ZfU

Ktiltlr ~.,~ s;.1~

v. llwl of Billar

sw..c. J.

11/Gt

Jnuary 16.

812 SUPREME OOURT REPORTS [1962) SUPP.

therefore, that cl. (2) of Art. I 9 olearly eaves thA section from the vice of unconstitutionality.

It has not ben contended hefore us on behalf of the appellant in C.A. 169 of 1957 or on behalf of the respondents in tho other appeals (No. 124·126 of 1958) that the words used by them did not come within the purview of the definition of sedition as interpreted by us. No arguments were advanced before us to show that even on the interpreta.tiop given by us their cases did not come within tho mischit>f of the one or the other section, as the CiUlll may be. It follows, therefore, that the Criminal Appeal Hi!J of 195i has to be dismissed. Criminal Appeals 124-126 of 1958 will be remanded to the High Court to pa.ss such order as it thinks fit awl proper in the light of the interpretation given by us.

Appeal No. 169 of 1957 dismissed.

Appeal~ Nos. 124 lo 126 of 19ii8 all, owed.

DAULATRAM v.

STATE OP PUNJAB

(J. L. KAPUR, 111. HIDAYATULLAH and RAGllUDAR

DAYAL, JJ.)

Pro-ecution-Cognizance-Comp!aint in writing liy thf Public Sen'<lnt concerned-If incumbent--Indian l'enal CO<k,

1860 (Act XLV of 1860), s. 182-Code or Criminal Proc.dure, 11!.?8 (Act F of 1898), •· 11/5.

The appellant a Patwari WTote a letter to the Tehsildar under whom he was working that he had been robbed of certain official papers and money. The police reported that on invcstigationt the allegations were found to be falst":.

The Tchsi1dar asked the police that a "calendar" be drawn up.

The police launched a prosecution under s. 182 of the Indian

Penal Code. No complaint in writing as required by 1. 195 of the Code of Criminal Procedu1 e was made by the Tchsildar

as the pubHc servant concerned in the case, but a charge heet was put in bv the police attaching the letter of the Tehs1ldar asking them 'to draw up a "calendar" against the appellant.

Held, that in a prosecution to be launched under s. 195 of the Code of Criminal Procedure, it is incumbent that a complaint in writing should be made by the public servant concerned for only on such complaint can the court take cogniz"ncc of the offence otherwise the trial is without jurisdiction ab initio.

Held, further, that s. 182 does not require that an action must always be taken on the report made to the public servant, the offence is complete as soon as the report is made and the person who made the report believed that some action would be taken.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 126 of 1960.

Appeal by special leave from the Judgment and order dated November 23, 1959, of the Punjab High Court in Criminal Revision No. 1445of1959.

V. D. Mahajan, for the appellant.

H. K. Khanna, D. Gupta and P. D. Menon, for the respondent.

1962. January 25.

The Judgment of the Court was delivered by

196S

Daulat Rt1trr

•• Stai. of Punjab

HIDAYATULLAH, J.-This is an appeal by Bidayalullah J, one l>ault Ram who was prosecuted under s. 182 of the Indian Penal Code and sentenced to imprisonment for three months. His revision application in the High Court of Punjab a.t Chandigarh

was dismissed in limini; but he obtained special

le:ive from this court and has filed this appeal.

The appellant was working as a Patwari and on August 19, 1958, he wrote a letter to the Tehsildar of Pathankot that on the previous day he had been set upon by two persons Hans Raj and Kans .Haj who beat him severely and robbed him of oertai.n of his official papers and some money, which was with him, partly belonging to

J3dl

D...UI Ram v.

SIW of l'unjoi

Hi'9<1ullali J.

814 SUPREME COURT REl>ORTS [1962] SUPP.

hi~ and partly to the Government. At the end of the letter whirh he wrote to the Tehsildar, he stated that the lct.tc-r was written for his information. The TehRildar, however, forwarded the letter to the i3ub-Divisional Offietr v. ho in his turn sent it on to the police. The police enquired into the facts and reported that the allegations in letter were false. :Meanwhile, it appears that th~ appellant entered into some sort of compromise with Hans Raj and Kans Raj and wrote another letter saying_ that as they were his relatives and he had found the papers and mc, ney, the proceedings if any be dropped and the papers be consigned to the record room.

The matter however was pursued further and when the report of the police came that the allegations in the original letter were false, the Tehsildar asked the police that a "calendar" be drawn up. The police however launched a prosecution against the appellant under s. 182 of tho Indian Penal Code, and after due trial, the appellant was found guilty of that off••noe and was sentenced to three months' rigorous imprisonment.

His appeal and revision failed and we have been informed that the appellant has served out his entire sentence.

The only question in this caRe is whether a complaint in writing as required by s. 195 had been preRented by the public servant concerned.

The public servant who was moved by the appellant was undoubtedly the Tehsildar. Whether the appellant wanted the Tehsildar to take action or not, tLe fact remains that he moved the Tehsildar on what is stated to be a false averment of facts.

He had charged Hans Raj and Kans Raj with offenoee under the Penal Code and he had moved his superior officer for action oven though he might havo stated in the letter that it was only for his information.

We are prepared to assume that ho expected that

some action would be taken. In fact his second letter that he had compromised the matter and the proceedings might be dropped clearly shows that he anticipated some action on the part of his superior officer. The question is therefore whether under the provisions of s. 195, it was not incumbent on the Tehsildar to present a complaint in writing against the appellant and not leave the court to be moved by the police by putting in a charge sheet. The words of s. 195 of the Criminal Procedure Code are explicit. The section reads as .follows:

" (1) No Court shall take cognizance- ( a) of ariy 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;

The words of the section, nam1>ly, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court mulilt be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of s. 195.

The words "no court shall take cognizance" have been interpreted on more than one occasion and they show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the section.

Now the offence under s. 182 of the Penal Code, if any, was undoubtedly complete when the appel- .

Jant had moved the Tehsildar for action. Section 182 does not require that action must always be

Jfft

Dau/al Ra111

•• Stal< of PtlnjU

H idayatullale J.

19H D..,., a.,.

S*' q/ Punjo/J

Hidlo.J01tllloh J.

816 S"CPREME COURT REPORTS [1962] SUPP.

taken if the peron who moves the publio servant knows or believes that action would be taken. In making hiR report to the Tehsildar therefore, if the appdl1tnt believed that some action would be

tak<"n ( ; UHi IH' lwl no rc1so11 to doubt that it woulJ not) the offence under that section was compld<-.

It was therefore incumbent, if the pro- 80Cution waH to !.o launched, that tho complaint in writing , hould be made by the Tehsildar as the public ~"rvant concerned in this case. On the othn hand what we find is that a complaint by the Teh, ildar was nut filed at all, but a charge sheet was put in br the Station House Officer. The lcarnc<I counsel for tht> State Government tries to support the actior1 by submitting thats. 1!!5 had been complied with inasmuch as when tho allegations hail l1e11n disproved, the letter of the Superintend<nt of Police was forwarded to the Tchsildar and ill' ao<kcd for "a calcndur". This paper wae filed along "it h t lw 1harge shet-t and it is Rtatcd that this satisfier; th" n'luirPmenlH of s. H!5.

In our opinon, t.his is 11ol a du" compliance with the provisions of ;; Ital sectio11.

What the st'ction <'Om tcmµlatls is that the complaint must be in writing by the publir: servant concerned and there is no 8U<:h compliw IC!! in the present case. The cogni zancc of the case was therefore 1nongly assumed by the court without the complaint in writing of the public Hcrvi: .:t namely the TehHildar in this C118e. The trial waii thus without juriR<liction uu initio and the conviction cannot be maintained.

The appeal is therefore allowed and the conviction of th" appellant an<! the sentence passed

on him are Het a•ide.

Appeul all-Owed.