1. This is a reference from the Additional Sessions Judge of Mirzapur asking this Court in revision to set aside the sentence passed under Section 173 of the Indian Penal Code.
2. It is not disputed, that there was no complaint in writing made by the public servant concerned or by any public servant to whom he is subordinate as is required by Section 195 of the Criminal Procedure Code before cognizance can be taken by a Court of an offence under Section 173. The learned Magistrate's explanation is that he took cognizance of an offence under Section 225(b) of the Indian Penal Code and that having done so he was entitled under Section 238 of the Criminal Procedure Code to convict the accused under Section 173 of the Indian Penal Code which he regards as a minor offence of the same character as that for which a penalty is provided under Section 235(b) of the Indian Penal Code.
3. It is clear that when the Code provides that the Court shall not take cognizance of certain offences without complaint from is public servant it is not open to a Magistrate to ignore this provision by the device of instituting the case under another section of the Indian Penal Code. The conviction was clearly illegal. The reference is accepted and the conviction and sentence are set aside. The fine, if paid, will be refunded.