B.R. Arora, J.@mdashThis miscellaneous petition is directed against the order dated January 7, 1989, passed by the Munsif and Judicial
Maginstrate No. 1, Bikaner, in Criminal Case No. 30 of 1985, by which the learned Magistrate framed charges against the petitioner Under
Sections 166, 174 and 186, I.P.C.
2. The petitioner was posted as the Station House Officer at Police Station, Nokha, in the year 1982, when he investigated certain cases against
the accused and presented the challan in the Court of the Munsif and Judicial Magistrate, Nokha. The petitioner could not appear in those criminal
cases, which were fixed for recording the evidence of the petitioner and other witnesses on July 6, 1974, September 18, 1984 and November 15,
1984. As the petitioner did not appear on these dates, the learned Judicial Magistrate, therefore, filed a complaint against the petitioner Under
Sections 166,174 and 186, I.P.C. These, complaints were registered as Criminal Cases No. 30/85, 31/85 and 32/1985 and summons were
issued to the petitioner. After the services of the summons, an application u/s 219, Cr. P.C. was moved and all these three complaints were
consolidated into one. The petitioner, after the service of the summons, also, moved an application u/s 197, Cr. P.C. mentioning therein that the
cognizance against the petitioner could not have been taken as the petitioner is entitled for the protection granted u/s 197, Cr. P.C, but that
application, filed by the petitioner, was, also, dismissed by the learned Magistrate. The petitioner has filed this miscellaneous petition challenging the
order of framing the charges and has also prayed that the proceedings pending in the Court below may be quashed, as according to him, no charge
could have been framed against him on the basis of the evidence recorded against the petitioner. His alternative argument is that the prosecution of
the petitioner u/s 174, I.P.C. is fully uncalled for, as according to him, for dealing with such a matter, the provisions contained in Section 350 Cr.
P.C. have been made and in view of the provisions of Section 350 Cr. P.C., the petitioner cannot be proseucted u/s 174, I.P.C. The learned
Public Prosecutor, on the other hand, has supported the order framing the charges against the petitioner passed by the learned Judicial Magistrate.
3. I have considered the rival submissions.
4. It is not in dispute that if the same act or omission constitutes an offence under two different laws then the accused can be tried under any of the
law and the accused cannot claim any right for trial by a particular Court under a particular Act. Section 26 of the General Clauses Act gives
power to the prosecution to prosecute the accused under either of the Enactments. It is not in dispute that so far as the provisions of Section 174
I.P.C. is a general provision, which makes the non-attendance in obedience of an order from any public servant an offence. u/s 174, I.P.C.,
whoever, be legally bound to attend in person or by an agent at a certain place and time in obedience of a summon, notice, order or proclamation
proceedings from any public servant legally competent as such public servant, intentionally omits to attend that place or at that time to depart from
the place where he is bound to attend at the time, it is lawful for him to depart, shall be punsihed with simple imprisonment for a term which may
extend to six months or a fine which may extend to Rs. 1000/-, or both. While Section 350 Cr. P.C. provides for the punishment for non-
attendance by a witness in a Criminal Court to whom the summons have been issued by a Criminal Court. Thus, Section 174, I.P.C. deals with the
offences committed by a witness in disobedience of the summons issued by a public authority including the Civil, Criminal or Revenue Courts,
while Section 350 Cr. P.C. deals only with the witnesses who were summoned to appear before the criminal Court and who neglects or refuses to
accept the notice or summons. Section 174, I.P.C. is, thus, a general provision while Section 350 Cr. P.C. is a special provision made with an
object to empower the criminal Court to try witnesses summarily for disobedience of its order. Section 350 Cr. P.C. is a latter provision while
Section 174, I.P.C. is an earlier provision Section 174. I.P.C. covers the whole field while Section 350 Cr. P.C. operates only in a limited sphere
with respect to Criminal Court only and carves-out an exception from the general provision. Section 174, I.P.C. will operate only in the field which
is not covered by Section 350 Cr. P.C. Sections 350 to 352 Cr. P.C. provide a complete Code in itself for taking proceedings against a person
who has committed an offence for non-attendance in a proceeding before a criminal Court. A lesser punishment has been provided for offences
covered by Section 350 Cr. P.C. than that of the the offence triable u/s 174, I.P.C. In my view, by enacting the new provision u/s 350 Cr. P.C.,
the legislature has curtailed the operation of the provisions of Section 174, I.P.C. and has made it operative only in the sphere where Section 350
Cr. P.C. is a latter provision and a special law on the point, while Section 174, I.P.C. is an earlier provision and a general law and the maxim
''general law should yield to special law'' is, also, applicable in the criminal proceedings. It would, therefore, be more appropriate to prosecute the
accused under the special provision of Section 350 Cr. P.C, enacted by the legislature rather than falling-back upon a general law and to
prosecute him u/s 174, I.P.C, which prescribes a sewere punishment. As the intention of the legislature in enacting Section 350 Cr. P.C. was that
the accused, in these special cases, may be punished in accordance with the provisions of special law, i.e., u/s 350 Cr. P.C. In this view of the
matter, the petitioner can be prosecuted only u/s 350, Cr. P.C. and not u/s 174, I.P.C.
5. I have, also, looked into the case file and looking to the facts and circumstances of the case, I am of the view that the ingredients of offences
Under Sections 166,174 and 186 of the Indian Penal Code are wanting and the evidence available on record does not prima facie constitutes the
offence under these Sections, for which the accused-petitioner has been charged-with.
6. In the result, this petition u/s 482, Cr. P.C. is allowed and the charges framed against the accused-petitioner Under Sections 166,174 and 186,
I.P.C. are quashed.