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PETITIONER: DAULAT RAM

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 25/01/1962

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1962 AIR 1206            1962 SCR  Supl. (2) 812

ACT:      Prosecution-Cognizance-Complaint  in  writing by  the  Public  Servant  concerned-If  incumbent- Indian Penal Code, 1860 (Act XLV of 1860), s. 182- Code of  Criminal Procedure, 1898 (Act V of 1898), s. 195.

HEADNOTE:      The appellant a Patwari wrote 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  investigation,  the allegations were  found to be false. The Tehsildar 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  s.  195  of  the  Code  of  Criminal Procedure was made by the Tehsildar 813 as the public servant concerned in the case, but a charge sheet  was put  in by  the police attaching the letter of the Tehsildar 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  cognizance 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.

JUDGMENT:

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    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. 1445 of 1959.      V. D, Mahajan, for the appellant.      B. K.  Khanna, D.  Gupta and P. D. Menon, for the respondent.      1962. January  25. The  Judgment of the Court was delivered by      HIDAYATULLAH, J.-This  is an  appeal  by  one Dault 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  at Chandigarh was dismissed in limini; but he obtained special leave 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 Raj who  beat  him  severely  and  robbed  him  of certain of  his official  papers and  some  money, which was with him, partly belonging to 814 him and  partly to  the Government.  At the end of the letter  which he  wrote to  the Tehsildar,  he stated  that   the  letter  was  written  for  his information. The Tehsildar, however, forwarded the letter to  the Sub-Divisional  Officer who  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 the 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 money, 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 the  Indian Penal  Code, and  after due trial, the  appellant was  found  guilty  of  that offence  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 case is whether a complaint in  writing as  required by  s. 195  had been presented  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, the  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 offences under the Penal Code and he had moved his superior officer for  action  even  though  he  might  have stated in  the letter  that it  was only  for  his information. We  are prepared  to assume  that  he expected that 815

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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 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; The  words   of  the  section,  namely,  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 must 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 appellant had  moved  the  Tehsildar  for  action. Section 182  does not  require  that  action  must always be 816 taken if  the person  who moves the public servant knows or  believes that  action would be taken. In making his  report to  the Tehsildar therefore, if the appellant  believed that  some action would be taken (and he had no reason to doubt that it would not) the  offence under that section was complete. It was therefore incumbent, if the prosecution was to be  launched, that  the  complaint  in  writing should be  made by  the Tehsildar  as  the  public servant concerned  in this case. On the other hand what we  find is that a complaint by the Tehsildar was not  filed at  all, but a charge sheet was put in by  the  Station  House  Officer.  The  learned counsel for  the State Government tries to support the action  by submitting  that s.  195  had  been complied with inasmuch as when the allegations had been disproved,  the letter  of the Superintendent of Police  was forwarded  to the  Tehsildar and he asked for "a calendar". This paper was flied along with the  charge sheet  and it is stated that this satisfies the  requirements  of  s.  195.  In  our opinion, this  is not  a due  compliance with  the provisions  of  that  section.  What  the  section comtemplates is  that the  complaint  must  be  in writing by  the public servant concerned and there

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is no  such compliance  in the  present case.  The cognizance  of  the  case  was  therefore  wrongly assumed by  the court  without  the  complaint  in writing of the public servant namely the Tehsildar in  this   case.  The   trial  was   thus  without jurisdiction ab inito and the conviction cannot be maintained.      The  appeal  is  therefore  allowed  and  the conviction  of  the  appellant  and  the  sentence passed on him are set aside.                                    Appeal allowed. 817