1. This is a reference by the Additional Sessions Judge at Palanpur against the order of the Judicial Magistrate First Class, Abu Road, in connection with a criminal case pending before the Judicial Magistrate. It has come to us as it relates to the Abu area which has been integrated with Rajasthan under the States Reorganisation Act.
2. The facts of the case are briefly these. Sindhi Nathuram Atmaram is said to have gone to the office of the Administrator of the Abu Road Municipality at about 1 P. M on the 16th of January, 1956, and obstructed the Administrator in the discharge of his official duties and threatened him. On this, the Administrator reported the matter to the Sub-Inspector concerned.
The Sub-Inspector investigated the case and made a complaint to the Magistrate against the accused. When the accused appeared in Court he raised an objection that in view of Section 195 (1) (a) of the Code of Criminal Procedure the Magistrate had no jurisdiction as no complaint had been made by the public servant concerned in writing or by anyone superior to the public servant. The Magistrate overruled this objection. Thereupon, there was a revision by the accused before the Additional Sessions Judge and that is how this reference has been made by him.
3. Section 195 (1) (a) of the Criminal Procedure Code reads as follows :
'No Court shall take cognizance 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.'
4. Reading this section as it stands the plain meaning to our mind is that a Court can only proceed to try a person of an offence punishable under Section 172 to 188 of the Indian Penal Code if there is a complaint in writing before it either of the public servant concerned or of some other public servant to whom he is subordinate.
The definition of 'complaint' can be found out by looking at Section 4 (1) (h) of the Code of Criminal Procedure. Clauses (b) & (c) of Section 195 (1) also speak of a similar complaint in writing and we have no doubt that the meaning of these clauses is that there should be acomplaint in writing before the Court which is to take cognizance, either of the public servant concerned or of his superior or of the Court concerned or of the superior Court.
The reason for this provision in Section 195 is that in this class of cases the legislature intended that the Court should only take cognizance when there is a formal complaint in writing before it of the person concerned and not otherwise. Some High Courts have however taken the view that the words 'complaint in writing' appearing in Section 195 (1) (a) do not refer to a 'complaint' as denned in Section 4 (1) (h) of the Criminal P. C., and what they really mean is that the proceedings culminating in a complaint or challan before the Court should have been started at the instance of the public servant concerned or of his superior.
If this was the intention of the legislature, there was in our opinion no use in providing Section 195 (1) (a) for nobody would think of filing a complaint or presenting a challan to a Court of matters covered by Section 195 (1) (a), if the public servant concerned had no grouse, if we may use this colloquial word in this connection.
Therefore when the words 'complaint in writing' appear in Section 195 (1) (a), they refer to la formal complaint as denned in Section 4 (1) (h). We should have thought that much argument was not required to come to this conclusion; but as some High Courts have taken what is called a liberal view, we may refer to the decisions of various High Courts in India on this point.
5. In Banshilal Dukhiram v. The State, AIR 1954 Nag 30 (A), the Nagpur High Court has taken the view that the words 'complaint in writing' in Section 195 (1) (a) mean a formal complaint as required by Section 4 (1) (h). In Makaradhwaj Sahu v. The State, AIR 1954 Orissa 175 (B), the Orissa High Court has also taken the same view.
In Krishna Tukaram Jadhav v. The Secy, to the Chief Minister, Bombay, 57 Bom L R 151 : (S) AIR 1955 Bom 315) (C), the Bombay High Court has also held that these words mean that there should be a formal complaint as defined in Section 4 (1) (h) of the Criminal P. C. in order to give jurisdiction to the Court to hear a case which is covered by Section 195 (1) (a).
6. In all these cases there was no complaint in writing before the Court by the public officer concerned or his superior. There was either a police report or a complaint by somebody other than the public officer and it was held that this was not enough. We now turn to the two cases in which what is called a liberal view has been taken.
In Barkat, v. Emperor, AIR 1943 All 6 (D), Allsop J. took the view that the words 'complaint in writing' do not mean a formal complaint within the meaning of Section 4 (1) (h), but meant merely this that the public officer concerned should complain of the matter to begin with to somebody and that if thereafter the case reached the Court, there would be no want of jurisdiction in it.
He relied on the definition of Section 4 (1) (h). which says that unless a different intention appears from the subject or context a complaint would have the meaning given there. The difficulty that he felt was that if a complaint was required in every case, it would be possible for any person to obstruct any police officer in the execution of his duty without rendering himself liable to punishment under Section 186, Penal Code.
He arrived at this conclusion on the reasoning that the definition of the word ''complaint' excludes the report of a police officer and he seems to think that every paper put in by a police officer in Court must be deemed to be a report and therefore a police officer can never make a complaint. He has not said so in so many words but this must be the idea behind.
With respect, we cannot understand why a police officer cannot make a complaint in Court if he is obstructed in the execution of his duties. He is certainly entitled to make a complaint in Court and his complaint in the circumstances would not be a report but a complaint under Section 4 (1) (h). We are, therefore, of opinion that the view taken by Allsop J. is not borne out by the clear words of Section 195 (1); (a) and the difficulty which compelled him to give a liberal interpretation to these words is really no difficulty.
7. We may further point out that the view taken by Allsop J. is against an earlier view of the Allahabad High Court in Lakhan v. Emperor, AIR 1936 All 788 (E). In that case there was a difference of opinion between Sulaiman C. J. and Bennet J. Bennet J. seems to have taken the view which later found favour with Allsop J. But Sulaiman C. J. was of the view that a complaint in Section 195 (1) (a), means a complaint within the meaning of Section 4 (1) (h).
As there was a difference of opinion between the two Judges, the matter was referred to Rachhpal Singh J. who took the same view as Sulaiman C. J. Rachhpal Singh J. pointed out that a police officer can make a complaint and indicated the manner in which it can be done. The difficulty, therefore, which Bennet & Allsop JJ. felt in the matter is, no difficulty.
8. Another case which followed the view of Allsop J. is State v. Nandlal Karunashankar, AIR 1951 Sau 8 (F). This is a division bench case and it has merely relied on Barkat's case (D). It is enough to point out that the same Court did not follow this division bench ruling in State v. Kathi Unad Ranning, (S) AIR 1955 Sau 10 (G).
9. Finally, we may say that we have no doubt that the complaint in writing within the meaning of Section 105 (1) (a) means what it says, namely, a complaint within the meaning of Section 4 (1) (h) of the Criminal Procedure Code and in writing. In this view of the matter the Magistrate at Abu had no jurisdiction in this case as there was no complaint in writing before him by the Administrator of the municipality who was the public servant concerned.
As for the charge under Section 506, I. P. C. itarises out of the same facts and we think it improper that the complaint should proceed under Section 506, when the Magistrate has no jurisdiction over the main offence that has been committed.
10. We therefore accept the reference andquash the proceedings pending before the Magistrate at Abu. We may point out that it is stillopen to the Administrator concerned to file acomplaint if he so desires.