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PETITIONER: BHOLANATH AMRITLAL PUROIHIT

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT: 14/08/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. DUA, I.D.

CITATION:  1971 AIR  194            1971 SCR  (2) 817  1970 SCC  (2) 414

ACT: Indian  Post  Office Act, 1898 (6 of 1898).  s.  72--Section requiring complaint for offence covered by s. 55 to made  by order  of or under authority from Director-General  or  Post Master General--Information about offence under s. 55  given by  postal  authorities to police--Report under s.  173  Cr. P.C.  submitted  by police  after  investigation--Magistrate taking cognizance of offence--Trial whether invalid for  non compliance with s.72 of Post office Act.

HEADNOTE: The  appellant  was  tried and  convicted  by  the  Judicial Magistrate  1st Class Broach under s.55 of the  Indian  Post Office Act, 1898.  In appeal the conviction was affirmed  by the Sessions Judge.  The revision petition in the High Court failed and appeal with certificate was filed in this  Court. The  conviction  was  challenged  on  the  ground  that  the appellant’s  trial was illegal as the case against him  had not  proceeded on the basis of a complaint made by order  of or under authority from the Director General or Post  Master General as required by s. 72 of the Indian Post Office  Act, the  same having been taken cognizance of on the basis of  a police report under s. 173 of the Code of Criminal Procedure after investigation.under Ch.  XIV (Part V) of that Code. HELD : The expression complaints is not defined in the Post Office  Act but the complaints contemplated under  s.55  is one  that initiates a prosecution on the basis of which  the accused if found guilty is punishable with imprisonment  for a  term )Which may extend to two years and also  with  fine. That  being so the expression complaint in s.72  cannot  be equated  to mere information or accusation.  The context  in which the expression is used in s. 72 indicates that it is a formal   document  indicting  an  officer  of   the   postal department for a criminal offence.  The purpose behind  s.72 is  that  officials of the postal department should  not  be harassed with frivolous prosecutions and that before any  of the  prosecutions  contemplated  by s.72  is  launched,  the authorities mentioned in that section should have   examined the   appropriateness   of  launching  a   prosecution   and either    file  a  complaint  themselves  or  authorise  the

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filing of such a complaint.   Such a requirement will not be satisfied if the concerned authorities merely ask the police to  investigate into the case and take  appropriate  action. An  information  laid before the police or even  a  sanction granted  for a prosecution by the police would not meet  the requirement of s.72. [819 F-H] If  the legislature contemplated that a mere information  to the  police by the appropriate authority is sufficient  then there  was  no need to enact s.72. Further if all  that  was required  was to obtain sanction of the concerned  authority then the legislature would have enacted a provision  similar to s. 197 of the Cr.  P.C. The fact that the legislature did not  choose  to adopt either of the  two  courses  mentioned above is a clear indication of the fact, that the mandate of s.  72  is  that  there should  be  a  formal  complaint  as contemplated by s. 4(1) (b) of the Criminal Procedure Code. [820 A-H] Since  there was no such complaint in the present  case  the magistrate was incompetent to take cognizance of the offence and  the  appellants  trial  was  invalid  The  appeal  must accordingly be allowed. [820 D] up.CI(P)/71-8 818 Emperor  v.  Rohini  Kumar Sen X Cal.   Weekly  Notes  1029; Gnana  Prakasam Baranahas v. State I.L.R. [1953]  T.C.  600; Narotamdas Bhikabai v.   State of Gujarat (1962) 2 Cr.  L.J. 165; and Alubhai Mujabhai v. State of Gujarat 7 Gujarat  Law Reporter 698; referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No.  43  of 1967. Appeal from the judgment and order dated August 29, 1966  of the Gujarat High Court in Criminal Revision Application  No. 291 of 1966. H.   K. Puri, for the appellant. K.   L. Hathi and R. H. Dhebar for the respondent. The Judgment of the Court was delivered by Hegde,  J  The  appellant was tried  and  convicted  by  the Judicial Magistrate 1st Class, 1st Court, Broach under s. 55 of  the  Indian  Post Office Act, 1898  (to  be  hereinafter referred  to  as the Act) and sentenced to  suffer  rigorous imprisonment for one month and to pay a fine of Rs. 100/- in default to suffer rigorous imprisonment for three weeks.  In appeal that conviction was affirmed by the learned  Sessions Judge,  Broach.   In his revision petition before  the  High Court of Gujarat, the principal contention taken by him  was that  the  learned  magistrate was  not  competent  to  take cognizance of the case against him as there was no complaint as required by s. 72 of the Act.  The revision petition  was admitted  for hearing and notice issued to  the  respondent’ but when the matter came up for hearing before Raju J., the. learned  judge  rejected the revision  petition  with  these cryptic remarks :               "Heard the learned Counsel for the petitioner.               I  do  not  wish  to  exercise  my  revisional               jurisdiction in this matter." Thereafter  this  appeal  was  brought  after  obtaining a certificate from the High Court under Art.134(1) (c) of  the Constitution. The learned Counsel for the appellant, Mr. H. K. Puri  chal- lenged  the conviction of the appellant on the  sole  ground that  the appellant’s trial was illegal as the case  against

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the appellant was not proceeded on the basis of a  complaint made  by  order  of, or under authority  from  the  Director General  of Post Master General as required by s. 72 of  the Act.  The  case against the appellant was taken cognizance of  on the  basis  of a report by the police under s.  173  of  the Cr.P.C. after making an enquiry under Ch.  XIV(Pt.V) of that Code.  It 819 is  true that the investigation of the case was launched  on the   basis   of  the  information  given  by   the   postal authorities.  We shall even assume that the investigation in question  was  made  after obtaining  the  sanction  of  the concerned  Post Master General as contended by  the  learned Counsel for the respondent. Section 55 of the Act reads thus :                "Whoever,  being  an officer  of  the.   Post               Office entrusted with the preparing or keeping               of  any  document, fraudulently  prepares  the               document incorrectly,  or alters or secretes               or destroys the document, shall be  punishable               with imprisonment for a term which may  extend               to  two  years, and shall also  be  punishable               with fine.               In brief the accusation against the  appellant               is  that  he  fraudulently  prepared   certain               documents  in  the post office  where  he  was               serving as a delivery clerk.               Section 72 of the Act prescribes               "No Court shall take cognizance of an  offence               punishable  under  any of  the  provisions  of               sections 51, 53, 54, clauses (a) and, (b), 55,               56, 58, 59, 61, 64, 65, 66 and 67 of this Act,               unless  upon  complaint made by order  of,  or               under authority from, the Director General  or               a Post Master General." The  question for consideration is whether there is  such  a "complaint" in this case ? The expression "complaint" is not defined in the Act but the complaint" contemplated under s. 55 is one that initiates a prosecution on the basis of which the accused if found guilty is punishable with  imprisonment for  a  term which may extend to two years and also  with  a fine.   That  being so the expression "complaint" in  s.  72 cannot  be equated to mere information or  accusation.   The context in which that expression is used in s. 72  indicates that  it is a formal document indicting an officer  of  they postal  department  for  a criminal  offence.   Ile  purpose behind  s.  72 is that officials of  the  postal  department should not be harassed with frivolous prosecutions and  that before  any  of the prosecutions contemplated by  s.  72  is launched,  the authorities mentioned in that section  should have   examined   the appropriateness  of   launching a prosecution   and  either  Me  a  complaint  themselves   or authorise  the  following  of  such  a  complaint.   Such  a requirement will not be satisfied if the concerned  authori- ties merely ask the police to investigate into the case  and take  appropriate  action.  An information laid  before  the police  or even a sanction granted for a prosecution by  the police  would  not meet the requirements of s. 72.   If  the legislature contemplated 820 that  a mere information to- the police by  the  appropriate authority  is sufficient then there was no need to enact  S. 72.   Further  if all that was required was  to  obtain  the sanction  of  the concerned authority then  the  legislature

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would  have enacted a  provision similar to s. 197  of  the Cr.P.C.  The  fact that the legislature did  not  choose  to adopt  either of the two courses mentioned above is a  clear indication  of  the fact that the mandate of s. 72  is  that there  should be a formal complaint as contemplated  by  s. 4(1) (h) of the Criminal Procedure Code which says :               "’Complaint’ means the allegation made, orally               or  in writing to a Magistrate with a view  to               his  taking action under this Code, that  some               person whether known or unknown has  committed               an offence, but it does not include the report               of a police officer." If we understand the word complaint’ in s. 72 of the  Act as defined under s. 4(1) (h) of. the Cr.P.C., as we think we should, then there was admittedly no complaint’ against the appellant  which  means  that  the  learned  magistrate  was incompetent  to take cognizance of the case.  From  that  it follows  that the trial of the case was an invalid  one  and that  the appellant was convicted without the  authority  of law. The meaning of the word "complaint" in s. 72 of the Act  had come  up for consideration before several High Courts.   The conclusion  reached by those High Courts accords  with  that reached by us.  As far back as 1906 the meaning of the  word "complaint"  in s. 72 of the Act came up before  a  Division Bench of the Calcutta High Court in Emperor v. Rohini  Kumar Sen The Court held that the prosecution therein was vitiated because of the failure to comply with the requirements of s. 72  of the Act.  A similar view was taken by the  Travancore Cochin  High Court in Chanaprakasam  Baranabas.v.  State(2). Raju  J. himself took that view in Narotamdas Bhilkhabai  v. State  of  Gujarat(3).  That decision, was rendered  by  the learned judge on September 2, 1963.  The same view was taken by  another  bench  of the Gujarat  High  Court  in  Alubhai Mujabhai v. State of Gujarat(4).  No contrary decision.  was brought to our notice. For  the reasons mentioned above we allow this  appeal,  set aside the conviction of, the appellant and acquit him.   The fine  levied  if it bad been recovered from  the,  appellant will be refunded to him. G.C.                                Appeal allowed (1)  x Cal.  Weekly’ Notes 1029. (2)  I.L.R. 1953 T. C. 600. (3)  (1962) 2, Cr. L.  J. 165. (4)  7 Gujarat, Law Reporter 698. 821