A.M. Bhattacharjee, J.
1. The prosecution giving rise to this appeal by the accused was launched under Section 193, IPC, but has resulted in a conviction under Section 500, I.P.C. Having heard Mr. J. C. Ghosh, learned Counsel for the appellant, the learned Advocate-General appearing for the State and Mr. T.K. Pandit, learned Counsel for the complainant-respondent, I have no doubt that the judgment impugned cannot be sustained and that the appeal must be allowed on a point of law, the point being that there was no complaint in respect of the offence under Section 500, I.P.C. for which the accused has been charged and convicted.
2. This ground, however, was not taken in the petition of appeal. But, where it is alleged that an illegality is so grave as to vitiate the whole trial, such a ground, though not taken specifically in the petition of appeal, must be allowed to be urged at the hearing in a criminal appeal. In this respect there is an apparent distinction between an appeal under the Civil P.C. 1908 and an appeal under the Cr. P.C. 1898 and while the Civil P.C. has, in Order XII, Rule 1, insisted that the memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection and has provided in It. 2 that no other ground can be urged except by leave of the Court, the Cr. P.C., in Section 419, merely pro-vides for a criminal appeal to be made in the form of a petition without requiring expressly that the grounds of appeal are also to be stated therein. It is, no doubt true that the Supreme Court in Kapil Deo v. State of Uttar Pradesh : 1958CriLJ262 has observed (at p. 123) that in a criminal appeal also the 'memo of appeal is meant to be a succinct statement of grounds upon which the appellant proposes to support the appeal' and has disapproved the 'prevailing practice ...according to which no specific grounds are taken either on fact or on law' in a petition of criminal appeal. Following, therefore, as one must, the observations of the Supreme Court noted above, it is to be held that grounds of appeal are to be stated in a petition of criminal ap- peal also. But these observations do not go so far at; to say that if there is an illegality or error rendering the proceeding without jurisdiction or otherwise vitiating the whole trial, such a ground cannot be allowed to be taken at the hearing of the appeal simply because the accused or his lawyer, inadvertently or otherwise, failed to take such a ground in the petition of appeal. I am, therefore, of opinion that I must allow Mr. Ghosh to urge this ground, which if substantiated, would demonstrate the entire trial to be without jurisdiction and the trial Court to be almost coram non judice. I must also point out that the learned Advocate-General and the learned Counsel appearing for the complainant-respondent have not also objected to this ground being urged at the time of hearing on the ground of its not having been taken in the petition of appeal.
3. Mr. Ghosh has elaborated his point in the following manner. The accused has been charged and convicted Eor committing defamation by using certain defamatory words in respect of the complainant on 30-1-1977. But the complaint itself, labelled under Section 193, Indian Penal Code, was filed on 28-2-75. The mere wrong label of a Section under which a complaint is purported to have been filed is not material and a complaint if it discloses an offence under any law, can surely be proceeded with even though a wrong Section or provision of law has been quoted as its label. But it is too obvious to require any argument that a complaint, filed on 23-2-75 cannot disclose any facts or allegation relating to any offence alleged to have been committed on 30-1-77. The case, so far it relates to the ofence of defamation, must, therefore, be regarded to have proceeded without any complaint. It is, no doubt, true that a complaint is not the only material which alone can generate a criminal prosecution and, as is well-known, a criminal proceeding can be initiated under Clauses (b) and (c) of Section 190 of the Cr. P.C. otherwise than on a complaint. But for a prosecution for an offence of defamation under chapter XXI of the I.P.C. a complaint made by some person aggrieved is a sine qua non under the mandatory provisions of Section 198 of of the Cr. p. C, 1398. A bare perusal of Section 198 demonstrates this position with irresistible clarity requiring no citation for its authority. But I would still like to refer to the decisions of the Supreme Court in Abdul Rehman v. Mohomed Haji Ahmad : 1960CriLJ158 where it has been pointed out (at p. 85) that the provisions of Section 198, Cr. P.C. are mandatory and that there can be no 'conviction for an offence referred to in Section 198 or Section 199 where no complaint has been made as required by these sections '. Reference may also be made to the decision of the Supreme Court in H. N. Rishbud. v. State of Delhi : 1955CriLJ526 where (at p. 204), it has been observed that Section 193 and Sections 195 to 199 'regulate the competence of the Court and bars its jurisdiction in certain cases excepting in compliance therewith'. The present case must, therefore, be held to be bad and without jurisdiction in the absence of a complaint to sustain it.
4. This complaint was inquired into by a learned Magistrate who submitted a report to the effect that a case under Section 500. I.P.C. was made out. The learned Advocate-General has pointed out that in the statements of the complaint before the enquiring Magistrate, there are allegations of facts constituting the offence of defamation alleged to have been committed on 30-1-77 for which the accused has been charged and convicted and the learned Advocate-General has contended that such statements should be regarded as parts of the complaint and that it cannot, therefore, be said that there was no complaint in this case for the offence of defamation committed on 30-1-77. But it is obvious that a complaint, whether oral or written, must come into existence before the complainant is examined, under Section 200, Cr. P.C. or examined in any inquiry under Section 202 of the Code and statements made, even though by the complainant, during such examination or inquiry, cannot form part of the complaint. In re Pedda Anjinigadu AIR 1922 Mad 353, on a difference between Ayling, J., and Coutts-Trotter, J., it has been held by Wallis, C.J., agreeing with Coutts-Trotter, J., that a complaint must be anterior to and distinct from the statements made by the complainant during subsequent examination or inquiry and that such statements cannot be construed as a complaint or part of the complaint already filed. 'Complaint' has been defined in Section 4(i)(h) of the Cr. P.C. as allegation made, orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence. The written complaint filed in this case has not made, and being filed on 28-2-75, could not make any reference to the occurrence on 30-1-1977 for which the accused has been charged and convicted and, in my view, the subsequent statements made by the complainant during inquiry before the enquiring Magistrate cannot be considered as if they were made with a view to the Magistrate's taking action thereon as a complaint. This is also the view of the Patna High Court as will appear from the decision in Raghunath Puri v. Emperor AIR 1932 Pat 72 on which reliance has been placed by Mr. Ghosh for the appellant.
5. The decision of the Allahabad High Court in Queen Empress v. Deokinandan (1888) ILR 10 All 39 is one of the earlier decisions on the point before me where it was held by Brodhurst, J. that if a charge of defamation, not contained in the complaint filed before the Magistrate, is framed upon statements made by the complainant under Section 200, Cr. P.C. such a charge must fail for want of a complaint as required by Section 198 of the Cr. P.C. of 1882. It may be noted that the relevant provisions of Section 198 of the Code of 1882 were similar to those contained in Section 198 of the Code of 1898, which Code is still now the law in Sikkim. In Deokinandan's case noted above, Brodhurst, J., also relied on a yet earlier decision of the Allahabad High Court in Empress of India v. Kallu (1883) ILR 5 All 233 a decision of Straight, J., which has thereafter been followed in several other cases in the same and in other High Courts. Mr. Ghosh has drawn my attention to a much later decision of the Allahabad High Court in Jagadamba Prasad v. Emperor AIR 1933 All 626 where Kallu's case and the cases of the Calcutta and the Madras High Courts following Kallu's case have been relied on. Agreeing with this long catena of cases. I am of opinion that the conviction in this case under Section 500. I.P.C. must fail for want of a complaint for the said offence as required under Section 198 of the Cr. P.C.
6. Mr. T.K. Pandit, learned Counsel for the complainant respondent, has, however, urged that the trial in this case was not vitiated and the defect of absence of a complaint was cured by the provisions of Section 537 of the Cr. P.C. as the said defect has not been shown or alleged to have caused any prejudice to the accused or to have caused any failure of justice and has relied mainly on the Full Bench decision of the Punjab High Court in Krishen Kumar v. State . I do not think that the said Punjab decision can be read as an authority for such a proposition. The main question for consideration in that Punjab decision was whether investigation of offences punishable under Section 161 or Section 165 or 165A I.P.C. or Section 5(2), Prevention of Corruption Act, 1947, by a police officer below the rank of a Deputy Superintendent of Police without the order of a Magistrate as required under Section 5A of the Prevention of Corruption Act, would vitiate the trial and the' Punjab High Court held that it would not and observed (at p. 156) as hereunder:
In a criminal trial, the conviction or acquittal of the accused proceeds upon evidence given at the trial. In case there is anything suspicious in the investigation it is for the Court to consider that matter in determining the truth of the charge. That being the position of matters, investigation by a police officer not empowered by law to investigate cannot prejudice the accused.
7. This also appears to be the view of the Supreme Court in State of Uttar Pradesh v. Bhagawant : 1964CriLJ140 where it has been observed (at p. 226) that 'the question is not whether in investigating an offence the police have disregarded the provision of the Act but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial,'
8. It is not difficult to understand the principle behind these observations which is contained in Section 557 Cr.P.C., which seeks: to cure irregularities or even illegalities which do not prejudice the accused. But Section 537 and the principles contained therein cannot be invoked in a case where a trial is incompetent and without jurisdiction under the law. If the provision of any law gives the Court jurisdiction only on the compliance of a certain condition precedent, then the non-compliance of such a provision goes to cut at the root of the jurisdiction of the Court and renders the proceeding as void and without jurisdiction and Section 537, however potent it may otherwise be, is not potent enough to cure the want of competency and jurisdiction of a Court. No authority can be necessary for this too obvious a proposition, but yet reference may be made to the decision of the Supreme Court in W. Slaney v. State of Madhya Pradesh : 1956CriLJ291 it has been observed (by Chandrasekhara Aiyar, J., for himself and Jagannadhadas. J., Imam, J., agreeing in a separate judgment) as here under:
of course lack of competency of jurisdiction, absence of a complaint by the Proper person or authority specified, want of sanction prescribed as a condition precedent for a prosecution, in short, defects that strike at the very root of jurisdiction stand on a separate footing and the proceedings taken in disregard or disobedience would be illegal. (Underlining mine)
9. This is, therefore, a clear authority of the Supreme Court for the proposition that absence of a complaint as required under Section 198, Cr. P.C. would strike at the very root of the jurisdiction of the Court to proceed with the trial of defamation and such a trial would be illegal. Reference may also be made to another decision of the Supreme Court in Payare Lal v. State of Punjab : (1962)ILLJ637SC . where (at 693-604) after quoting with approval the following passage from the Privy Council decision in Pulukuri Kottayas v. Emperor AIR 1947 P.C. 67 at p. 75 namely:
when a trial is conducted in a manner different from that prescribed by the Court, the trial is bad and no question of curing any illegality arises.:
the Supreme Court has observed that a case of want of competency of jurisdiction cannot be cured. As already pointed out, the Supreme Court has held in IT. N. Rishbud's case : 1955CriLJ526 and in Abdul Rehman's case : 1960CriLJ158 that absence of a complaint in a trial for the offence of defamation strikes at the root of the Court's competence and jurisdiction to entertain and proceed with the trial. That being the position in this case, the prosecution must fail and the appeal must be allowed.
10. It appears that in the Punjab Full Bench case in Krishen Kumar v. State it has been observed (at p. 155 para 36) that the Supreme Court decision in Tara Singh v. State : 2SCR729 'is an authority for the proposition that contravention of 'mandatory' provisions of the Code does not vitiate the trial if no prejudice is caused'. Strong reliance has been placed by Mr. Pandit on these observations to substantiate his contention that contravention in this case of the provisions of Section 198 of the Cr. P.C. has not vitiated the trial as no prejudice has been alleged or shown to have been caused to the accused. With great respect to the learned Judges of the Punjab Full Bench, I would like to point out that no such sweeping or general proposition has been laid down by the Supreme Court in Tara Singh's case where the Supreme Court, while pointing out the great importance of observing faithfully and fairly the provisions of Section 342, Cr. P.C. han observed (at p. 446) that, in spite of such great importance 'every error or omission in this behalf' would not necessarily vitiate a trial because such error or omission may very well fall within the category of curable irregularities and that the question in such case 'depends upon the degree of the error and upon whether prejudice has been caused or is likely to have been caused'. But the Supreme Court in that decision or in any other decision that I know of has never laid down that violation of the mandatory provision of the Code, by itself, can never vitiate a trial, unless prejudice has been or has been likely to have been caused. If that was the position in law, then Section 537 of the Code could have been drafted in much simplier fashion and Section 530 of the Code listing the various irregularities which vitiate the trial, would not find any place in the Code.
11. Be that as it may, coming back from generality to the specific point before me. I have already pointed out that in view, of the Supreme Court decisions in II N. Rishbud's case AIR 1955 SC 190, in Abdul Rehman's case : 1960CriLJ158 read with the observations in the decisions in W. Slaney's case : 1956CriLJ291 and in Pyare Lal's case : (1962)ILLJ637SC , it must be held that prosecution for the offence of defamation in this case must fail in the absence of a complaint as required under Section 198 of the Cr. P.C. That is sufficient for the disposal of the present appeal and relieves me from considering the broad, proposition urged by Mr. Pandit that violation of even 'mandatory' provisions of the Criminal Procedure Code would not affect the validity of any trial unless prejudice has been caused or likely to have been caused to the accused and the further question that, if that is so, whether the relevant provisions can still then be called 'mandatory'. But as already noted, the decisions of the Supreme Court noted above are clear authorities for the proposition that absence of a complaint as required under Section 198, Cr. P.C. will vitiate a prosecution for defamation-prejudice or no prejudice.
12. The appeal is, therefore, allowed and the judgment of the learned Sessions Judge is set aside. Fine, if already paid by the accused, shall be refunded.