(1) In this case the point for determination The whether the Court can take cognizance of as offence Under Section 188, IPC without a complaint in writing of the public officer concerned.
(2) The Plead Constable of the Jesar Thanm made a report to the Sub-Inspector complaining of obstruction by the respondents in the discharge of his official duty and hurt. After stating the facts in the report he had stated that lie was thereby 'making complaint for proceeding against the respondents according to law.' The In-change Sub-Inspector, who received the report, .'the permanent Sub-Inspector being out of station, investigated into the offence and a charge-sheet to the Magistrate was sent by the Sub-Inspector, to trtwm the case was made over on his return. The learned Magistrate held after a trial that he had no jurisdiction to take cognizance of the offence in the absence of a proper complaint as required, by Section 195(1), Criminal P. C. and acquitted the respondent.
(3) The learned Advocate-General contended that the word 'complaint' appearing in Section 195 (1) should be construed broadly. He pointed out that in this case the complaining officer viz., the Head Constable was examined on oath. The original complaint, which he had made to the Sub Inspector, was also exhibited in Court by hint when he was giving his evidence and under the circumstances it ought to have been held that the provisions of Section 195(1), Criminal P. C. were substantially complied with and the respondents should not have been acquitted. He referred to - 'State v. Nandlal Karunashanker' AIR 1951 Sae 8 (A), in which the view was expressed that the word 'complaint' should not be understood in the strict feense of the term (i.e., in terms of t5. 4(1 (h), Criminal P. C, which defines 'CQrnplainfc'>i and all that was necessary was that it must be clear that the public servant concerned had applied his mind to the facts of the case and thought it necessary to send the case to the polios for investigation for taking criminal proceedings. 'Barkat v. Emperor' : AIR1943All6 , was relie on in that case.
(4) The definition of 'complaint' in Section 4(1) (h). Criminal P. C. expressly excludes the report of a police officer and requires that it should be made to a Magistrate. The complaint in this case suffers from the essential ingredient that it was not made to a Magistrate but to a police officer and although the complainant intended that action should be taken against the respondents, his request was directed to the Sub-Inspector. Oil receiving it the in-charge Sub-Inspector proceeded to investigate into the offence and the Sub-Inspector sent up a charge-sheet against the respondents. Even the original complaint was not forwarded to the Court with the charge-sheet; Therefore the Magistrate took cognizance of the offence not on the Havaldar's complaint, which was not even before him, but on a police report and this he had no jurisdiction to do. On this paint it is only necessary to refer to the decision fa - 'Lajja Ram v. The State' , where the question has been treated by the learned Judicial Commissioner at considerable length. With respect we are unable to agree with the decision in - 'AIR 1951 Sau 8 (A)'.
(5) The Advocate-General next contended that if there was an irregularity in the complaint, it was cured by Section 537, Criminal P. C. and referred to : AIR1943All6 , cited above. A compliance with the provisions of Section 195(1) is a condition precedent to the Court assuming jurisdiction and failure to comply with those provisions would vitiate the entire trial as without jurisdiction and it is doubtful whether Section 537 can be pressed into service to cure a defect of jurisdiction. Moreover assuming that the learned Advocate-General's contention is well founded it is fat no assistance to him. Section 537 comes into play, when in spite of a procedural irregularity the appellate Court confirms the order of the lower Court, as was so done in : AIR1943All1 , upon which the learned Advocate-General relied.
In that case in spite of there being no proper complaint before the Court, the High Court refused to set aside the conviction and sentence ssed by the Magistrate. The principle under-lying the section is that provided the order of the lower Court is substantially according to law and there has been no failure of justice, it should not be seti aside merely on the ground of a technical error in procedure. But it has no application when the Court is called upon to reverse the lower Court's order on the ground that the irregularity is not merely technical but is so substantial as to require reversal of the lower Court's order.
(6) The learned Advocate-General next contended that the respondent should have been convicted Under Section 332, IPC the offence under that Motion not being one for which the previous complaint is necessary Under Section 195(1), Criminal P. C. He relied upon - 'Basir-ul-Huq v. State of West Bengar : 1953CriLJ1232 . Their Lordships held in that case that where the same facts disclose two distinct offences, one of which cannot be tried without the required complaint, the absence of such complaint will not bar the trial of the other offence. But their Lordships also held that where the facts disclosed primarily and essentially an offence for which a complaint by a public servant is required, the section cannot be evaded by prosecuting the accused for the other I offence. The very act of obstruction in this case toy in the assault and the hurt to complainant land the offence primarily committed was under Section 186, IPC and to convict the respondents for the offence Under Section 332, IPC would be tantamount to holding them guilty of the offence Under Section 186, IPC and then convicting them of the offence Under Section 332, IPC Under the circumstances we cannot accede to the learned Advocate-General's contention. It is open to the prosecution to regularise the proceedings by filing a fresh complaint against the respondents.
(7) However we agree with the ground mentioned in the memo of appeal that the order of acquittal was not a proper order. The Magistrate having taken cognizance of the offence in the absence of a proper complaint, all the subsequent proceedings were void and the proper order would' have been to return the charge-sheet to the police. 1 We accordingly set aside the Magistrate's order of acquittal and quash the proceedings.
(8) I agree.