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Loknath Mishra Vishweshwar Prasad Mishra Vs. the State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 189 of 1962
Judge
Reported inAIR1964MP237; 1964CriLJ420; 1964MPLJ383
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195, 195I and 537; Indian Penal Code (IPC) - Sections 188
AppellantLoknath Mishra Vishweshwar Prasad Mishra
RespondentThe State of Madhya Pradesh
Advocates:N.R. Shukla, Adv.
DispositionRevision allowed
Cases ReferredState v. Nandlal
Excerpt:
- - on revision, the first additional sessions judge, jabalpur, affirmed both the conviction as well as the sentence. has held that the term 'complaint' in section 195 (1) (a) of the code had not been used in the technical sense in which it was defined in section 4 (1) (h) of the code, and that consequently the filing of a complaint by a person other than the public servant concerned or some other public servant to whom he was subordinate was only a curable irregularity and no conviction based on such an irregular complaint could be set aside unless failure of justice had been occasioned......under sections 172 to 188 of the ndian penal code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.'4. in the instant case, it is common ground that 'the public servant concerned' as envisaged in the aforesaid section was shri r. c. shrivastava, the then district magistrate, jabalpur, who had promulgated the order under section 144 of the code; but the complaint on the basis of which the prosecution was initiated in the court of the magistrate' was filed by somebody signing himself as 'p. a. for r. c. shrivastava, district magistrate, jabalpur'. a close examination of the provisions of the section shows that the courts are prohibited from taking cognizance of an offence under section 188 of the indian.....
Judgment:
ORDER

T.P. Naik, J.

1. The applicant-accused was convicted by the Magistrate First Class, Jabalpur, under Section 188 of the Indian Penal Code for having contravened an order under Section 144 of the Code of Criminal Procedure promulgated by the District Magistrate, Jabalpur, and sentenced to pay a fine of Re. 1/- or, in default of payment of the fine, to undergo rigorous imprisonment for one day. The conviction was based on a plea of guilty. On revision, the First Additional Sessions Judge, Jabalpur, affirmed both the conviction as well as the sentence. The applicant-accused has, therefore, come up in revision to this Court against his conviction and sentence.

2. The main contention of the learned counsel for the applicant-accused is that in so far as there was no complaint before the trial Court in terms envisaged by Section 195 (1) (a) of the Code of Criminal Procedure (hereinafter called 'the Code'), the trial Court could not have taken cognizance of the offence under that section and that consequently the proceedings are liable to be quashed and the conviction and sentence liable to be set aside.

3. Section 195 (i) (a) of the Code provides :

'No Court shall take cognizance of any offence punishable under Sections 172 to 188 of the ndian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.'

4. In the instant case, it is common ground that 'the public servant concerned' as envisaged in the aforesaid section was Shri R. C. Shrivastava, the then District Magistrate, Jabalpur, who had promulgated the order under Section 144 of the Code; but the complaint on the basis of which the prosecution was initiated in the Court of the Magistrate' was filed by somebody signing himself as 'P. A. for R. C. Shrivastava, District Magistrate, Jabalpur'. A close examination of the provisions of the section shows that the Courts are prohibited from taking cognizance of an offence under Section 188 of the Indian Penal Code except on' a complaint in writing by the District Magistrate or by some other public servant to whom he is subordinate. That is to say, the filing of a written complaint by the District Magistrate or by some other public servant to whom he was subordinate was a condition precedent to the jurisdiction of the trying Magistrate for taking cognizance of the offence under Section 188 of the Indian Penal Code.

It is clear that in the instant case there was no complaint in writing of the District Magistrate or of some other public servant to whom he was subordinate, and that consequently there was no such complaint as could empower the trying Magistrate to take cognizance of the offence under Section 188 of the Indian Penal Code. A document purporting to be a complaint under Section 195 (1) (a) but signed by 'P. A. for the District Magistrate, Jabalpur' could not be a substitute for a 'complaint in writing of the public servant concerned' as envisaged in Section 195 (1) (a) of the Code.

5. Dealing with a similar contention, Shah J., (as he then was) in Krishna Tukaram v. Secy. to the Chief Minister, Bombay, (S) AIR 1955 Bom 315 at p. 318 said:

'When the Legislature makes the jurisdiction of 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 of her 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, the condition precedent must be strictly complied with and a substitute cannot in my judgment avail the Magistrate to assume jurisdiction.''

6. Similarly, in Ramsvvarup v. State, AIR 1952 Assam 68, a Division Bench of the Assam High Court presided over by Thadani, C. J. and Ram Labhaya, J. has held that the previsions of Section 195 (i) (a) of the Code contain an absolute prohibition against cognizance being taken by any Court of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some Other public servant to whom he is subordinate and that any proceeding taken without such a complaint being there was without jurisdiction.

7. A contrary view was taken in Barkat v. Emperor, AIR 1943 All 6 where Allsop, J. has held that the term 'complaint' in Section 195 (1) (a) of the Code had not been used in the technical sense in which it was defined in Section 4 (1) (h) of the Code, and that consequently the filing of a complaint by a person other than the public servant concerned or some other public servant to whom he was subordinate was only a curable irregularity and no conviction based on such an irregular complaint could be set aside unless failure of justice had been occasioned. This decision was cited with approval by a Division Bench of the Saurashtra High Court in State v. Nandlal, AIR 1951 Sau. 8.

8. The Allahabad and Saurashtra view did not find favour with Shah, J. (as he then was) in the Bombay case: (S) AIR 1955 Bom, 315 (supra); and in my opinion, first, there is no warrant for assuming that the word 'complaint' in Section 195 (1) (a) of the Code has been used in a sense different from the one which it bears under Section 4 (1) (h) of the Code and, secondly, a so-called complaint for an offence under Section 188 of the Indian Penal Code, which has not been signed by the 'public servant concerned' or by 'some other' public servant to whom he was subordinate', cannot be called a complaint within the meaning of Section 195 (1) (a) of the Code; and as there is no legal complaint, which alone could give jurisdiction to the trying Magistrate to try the offence under Section 188 of the Indian Penal Code, there was no curable irregularity within the meaning of Section 537 (a) of the Code. Section 537 (a) of the Code provides that

'no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint ...

In my opinion, when a person not authorized to file a legally valid complaint, which alone could initiate a criminal prosecution under Section 188 of the Indian Penal Code, purports to file a complaint which does not satisfy the requirements of Section 195 (1) (a), it is no complaint in the eye of law and the question of curing an error, omission or irregularity in a complaint under Section 537 (a) of the Code does not arise. It cannot be said to he a case of an error or omission or an irregularity in a complaint. It is a case where no legal complaint, which could validly initiate a criminal prosecution or on the basis of which a Court could take cognizance of an offence, has been filed before a competent Court.

The expression 'error, omission or irregularity in the complaint, occurring in Section 537 (a) of the Code presupposes the existence of such a legal complaint as could give jurisdiction to a Magistrate to take cognizance of an offence. And once such a complaint was before the Court on which cognizance of an offence could be taken, any error, omission or irregularity therein could be cured under Section 537 (a) of the Code. But, if the so-called complaint was invalid in law to give jurisdiction to the Court for taking cognizance, the criminal proceeding initiated on such a complaint is without jurisdiction and no question of curing any error, omission or irregularity therein at all arises.

9. In the result, the application for revision, is allowed. In the absence of a complaint in writing of the public servant concerned or of some other public servant to whom he was subordinate, the trial Court had no jurisdiction to take cognizance of the offence under Section 188 of the Indian Penal Code and the proceedings were thus without jurisdiction and invalid. They are accordingly hereby quashed. The conviction and sentence of the applicant-accused are also set aside. The fine, if paid by the applicant shall be refunded to him.


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