S. Velu Pillai, J.
1. In this revision petition two questions were raised:
first, whether Shri T. R. Velunni, District Magistrate at Trichur at the relevant time, who was also the Commissioner of Inquiry under the Commissions of Inquiry Act, 1952, referred to hereafter as the Act, was competent to prefer the complaint and
secondly, whether under the proviso (aa) to section 200, Crl. P. C. his examination by the Magistrate on taking cognizance of the offence on the complaint, could have been dispensed with.
I see no difficulty whatever in answering the first question against the revision petitioner, for the complaint in this case fulfils the definition of the term 'complaint' in Section 4(1)(h), Crl. P. C. and the Magistrate is competent under Section 190(1)(a), Crl. P. C., to take cognizance of the offence. This was also conceded by the learned counsel for the revision petitioner.
2. On the second question, the answer would depend on whether, the complainant in preferring the complaint, was acting or purporting to act in the discharge of his official duty; if he was, his examination upon the complaint could have been dispensed with under the proviso referred toabove. It was not contended, that as a District Magistrate he had any such duty to discharge. The contention of the learned government pleader was, that having been appointed as Commissioner of Inquiry under the Act and having submitted his report to Government, he could he authorised by Government to prefer the complaint, and if so, it must be deemed, that he was acting in the discharge of his official duty. He relied on Sections 3 and 10 of the Act, the material parts of which are as follows :
Section 4(1) ''The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the People or as the case may he, Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly'.
Section 10. 'Every member of the Commission and every officer appointed or authorised by the Commission to exercise functions under this Act shall be deemed to he a public servant within the meaning of Section 21 of the Indian Penal Code (Act XLV of 1860).'
His argument being, that under Section 3, Government could invest a Commissioner with all powers it may think fit, and under Section 10, as a public servant, the act of filing the complaint was his official duty. It was not contended however, that by the notification under Section 3, the complainant was authorised, not merely to hold an enquiry and submit his report, but also to prosecute the offenders in the event of his report being adverse to them. Reliance was placed only upon the Government Order directing the complainant to prefer the corn-plaint, and that direction does not purport to be made under Section 3. In my view, Section 10 of the Act also cannot avail the complainant, for the reason, that assuming as Commissioner of Inquiry, he was a public servant, it was not part of his duty to prefer the complaint. I cannot also accept the view taken by the learned Judge below, that by the mere order of Government authorising the complainant to prefer the complaint, he could be deemed to be acting in the discharge of his official duty, because the Government Order did not confer any power on him to be exercised by him as an official, save that preferring the complaint. On the basis, that he had no official duty whatever to prefer a complaint, as the District Magistrate or as the Commissioner of Inquiry, it is difficult to hold, that he purported to act in the discharge of official duty; he could not be deemed to have acted, in either of the two capacities.
3. Differing from the courts below, I hold that proviso (aa) to Section 200, Crl. P. C. is not applicable. It therefore follows, that the procedure prescribed by Section 200 without the proviso, should have been adopted by the learned Magistrate for taking cognisance of the offence on complaint, by examining the complainant. The Magistrate is directed to proceed accordingly. This revision petition is allowed to the above extent.