian Penal Code was by way of evasion of the requirements of s. 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 67 of 1964

Decided On: 23.02.1966

Durgacharan Naik  Vs.  State of Orissa

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Supreme Court: Distinction between offence U/S 353 of IPC and S 186 of IPC

It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 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 s. 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 s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 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 THE SUPREME COURT OF INDIA

Criminal Appeal No. 67 of 1964

Decided On: 23.02.1966

Durgacharan Naik  Vs.  State of Orissa

Hon'ble Judges/Coram:

K. Subba Rao and Vaidynathier Ramaswami, JJ.

Citations: 1966 AIR 1775, 1966 SCR (3) 636, MANU/SC/0078/1966

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Supreme Court: Procedure to be followed by the court if there is a bar for cognizance of offence as per S 195 of CRPC in respect of crime investigated by police

The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj SinghMANU/SC/0038/1998 : 1998CriLJ1104 . In this case it has been that as follows:

"2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467, and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed to, or in relation to, any proceedings in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is or course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filling a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC.

 Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1197 of 2003

Decided On: 19.09.2003

M. Narayandas  Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

S.N. Variava and H.K. Sema, JJ.

Citation: (2003) 11 SCC 251

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Whether magistrate can take cognizance of offence punishable U/S 188 of IPC on the basis of FIR lodged by police officer?

In view of the aforesaid legal provisions contemplated under section 195 of Cr.P.C., it can be said that no Court shall take cognizance of any offence punishable under sections 172 to 188 of the IPC, except on the complaint in writing of the public servant concerned, or some other public servant, to whom he is administratively subordinate.

8. The word, "complaint" referred in the above mentioned provision of Section 195 of the Cr.P.C., denotes, "complaint in writing to a magistrate" and "not a police report". 

On conjoin reading of the provision of Section 188 of IPC and Section 195 of Cr.P.C., it is evident that if the alleged offence is punishable under Sections 172 to 188 of IPC, the court cannot take cognizance except on a complaint in writing of the public servant concerned, or some other public servant, to whom he is administratively subordinate. In such peculiar circumstances, no FIR could have been registered by the police for an offence punishable under Section 188 of IPC. The legislative intention appears to be clear from the language of section 195(1) of Cr.P.C. itself, which categorically prescribes that where an offence is committed under Section 188 of IPC, it would be obligatory for the public servant before whom such offence is committed, to file a complaint before the concerned Magistrate having jurisdiction to take cognizance of it. Therefore, in view of the aforesaid principles of law, the FIR given by the police personnel in the police station, cannot be termed as a "complaint" given to the Magistrate in writing.

9. In the instant case, police personnel Shri Bhumkar directly filed the FIR alleging commission of offence under Section 188 of IPC, for disobedience of the order of District Magistrate by the applicant. The Apex Court in the case of "C. Muniappan and others vs. State of Tamil Nadu" reported in MANU/SC/0655/2010 : (2010) 9 SCC 567 : [2010 ALL SCR 2611], in para. 28, observed as follows:-

"28. Section 195(1)(a)(i) CrPC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 CrPC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. 

 In view of the aforesaid specific provisions of law, we are of the considered opinion, that there must be a complaint in writing to the Magistrate, given by the public servant concerned, whose lawful order has not been complied with, as contemplated under Section 195 of Cr.P.C. It is the mandate of the provisions of section 195 and non compliance of it would vitiate the prosecution and all consequential actions.

12. In the above premises, the present application deserves to be allowed and in view of the specific bar contained under Section 195(1) of the Code, the impugned FIR is nothing but an abuse of process of law. It would dissipate the precious time of the Court and no fruitful purpose would be sub-served, for continuation of the proceedings initiated on the basis of FIR of police personnel filed without any authority. Therefore, we have no hesitation to allow the application by exercising powers under Section 482 of the Cr.P.C.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 6265 of 2016

Decided On: 23.02.2017

Shrinath Gangadhar Giram Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.S. Shinde and K.K. Sonawane, JJ.

Citation: 2018 ALLMR (CRI)325

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Whether Prosecution For Offence U/S 182 IPC can be started Without Formal Complaint By Public Servant?

 As rightly pointed out by the learned counsel for
the parties on the strength of law laid down by this
Court in the case of Daulat Ram vs. State of Punjab,
(AIR 1962 SC 1206) that in order to prosecute an
accused for an offence punishable under Section 182
IPC, it is mandatory to follow the procedure prescribed
under Section 195 of the Code else such action is
rendered void ab initio.
11) It is apposite to reproduce the law laid down by
this Court in the case of Daulat Ram (supra) which
reads as under:
“There is an absolute bar against the Court
taking seisin of the case under S.182 I.P.C.
except in the manner provided by S.195
Crl.P.C.
Section 182 does not require that
action must always be taken if the person
who moves the public servant knows or

believes that action would be taken. The
offence under S.182 is complete when a
person moves the public servant for action.
Where a person reports to a Tehsildar to take
action on averment of certain facts, believing
that the Tehsildar would take some action
upon it, and the facts alleged in the report
are found to be false, it is incumbent, if the
prosecution is to be launched, that the
complaint in writing should be made by the
Tehsildar, as the public servant concerned
under S.182, and not leave it to the police to
put a charge-sheet. The complaint must be
in writing by the public servant concerned.
The trial under S.182 without the Tehsildar’s
complaint in writing is, therefore, without
 jurisdiction ab initio.” (Emphasis supplied)
12) It is not in dispute that in this case, the
prosecution while initiating the action against the
appellant did not take recourse to the procedure
prescribed under Section 195 of the Code. It is for this
reason, in our considered opinion, the action taken by
the prosecution against the appellant insofar as it
relates to the offence under Section 182 IPC is
concerned, is rendered void ab initio being against the
law laid down in the case of Daulat Ram (supra)
quoted above.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.64 of 2017
(Arising out of S.L.P.(Crl.)No. 8184 of 2015)
Saloni Arora 
V
State of NCT of Delhi 
Dated:January 10, 2017

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Essential conditions for initiation of prosecution for contempt of lawful authority of public servant

 Their Lordships of Hon'ble Supreme Court in the case of C.

Muniappan and others v. State of Tamilnadu, reported in (2010) 9 SCC

567 have held that the legislative intent behind Section 195 (1) (a) (i)

Cr.P.C. read with section 188 is that an individual should not face criminal

prosecution instituted upon insufficient grounds by persons actuated by

malice, ill will or frivolity of disposition and to save the time of the criminal

courts being wasted by endless prosecutions. There must be a complaint

by the public servant whose lawful order has not been complied with. The

complaint must be in writing. The provisions of Section 195 Cr.PC are

mandatory. The Court cannot assume the cognizance of the case without

such complaint. In the absence of such a complaint, the trial and

conviction will be void ab initio being without jurisdiction. Their lordships

have held as under:

“33. Thus, in view of the above, the law can be summarized

to the effect that there must be a complaint by the public

servant whose lawful order has not been complied with. The

complaint must be in writing. The provisions of Section 195

Cr.PC are mandatory. Non-compliance of it would vitiate the

prosecution and all other consequential orders. The Court

cannot assume the cognizance of the case without such

complaint. In the absence of such a complaint, the trial and

conviction will be void ab initio being without jurisdiction.”

37. The complaint filed under the signatures of SHO, PS

Dharamshala cannot be termed as complaint under Section 195 (1) (a)

Cr.P.C. The complaint could only be filed by the officer concerned.

38. Now, the Court will advert to whether there was sufficient

material to proceed against the accused for committing offence under

Section 186 IPC. In the complaint based on DDR Nos. 12(A) & 15(A), it is

stated that Insp. Jagdish Chand and other staff members were present in

Police Station (SV & ACB), Dharamshala and the accused initially entered

the Police Station and thereafter went to the Office of Superintendent of

Police (SV & ACB). They disrupted the government administration for half

an hour. It is not stated that what duties were being discharged by those

police officers/officials present in the Police Station and which one of them

was obstructed voluntarily from discharging official functions. In order to

attract the provisions of Section 186 IPC, it has to be seen whether the

public servant in the discharge of his public functions has been voluntarily

obstructed or not. It is reiterated that what mentioned in the complaint is

that the government administration was disrupted for half an hour. Merely

the disruption of government administration without mentioning that the

public servants were obstructed voluntarily from discharge of their public

functions would not attract Section 186 IPC.

39. The learned Single Judge of the Patna High Court in the case

of Janki Prasad Tibrewal and others v. The State of Bihar, reported in

1975 Crl. LJ 575 has held that the expression 'obstruct' used in Section

186 of the Indian Penal Code envisages actual resistance and obstacle in

the way of public servant and it implies use of criminal force. It has been

held as under:

“[7] Considering these decisions it is clear that the real test is

whether the facts alleged against an accused disclosed two

distinct offences or whether the facts disclosed primarily an

offence for which a complaint by a public servant is required,

The main allegation which has been made in this case against

the petitioners is that they voluntarily obstructed the Dalpati

and the Mukhia who are public servants in the discharge of

their duties as such. The expression 'obstruct' used in Section

186 of the Indian Penal Code envisages actual resistance and

obstacle in the way of public servant and it implies use of

criminal force. So if these petitioners are alleged to have

assaulted the Dalpati and the Mukhia in the course of

voluntarily obstructing the public servant from discharging

their duties, the offences under Sections 323, 324 and 353 of

the Indian Penal Code are so connected with the primary

offence of Section 186 of the Indian Penal Code that it is

difficult to say that those offences constituted separate

offences other than an offence under Section 186 of the Indian

Penal Code. The very fact of obstruction in the instant case

implies assault and hurt to the public servant concerned and

so the primary offence alleged to have been committed by these

petitioners is one under Section 186 of the Indian Penal Code

and if cognizance is taken of the offences on the basis of police

report only under Sections 323, 324 and 353 of the Indian

Penal Code, it will amount to circumventing the provisions of

Section 195 of the Code which is not permissible in law.”

40. What emerges from the discussion is that Section 195 (1)(a) of

Cr.P.C. has not been complied with. Section 195 Cr.P.C. is mandatory.

The power to file the complaint could not be delegated to SHO, Police

Station, Dharamshala. The complaint should have been initiated at the

instance of the public servant concerned or his superior officer. Thus, in

view of the matter, the learned Chief Judicial Magistrate, Dharamshala had

no jurisdiction in the case as there was no complaint in writing before him

by the public servant concerned or his superior. The material placed on

record was not sufficient to initially permit the investigation of the case and

thereafter to summon the accused and put them to notice of accusation.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 35 of 2016.

 Decided on: 30.5.2016.

Anurag Thakur and another 

Versus

State of H.P. 

Coram

The Hon’ble Mr. Justice Rajiv Sharma, 

Citation:2016 CRLJ 3363 HP

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Whether arbitrator appointed by Registrar of co-operative society is court?

The nominee exercising power to make an award under s. 96 of the Maharashtra Cooperative Societies Act, 1960, derives his authority not from the statute but from investment by the Registrar in his individual discretion. The power invested is liable to be suspended and may be withdrawn. He is not entrusted the judicial power of the State : he is merely an arbitrator authorised within the limits of the power conferred to 'adjudicate upon the dispute referred to him. He is -not a court within the meaning of s. 195 of the Code of Criminal Pro-cedure code

Supreme Court of India

Ramarao & Anr vs Narayan & Anr on 20 December, 1968

Equivalent citations: 1969 AIR 724, 1969 SCR (3) 185

Bench: Shah, J.C.

 The Judgment of the Court was delivered by Shah, J. The Nagpur District Land Development Bank Ltd. is registered as a society under the Maharashtra Co-oPerative Societies Act, 1960. 'One Narayan Tanbaji Murkute applied for membership of the Bank -as a "non-borrowing member". At a meeting of the Bank held on June 30, 1964, the application of Murkute and of 94 others were granted and they were enrolled as members. But in the list of members entitled to take part in the General Meeting dated June 30, 1964 the names of Murkute and others were not included. Murkute and others then applied to the Registrar Co- operative Societies for an order declaring that they were entitled to participate in the election of office-bearers and for an injunction restraining the President and the Secretary from holding the annual General Meeting. The Registrar referred the dispute for adjudication under s. 93 of the Maharashtra Co-operative Societies Act, 1960, to H. V. Kulkarni, his nominee. The nominee decided the dispute on May 7, 1965 and held that Murkute and other applicants were members of the Bank. In the proceeding before the nominee certain documents including the minutes book of the Bank were produced. It is claimed by Murkute that those 'books were fabricated by the President and the Secretary with a view to make it appear that Murkute and other persons were never elected members of the Bank.

On August 7, 1965, Murkute filed a complaint in the Court of the Judicial Magistrate, First Class, Nagpur, charging the President and Secretary of the Bank with committing offences under ss. 465 and 471 I.P. Code. It was alleged in the complaint that the two accused had dishonestly and fraudulently introduced a clause in Resolution No. 3 appearing in the minutes book with the intention of causing it to be believed that the clause was part of the original. Resolution passed by the Board of Directors in the meeting held on June 30, 1964, whereas it was known to them that at that meeting no such clause was passed.

The two accused raised an objection that the Magistrate had no jurisdiction to take cognizance of the complaint without the previous sanction of the Registrar of Co-operative Societies under s. 148(3) of the Maharashtra Co-operative Societies Act, 1960. The Trial Magistrate rejected the contention. The order was confirmed by the Court of Session and the High Court of Bombay.

In this Court counsel for the accused raised two contentions that- (1) that, the nominee of the Registrar appointed under s. 95 of the Maharashtra Co-operative Societies Act, 1960, was a "court" within the meaning of s. 195 Code of Criminal Procedure, and a complaint for offences under ss. 465 and 471 I.P. Code alleged to have been committed by a party to any proceeding in respect of a document produced or given in evidence in such proceeding, cannot be entertained except on a complaint in writing of such court, or of a court to which it is subordinate; and (2) that offences charged in the complaint fell within the description of the offence under s. 146(p) of the Maharashtra Co-operative Societies Act, 1960, and without the sanction of the Registrar the complaint was not maintainable.

Section 195 Code of Criminal Procedure insofar as it is relevant provides :

"(1) No Court shall take cognizance(a)

(a)

(b)

(c) of any offence described in section 463 or punishable under section 471 . . . when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such court, or of some other Court to which such Court is subordinate.

(2) In clauses (b) and (c) of sub-section '(1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877."

Murkute complained that the President and the Secretary of the Bank who were parties to the proceeding before the nominee of the Registrar had committed offences under ss. 465 & 471 I.P. Code in respect of documents produced or given in evidence at the trial. If the Registrar's nominee is a Court within the meaning of s. 195 Code of Criminal Procedure the Magistrate could not take cognizance except on the complaint in writing by the Registrar's nominee or of some court to which he was subordinate. To determine whether the Registrar's nominee is a court, it is necessary to refer to the relevant provisions of the Maharashtra Co- operative Societies Act, 1960, relating to the functions of the nominee and the powers with which he is invested, counsel for the appellants urges that by the Maharashtra Co- operative Societies Act the power of the Civil Court to entertain disputes with regard to certain matters concerning cooperative societies is expressly excluded from the jurisdiction of the Civil Court, and the Registrar or his nominee is alone competent to determine those questions; thereby the Registrar and his nominee are invested with the judicial power of the State and they are on that account "courts" within the meaning of s. 195 of the Code of Criminal Procedure.

Section 2(2) of the Maharashtra Co-operative Societies Act, 1960, defines "arbitrator" as meaning "a person appointed under this Act to decide disputes referred to him by the Registrar and includes the Registrar's nominee or board of nominees." Section 91 and the following sections which occur in Ch. IX relate to disputes and arbitration. By s. 91, insofar as it is material, it is provided :

"(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, election of the office bearers, conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute........... to the Registrar, if both the parties hereto are one or other of the following

(a)

(b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society.

(c)

(d)

(e) (2) When any question arises whether for the purpose of the foregoing subsections matter referred to, for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final. (3) Save as otherwise provided under sub- section (3) of section 93 no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1)." Section 93provides :

"(1) If the Registrar is satisfied that any matter referred to him or brought to his notice is a dispute within the meaning of section 91, the Registrar shall, subject to the rules, decide the dispute himself, or refer it for disposal to a nominee, or a board of nominees, appointed by the Registrar. (2) Where any dispute is referred under the foregoing sub-section, for decision to the Registrar's nominee or board of nominees, the Registrar may at any time, for reasons to be recorded in writing withdraw such dispute from his nominee or board of nominees, and may decide the dispute himself, or refer it again for decision to any other nominee, or board of nominees, appointed by him.

(3) Notwithstanding anything contained in section 91 the Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated questions of law and fact, until the question has been tried by a regular suit instituted by one of the parties or by the society. If any such suit is not instituted within two months from the Registrar's order suspending proceedings, the Registrar shall take action as is provided in subsection Section 94 provides for the procedure of settlement of disputes and power of the Registrar, his nominee or the board of nominees. It provides, insofar as it is material :

"(1) The Registrar, or his nominee or board of nominees, hearing a dispute under the last preceding section shall hear the dispute in the manner prescribed, and shall have power to summon and enforce attendance of witnesses including the parties interested or any of them and to compel them to give evidence on oath, affirmation or affidavit and to compel the production of documents by the same means and as far as possible in the same manner, as is provided in the case of a Civil Court by the Codeof Civil Procedure, -1908. (2) Except with the permission of the Registrar or his nominee or board of nominees, as the case may be, no party shall be represented at the hearing of a dispute by a legal practitioner."

Sub-section (3) of S. 94 authorises the Registrar, his nominee or the board of nominees to join or substitute new parties. Section 95 authorises the Registrar or his nominee or board of nominees to pass an order of attachment and other interlocutory orders. Section 96 provides "When a dispute is referred to arbitration the Registrar or his nominee or board of nominees may, after giving a reasonable opportunity to the parties to the dispute to be heard, make an award on the dispute, on the expenses incurred by the parties to the dispute in connection with the proceedings, and fees and expenses payable to the Registrar or his nominee or, as the case may be, board of nominees. Such an award shall not be invalid merely on the ground that it was made after the expiry of the period fixed for deciding the dispute by the Registrar and shall, subject to appeal or review of revision, be binding on the parties to the dispute."

Section 97 provides "Any party aggrieved by any decision of the Registrar or his nominee or board of nominees under the last preceding section, or an order passed under section 95may,............... appeal to the Tribunal.

Section 98 provides that every order passed by the Registrar or his nominee or board of nominees or in appeal therefrom shall, it -not carried out, on a certificate signed by the Registrar, be deemed to be a decree of a civil court, and shall be executed in the same manner as a decree of such court or be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue. By s. 99 a private transfer or delivery of, or encumbrance or charge on, property made or created after the issue of the certificate of the Registrar under s. 98 shall be null -and void as against the society on whose application the certificate was issued.

Jurisdiction of the Civil Court by s. 91(3) to entertain a suit in respect of any dispute referred to in sub-s. (1) of s. 91 is expressly excluded and the dispute is required by law to be referred to the Registrar or his nominee. Against the decision of the Registrar's nominee an appeal lies under s. 97 and the order made for payment of money is enforceable as a decree of the Civil Court. The Registrar or his nominee called upon to decide the dispute are bound to hear it in the manner prescribed and they have power to summon and enforce attendance of witnesses and to compel them to give evidence on oath, affirmation or affidavit and to compel production of documents. The effect of these provisions, according to counsel for the Appellants, is that the judicial power of the State to deal with -and dispose of disputes of a civil nature which fall within the description of s. 91(1) is vested in the Registrar's nominee and he is on that account made a "court" within the normal connotation of the term.

Section 195(2) of the Code of Criminal Procedure enacts that the term "court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877. The expression "court" is not restricted to courts, Civil, Revenue or Criminal; it includes other tribunals. The expression "court" is not defined in the Code of Criminal Procedure. Under s. 3 of the Indian Evidence Act "Court" is defined as including "all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence". But this definition is devised for the purpose of the Evidence Act and will riot necessarily apply to the Code of Criminal Procedure. The expression "Court of Justice" is defined in the Indian Penal Code by s. 20 as denoting "a Judge who is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially". That again is not a definition of the expression "Court" as used in the Code of Criminal Procedure. The expression "Court" in ordinary parlance is a generic expression and in the context in which it occurs may mean a "body or organization" invested with power, authority or dignity. In Halsbury's Laws of England, 3rd Edn., Vol. 9, Art. 809at p. 342 it is stated :

"Originally the term "court" meant, among other meanings, the Sovereign's place; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived' either immediately or mediately from the Sovereign. All tribunals, however, are not courts, in the sense in which the term is here employed, namely, to denote such tribunals, as exercise jurisdiction over persons by reasons of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction, Thus, arbitrators, committees of clubs, and the like, although they may be tribunals exercising judicial functions, are not "Courts" in this sense of that term. On the other hand, a tribunal may be a court "in the strict sense of the term although the chief part of its duties is not judicial. Parliament is a court. Its duties are mainly deliberative and legislative : the judicial duties are only part of its functions." In Art. 810 it is stated "In determining whether a tribunal is a judicial body the facts that it has been appointed by a nonjudicial authority, that it has no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it up prescribes a penalty for making false statements ; elements to be considered are (1) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and (2) a provision that -a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.

A tribunal is not necessarily a court in the strict sense of exercising judicial power because (1) it gives a final decision; (2) hears witnesses on oath; (3) two or more contending parties appear before it between whom it has to decide; (4) it gives decisions which effect the rights of subjects; (5) there is an appeal to a court; and (6) it is a body to which a matter is referred by another body. Many bodies are not courts, although they have to decide questions, -and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as the former assessment committees, the former court of referees which was constituted under the Unemployment Insurance Acts, the blenchers of the Inns of Court when considering the conduct of one of their members, the Disciplinary Committee of the General Medical. Council when considering questions affecting the conduct of a medical man, a trade union when exercising disciplinary jurisdiction over its members, or the chief officer of a force exercising discipline over members of the force."

A body required to act judicially in the sense that its proceedings must be conducted with fairness and impartiality may not therefore necessarily be regarded as a court. Counsel for the appellants however invited our -attention to a number of decisions in support of his contention that wherever there is a dispute which is required to be resolved by a body invested with power by statute and the body has to act judicially it must be regarded -as a court within the meaning of s. 195 of the Code of Criminal Procedure. Counsel asserted that every quasi-judicial authority is a court within the meaning of s. 195 (2) of the Code of Criminal Procedure. The contention is inconsistent with a large body of authority of this Court to which we will presently refer.

By s. 195 of the Code of Criminal Procedure, it is enacted that certain offences amounting to contempt of lawful authority of public servants i.e. offences falling under ss. 172 to 188 I.P; Code, offences against public justice under ss. 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offences are alleged to have been committed in or in relation to, any proceeding in any Court, and offences described in s. 463 or punishable under ss. 471, 475 or 476, when such offences are alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, cannot be taken cognizance of by any court, except in the first class of cases on a complaint in writing of the public servant concerned, and in the second and third class of cases on the complaint in writing of such Court or some other Court to which it is subordinate. An offence ordinarily signifies a public wrong : it is an act or omission which is a crime against society : it may therefore be brought to the notice of the Court by any person, even if he is not personally aggrieved by the act or omission. To that rule there are certain exceptions which are specified in ss. 195, 196, 197,198, 198A of the Code of Criminal Procedure and other special statutes. Authority of courts to entertain complaints in respect of the offences so specified is barred in view of the special nature of the offence which vitally affect individuals only or public bodies and in the larger interest of society it is deemed expedient to exempt them from the general rule.

The nominee of the Registrar acting under s. 96 performs the functions substantially of an arbitrator to whom a dispute is ,referred for adjudication. The Registrar may appoint a single nominee or a board of nominees and may at any time, for reasons to be recorded in writing, withdraw such dispute from the nominee or 'board of nominees, and may decide the dispute himself, or refer it again for decision to another nominee, or board of nominees, -appointed by him. Under sub-s. (3) of s. 93 it is open to the Registrar to suspend proceedings in regard to any dispute, if the question at issue between -a society and a claimant or between different claimants, is one involving complicated questions of law or fact. The jurisdiction of the nominee or board of nominees arises by reason not of investment by statute, but by appointment made by the Registrar who exercises control over the proceeding. The nominee therefore derives his authority from his appointment by the Registrar : the Registrar is entitled to withdraw his authority; and the Registrar may fix the time within which a dispute shall be disposed of : his adjudication is again called an award. The nominee is even entitled to make a provision for the 'expenses payable to the Registrar or to himself. It is true that the procedure of the nominee is assimilated to the procedure followed in the trial of a Civil proceeding. The nominee has the power to summon witnesses, to compel them to produce documents and he is required to hear the dispute in the manner prescribed by the Code of Civil Procedure. Thereby he is required to act judicially i.e. fairly and impartially : but the obligation to act judicially will not necessarily make him a court within the meaning of S. 195 of the Code. The position of a nominee of the Registrar is analogous to that of an -arbitrator designated under a statutory arbitration to which the provisions of S. 47 of the Arbitration Act, 1940, apply.

The authorities to which our attention was invited by counsel for the appellants may now be considered. It may be sufficient here to observe that the tests laid down by this Court in certain cases to be presently noticed make many of the cases relied upon of doubtful authority. In Thadi Subbi Reddi v. Emperor(1) it was held by a single Judge of the Madras High Court that the Registrar before whom a Co- operative Society files its suit, or its claim for enforcing a bond, is a "Court" within the meaning of S. 195 of the Code of Criminal Procedure, for the Registrar to whom a dispute touching a debt due to a society by a member is referred has power to administer oaths, to require the attendance of all parties concerned and of witnesses, and to require the production of all books and documents relating to the matter in dispute, and the Registrar is required to give a decision in writing, and when it is given the decision may be enforced on application to the Civil Court having jurisdiction as if it were a decree of the Court. 2 00 deface, or secrete or attempts to secrete any document which is or purports to be a will, or an authority to adopt a son, or any valuable security, or mischief in respect of such document.section 477A penalises falsification of accounts by a clerk, officer or servant or by a person employed in the capacity of a clerk, officer or servant. The offence of forgery and its allied offences may be committed if a false document is made with intent to cause damage or injury to public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, (S. 463). In order to attract s. 463 I.P. Code there must therefore, be making of a false document with the intention mentioned in that section. By 464 it is provided :

"A person is said to make a false document-

First.-Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or ,,makes any mark denoting the execution of a document, -with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was -not made, signed, sealed or executed, or at a time at

-which he knows that it was not made, signed, sealed or ,executed; or Secondly-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a, document in any material part thereof, after it -has been made or executed either by himself or by any other person, whether such person be living or dead at -the time of such alteration; or Thirdly Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, -knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration."

Making of a false document by a person in all the three clauses must be done dishonestly or fraudulently and with the necessary intention or knowledge contemplated by the three clauses.

Section 146 of the Maharashtra Co-operative Societies Act, 1960, does not make any such intention as is referred to in ss. 463 and 464 I.P. Code an ingredient of the offence: it also renders a person who is merely privy to the destruction, mutilation, alteration, falsification or secreting or to the making of any false or fraudulent entry in any register, book of account or document belonging to the society liable to be punished. under s. 146 (p) The offence may be committed under s. 146 only by an officer or member-past or present-of the society. Even destruction or secreting of a document or security is penalised under s. 146 of the Act.

We are unable to accept the contention that these two sections s. 146(p) of the Maharashtra Co-operative Societies Act and s. 465 P. Code,-are intended to deal with the same offence. It is true that certain acts may fall within both the sections. For instance, tampering with or altering or falsifying any, register, book of account or security, or making any false or fraudulent, entry in the register, book of account or document belonging to the society, may when done with the requisite intention mention- ed in s. 464 read with s. 463 I.P. Code be also an offence under s. 146(p) of the Maharashtra Co-operative Societies Act. But that, in our judgment, is not a ground for holding 'that s. 465 I.P. Code and the related offences were intended to be pro tanto repealed by the enactment of s. 146(p) of the Maharashtra Cooperative Societies Act. When the Indian Penal Code seeks to impose in respect of offences under As, 477 imprisonment which may extend to imprisonment for life, or with imprisonment upto a period of seven years for an offence under s. 477A it would be difficult to hold that when committed by an officer or a member of a society the maximum punishment which can be imposed by virtue of s. 146(p) would be three years rigorous imprisonment only. This Court in Om Prakash Gupta v. State of Uttar Pradesh(1) held that the offences under s. 409 I.P. Code and s. 5(1)(c) of the Prevention of Corruption Act, are distinct and separate offences and s. 409 I.P. Code is not repealed by s. 5(1) (c) of the Prevention of Corruption Act. In a recent judgment of this Court in T. S. Balliah v. T. S. Rengachari(2) we had occasion to consider whether s. 177 I.P. Code was repealed by s. 52 of the Indian Income-tax Act. It was pointed out that in considering the problem the Court must consider the true meaning and effect, of the two Acts, and unless there is repugnancy or inconsistency between the two enactments or that the two enactments cannot stand together they must be treated as cumulative. It is clear from a perusal of s. 146 (p) of the Maharashtra Co-operative Societies Act, 1960, and ss. 463 and 464 I.P. Code. that they are two distinct offences which are capable of being (1) [1957] S.C.R.423.

7 Sup C 1/69-14 (2) [1969] 3 S.C.R. 65.

Committed with different intentions by different sets of persons and it, could not be contemplated that the Legislature of the State of Maharashtra intended to repeal pro tanto the provisions of S. 465 I.P. Code by enactment of s. 146 of the Maharashtra Co-operative Societies Act. It is unnecesary in the circumstances to consider the question whether the Maharashtra State Legislature was competent to repeal the provisions of s. 465 I.P. Code. The law relating to Co-operative Societies may be enacted in exercise of the power under List II Entry 32 of the Seventh Schedule to the Constitution, but if s. 146 is directly intended to trench upon a provision ,of the Indian Penal Code-falling within List 11 Entry 1, sanction of the President under Art. 254(2) would apparently be necessary. Both the contentions raised by counsel for the appellants fail. The appeal is dismissed.

G.C.           Appeal dismissed.

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