Benchamin vs State Of Kerala on 19 February, 2026

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Crl. R.P. No. 501/2021

                                                            2026:KER:14807
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                   THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          THURSDAY, THE 19TH DAY OF FEBRUARY 2026 / 30TH MAGHA, 1947

                          CRL.REV.PET NO. 501 OF 2021

      JUDGMENT DATED 16.08.2021 IN Crl.A NO.112 OF 2018 OF II ADDITIONAL
SESSIONS COURT,THODUPUZHA
      JUDGMENT DATED 28.06.2018 IN CC NO.277 OF 2012 OF JUDICIAL
MAGISTRATE OF FIRST CLASS,PEERUMEDU

REVISION PETITIONERS/APPELLANTS/ACCUSED:

      1       BENCHAMIN, AGED 40 YEARS,
              S/O. PALRAJ, NADUMATTATHIL (H), II DIVISION, KOZHIKKANAM
              ESTATE, KOZHIKKANAM KARA, ELAPPARA VILLAGE IDUKKI DISTRICT.

      2       HENTRY, AGED 37 YEARS, S/O. PALRAJ,, NADUMATTATHIL (H),
              II DIVISION, KOZHIKKANAM ESTATE, KOZHIKKANAM KARA, ELAPPARA
              VILLAGE, IDUKKI DISTRICT.

      3       SANTHOSH @ ETTY SANTHOSH, AGED 41 YEARS
              S/O. NAGAMANI, 1ST DIVISION LAYAM, KOZHIKKANAM KARA,
              ELAPPARA VILLAGE, IDUKKI DISTRICT

      4       VIJAYAKUMAR, AGED 38 YEARS
              S/O.SELVARAJ, KOZHIKKANAM ESTATE,1ST DIVISION KOZHIKKANAM
              KARA, ELAPPARA VILLAGE, IDUKKI DISTRICT

      5       ROBINSON, AGED 37 YEARS
              S/O.DHARMARAJ, KOZHIKKANAM ESTATE, IIND DIVISION LAYAM,
              KOZHIKKANAM KARA, ELAPPARA VILLAGE, IDUKKI DISTRICT.

              BY ADV SHRI.T.D.ROBIN

RESPONDENT/RESPONDENT/COMPLAINANT:

              STATE OF KERALA, REPRESENTED BY S.I OF POLICE, PEERUMEDU
              (CRIME NO.778/2012) REPRESENTED BY PUBLIC PROSECUTOR, HIGH
              COURT OF KERALA.

              SRI. ALEX M. THOMBRA, SR. PUBLIC PROSECUTOR

       THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON

       18.02.2026, THE COURT ON 19.02.2026 DELIVERED THE FOLLOWING:
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Crl. R.P. No. 501/2021

                                                            2026:KER:14807

                             JOHNSON JOHN, J.
            ---------------------------------------------------------
                          Crl. R.P. No. 501 of 2021
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                  Dated this the 19th day of February, 2026

                                  ORDER

The revision petitioners are the accused in a case chargesheeted

by the Sub Inspector of Police, Peermedu Police Station in Crime No. 778

of 2011 for the offences under Sections 143, 144 147 188, 294(b), 341

and 332 r/w 149 IPC.

2. The trial court convicted and sentenced the accused for the

offences under Sections 143 147 144 and 332 r/w 149 IPC and the

appellate court dismissed the appeal confirming the conviction and the

sentence passed by the trial court.

3. Heard Sri. T.D. Robin, the learned counsel for the revision

petitioners and Sri. Alex M. Thombra, the learned Senior Public

Prosecutor for the respondent.

4. The learned counsel for the revision petitioners argued that in

the absence of a complaint in writing from the public servant as

contemplated under Section 195 Cr.P.C., the conviction and sentence

2026:KER:14807 passed against the revision petitioners/accused is not legally sustainable.

It is pointed out that the main allegation against the revision petitioners

is that they disobeyed the order of PWs 1 to 3 Police Constables and

attacked them and caused hurt. It is alleged that while the Police

Constables were on duty near Elappara Private busstand on

24.12.2011., at about 6.45 p.m., the accused persons formed an

unlawful assembly and committed the alleged overtact. Admittedly,

there is no written complaint from the public servant concerned or from

a public servant to whom they are subordinate as required under Section

195 Cr.P.C.

5. The learned counsel for the revision petitioners argued that

since the primary offence said to have been committed is one under

Section 188 IPC and if cognizance is taken of the offences circumventing

the mandate of Section 195, the same is not permissible in law. In this

connection, the learned counsel for the revision petitioners cited the

decision of the Honourable Supreme Court in Devendra Kumar Vs. The

State (NCT of Delhi) and Ors. reported in MANU/SC/1133/2025,

wherein it was held as follows:

59. We may summarize our final conclusion as under:

2026:KER:14807

(i) Section 195(1)(a)(i) of the Code of Criminal Procedure bars the court from taking cognizance of any offence punishable Under Sections 172 to 188 respectively of the Indian Penal Code, 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 Code of Criminal Procedure, 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.

2026:KER:14807

(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 Indian Penal Code 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 Code of Criminal Procedure. This would all depend on the facts of each case.

(vi) Sections 195(1)(b)(i)(ii) & (iii) and 340 of the Code of Criminal Procedure respectively do not control or circumscribe the power of the police to investigate, under the Code of Criminal Procedure. 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

2026:KER:14807 investigation, provided the procedure laid down in Section 340 of the Code of Criminal Procedure is followed."

6. In Basir-ul-Huq v. State of W. B. [1953 KHC 356], the

Honourable Supreme Court held thus:

14. Though, in our judgment, S.195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, 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, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence fails in the category of sections mentioned in S.195, Cr. P. C. 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."

7. In this case, cognizance was also taken for offence under

Section 188 IPC along with other offences in violation of Section 195

2026:KER:14807 Cr.P.C. A perusal of the charge framed by the trial court shows that

charge is also framed for the offence under Section 188 IPC. It is well

settled that severance of distinct offences is not permissible when it

would effectively circumvent the protection afforded under Section 195

Cr.P.C and in that circumstance, I find that the judgment of the trial

court and the appellate court are liable to be set aside.

In the result, the revision petition is allowed and the impugned

judgment of the trial court and the appellate court are set aside. The

accused/revision petitioners are found not guilty of the offences charged

against them. Their bail bonds shall stand cancelled and they are set at

liberty forthwith.

sd/-

JOHNSON JOHN, JUDGE.

Rv