K and S sent a petition to the Chief Minister and the Minister of Civil Supplies making certain allegations against V, a Jamcdar to the Chief Minister. Thereafter the Secretary to the Chief Minister filed a complaint under Section 182 read with Section 34, Penal Code charging K and S with giving false information to the minister intending him to punish V or with the intention that the minister should use his lawful power as a public servant to the injury and annoyance of V. He also produced an authority signed by the minister authorising him to file the complaint. During trial the jurisdiction of the Magistrate was objected to on the ground that he had no complaint signed by the proper public servant, namely the Chief Minister before him. The Magistrate overruled this objection holding that the word 'complaint' in Section 195, Criminal P. C. was not used in the technical sense in which it was used in Section 4 and that the Chief Minister having authorised his secretary to file the complaint the prosecution was not really at the instance of some other person.
1. Krishna Tukaram Jadhav and Sambhu Krishna Jadhav--whom I will hereafter refer to as the petitioners,--addressed a letter in the form of a petition dated 2-9-1952, to the Chief Minister of Bombay and to the Minister of Civil 'Supplies, Bombay. In that petition they made certain allegations against one Vithoba Laxman SakpaJ. It is unnecessary to set out the details of those allegations. Thereafter the Secretary to the Chief Minister, Bombay State, filed a complaint in the Court of the Presidency Magistrate, 8th Court, Esplanade, Bombay, charging the 'petitioners with having committed an offence under Section 182 read with Section 34, Penal Code.
It was the case of the complainant that both the petitioners gave false information to the Chief Minister, 'with the intention of causing thereby the Chief Minister to proceed against and punish Vithoba Laxman Sakpal or with the intention to cause the Chief Minister to use his lawful power as public servant to the injury or annoyance of Vithoba Laxman Sakpal.'
The complainant produced before the Court an authority signed by the Chief Minister of Bombay to the following effect:
'I hereby direct and authorise my Secretary Shri V. Y. Tonpe to file a complaint under Section 182 read with Section 34, Penal Code against Krishna Tuka-ram Jadhav and Sambhu Krishna Jadhav for giving false information to me against Vithoba Laxman Sakpal by presenting application dated 2-9-1952.'
The learned Magistrate entertained the complaint and proceedings were started against the two petitioners. After evidence was partially recorded, counsel for the accused raised an objection that the proceedings before the Court were without jurisdiction as there was no complaint on record of the Chief Minister who alone could file a complaint tor the offence charged.
The learned Magistrate held that the expression complaint' in Section 195, Criminal P. C. was not used in any technical sense as defined in Section 4 of the Code. In the view of the learned Magistrate:
'As the Chief Minister had in writing directed and authorised his Secretary by name to file a complaint under Section 182 read with Section 34, Penal Code against the accused by name for giving false information etc., it was obvious that the Chief Minister intended that those persons should be punished and that the prosecution was not really at the instance of some other person.'
The learned Magistrate accordingly overruled the contention and directed the case to, proceed.
Krishna Tukaram has come to this Court in revision against that order.
2. The order passed by the learned trial Magistrate is an interlocutory order and normally this Court does not interfere with proceedings before subordinate criminal Courts at an interlocutory stage. But in this case it appears that the proceedings pending before the learned Magistrate have been entertained by him without jurisdiction. On the view that I take the proceedings should not be pennitted to run their normal course and an order either of conviction or acquittal should be recorded before entertaining an application in revi-sion it would involve the two accused into considerable trouble aud harassment if the proceedings in the Court of first instance are not quashed at this stage. In my judgment the proceedings appear to have been entertained without jurisdiction.
3. Section 195(1)(a), Criminal P. C. provides:
'No Court shall take cognizance--(a) of any offence punishable under Sections 172 to 188, Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.' in the present case it is conceded that there is no complaint in writing of the public servant concerned. Evidently the offence with which the accused are charged is the offence of giving to the Chief Minister of the State of Bombay, who is a public servant, information which the accused knew or believed to be false and intended thereby to cause, or knowing it to be likely that they would thereby cause, the public servant to do or omit to do something which the public servant ought not to do or omit if the true state of facts respecting which the information was given were known by them, or to use the lawful power of the public servant to tha injury or annoyance of any person. The information having been given to the Chief Minister, by reason of Section 195(1)(a), Criminal P. C. the learned Magistrate can take cognizance of the proceedings, only on a complaint in writing by the Chief Minister.
Now, the complaint filed in this case on which the prosecution has been commenced against the accused is a complaint by the Secretary to the Chief Minister and not by the Chief Minister himself. When the Legislature has provided that the Court shall not take cognizance of certain offences except on the complaint in writing of the public servant or of some other public servant to whom he is. subordinate, it is not a sufficient compliance with Section 195(1)(a) that the proceedings are commenced on a complaint in writing which is merely authorised by the public servant. In my judgment before proceedings can be entertained under Section 182, Penal Code, the public servant to whom the information relating to which a charge is made has been given must make a complaint in writing, or a complaint in writing must be made by some other public servant to whom such public servant is subordinate.
4. A complaint in writing by 'the public servant concerned is a condition precedent to the cogni-zance being taken by a Magistrate of an offence mentioned in Section 195(1)(a), Criminal P. C. and that condition must be strictly complied with. A complaint not by the public servant concerned or by some public servant to whom he is subordinate, but by a person who is merely authorised in writing to file a complaint in his own name is not a good substitute for the requisite complaint so as to confer jurisdiction upon the Magistrate. Section 195, Criminal P. C. does not permit any delegation of authority by the public servant concerned.
When the Legislature has thought it necessary to permit even a limited delegation to be made, an express provision bo that effect has been made in the Code. In Section 476, Criminal P. C. which deals with the procedure of filing complaints in cases mentioned in Section 195, it is expressly provided by the first proviso that
'..... Where the. Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.'
The Legislature not having made any similar provision, it would be reasonable to hold that delegation of authority to file a complaint by the public servant concerned is not permissible.
That view finds support in a Full Bench decision of this Court reported in -- 'Punamchand Manek-lal. In re', : AIR1914Bom138 . It was observed in that case by Heaton J. that where an Income-tax Collector does not choose to give sanction to prosecute an accused, person as he could have done under Section 195(b) and (c), as they then stood, but he chooses to make a complaint, it is not permissible to him to delegate his authority.
In that case the complaint was not lodged by the District Magistrate but by a certain Mr. Lakhia by order of the District Magistrate, and it was observed by Heaton J. In considering the validity of the proceedings started at the instance of Mr. Lakhia:
'.....It was argued that because the complaint, which was made against this applicant was lodged by a certain Mr. Lakhia by order of the District Magistrate or the Collector, and because the Collector is a public servant to whom the Income-tax Collector is subordinate, therefore this complaint may be regarded as a complaint of the kind provided for in clause (a) of Section 195. But that clause provides that the public servant concerned may either give a sanction or make a complaint and that seems to me to exclude the idea that a public servant may make a complaint by any form of delegation. It seems to me that he must make the complaint, if he wishes to take that course, personally. If he 'does not wish to take that coursepersonally, the delegation is obtained by giving thesanction. Similarly the Collector as superior officer,though personally no doubt he .might make thecomplaint, cannot delegate the making of a complaint to another.'
Those observations in my judgment are very pertinent in the present case.
5. On behalf of the State reliance was sought to be placed upon certain observations made in a judgment of this Court reported in --'In re, Aparao', : AIR1918Bom141 . That was a case in which a District Judge forwarded to the District Magistrate a copy of his judgment with a letter in which he called attention to remarks relating to forgery of a will and requested the latter to take up the matter for prompt investigation. Without examining the District Judge on oath in support of the tatements in his letter, the District Magistrate ordered a police investigation and treating the letter as a complaint, he brought the case for trial before a competent Magistrate. The accused applied to the High Court in revision and it was held that the failure to examine the District Judge on oath was an irregularity of a kind which came within those enumerated in clause (a) of Section 537, Criminal P. C., and that, therefore, the proceedings against the accused were properly initiated.
The point of law decided in that case is not likely to arise, since the amendment to Section 200, Criminal P. C. which has obviated the necessity of examining public servants on oath when they file complaints in their official capacity. But reliance was sought to be placed upon the observations made at p 142 where Heaton J. observed that the real purpose of the provisions of Section 195 was that no man concerned or supposed to be concerned in any of the offences enumerated in Section 195 when this supposed offence arises in connection with a case or with judicial proceedings and so forth shall be proceeded against unless the Court or officer concerned indicates that he thinks the case ought to be inquired into. Section 195(a) before it was amended in 1923 provided that no Court shall take cognizance of any offence punishable under Section 172 to 188, Penal Code except with the previous sanction or on the complaint of the public servant concerned or of some other public servant to whom he was subordinate.
It was possible, before the Code was amendedin the year 1923, for a public servant to give sanction for prosecution for offences specified in that subsection and no form of sanction was provided bythe Code of Criminal Procedure. In those circumstances if there was evidence to indicate that thepublic servant concerned dusired that the offender,should be prosecuted, that was sufficient compliancewith the terms of Section 195 and a sanction may bedeemed to be given. The Legislature has nowdeleted the words 'with the previous sanction orin the section as it stood at the date when thecase in 'In re Aparao (B)' was decided. The observations made in that case can have no validity sincethe amendment of the Code of Criminal Procedurein the year 1923.
6. Reliance was also sought to be placed upon a judgment of a single Judge of the Allahabad High Court reported in -- 'Barkat v. Emperor', : AIR1943All6 (C). Allsop J. who decided that case appears to have taken the view that the expression 'complaint' used in Section 195(1)(a) was not intended to be used in the sense of a complaint as defined in Section 4(1)(h), Criminal P. C. In the view of the learned Judge the intention of Section 195 is only that Magistrate should not punish any person except at the instance of the public officer concerned or his superior, and he did not think that the term' 'complaint' was used in the technical sense in which it was defined in Section 4, With great respect to the learned Judge I am unable to agree with that view. When the Legislature makes the jurisdiction oE a criminal Court dependent upon a complaint in writing by the public servant concerned, you cannot substitute the complaint by some other information or report--not of the 'public servant concerned' but of some other person who has moved the Magistrate at the instance of the public servant--and say that the requirements of the statute are complied with. If the Legislature has provided a condition precedent to the exercise of jurisdiction by a Court, die condition -precedent must be strictly complied with and a substitute cannot in my judgment avail the Magistrate to assume jurisdiction.
It is true that the view taken by Allsop J. appears io have met with approval of a Division Bench of the Saurashtra High Court presided over by Divatia C. J. In -- 'State v. Nandlal', AIR 1951 Sau 8. The learned Chief Justice in delivering the judgment of the Court does not appear to have given any additional reasons besides those given by Allsop J. In 'Barkat v- Emperor (C)'. I do not think that the view which appealed to the learned Chief Justice can be accepted.
7. The order passed by the learned trial Magistrate is, therefore, set aside and it is directed thatthe learned trial Magistrate do proceed to disposeof the complaint as entertained without jurisdiction.
8. Order accordingly.