1989 P Cr (PLP)

7. The question that now, therefore, needs consideration is as to whether the cognizance has been taken in the case and the trial has been started by the trial Magistrate without a written complaint by the public servant? For the proper resolution of the point involved, it will be helpful to have a reference to the challan or the report made under section 173, Cr.P.C.by the police to the Court concerned It has expressly been stated by the Police Officer who submitted this report in the competent Court, that on a written report made by the complainant on 19-9-1986, it has been stated that the accused-petitioner, the allottee of the Plot No33-B in Sector A-4, Mirpur, by starting construction without approval of map and without permission for construction acted in violation of the order of the District Magistrate promulgated under section 144, Cr.P.C. On receipt of this report investigation ~ been conducted and it has been found that the accused-petitioner has committed offence under section 188, P.C. A request was, therefore, made to initiate legal proceedings and to try the accused for the offence charged. At the end of this report S.H.O. city Police listed the detail of the documents filed alongwith this report. In the list altogether 11 documents are shown to have been filed alongwith the challan the detail of which is:- (1) ?????? Report under section 173, Cr.P.C. or the challan form???? ??????????? One leaf. (2)??????? Written application:?????? ??????????????????????? ??????????????????????? ??????????? ??????????? One leaf. (3) ?????? Order of the District Magistrate issued on 15-8-1986 under No. 42-1532.?? ??????????????????????? ??????????? ??????????? One leaf. (4) ?????? Site plan alongwith the explanatory note.???????????????? ??????????? ??????????? One leaf. (5) ?????? Bail order and bail bond.?????????????? ??????????????????????? ??????????? ??????????? Two leaves. (6) ??????????? Property sheet.???????????? ??????????????????????? ??????????????????????? ??????????? ??????????? One leaf. (7) ??????????? Certificate of the identity of the accused.?????????? ??????????????????????? ??????????? One leaf. (8) ??????????? Conviction slips of the accused.?????????? ??????????????????????? ??????????? ??????????? Three leaves. The list at the end then is signed by the Inspector City Police Station Mirpur. It is interesting to note that this list entered in the challan or the report made under section 173, Cr.P.C. makes no mention of the document, which, according to the learned Sub-Divisional Magistrate, is a complaint made by the District Magistrate. There is no mention of this alleged complaint in the final report which was submitted before the trial Court and on the basis of which the learned f trial Magistrate assumed the cognizance of the case nor is there any mention of it in the list of documents mentioned in the report that were filed alongwith this challan. This document also bears no date. Besides, perusal of it makes it is abundantly clear that it is not a complaint made to a competent Court with a view to initiate proceedings but as appears from the contents of it, it merely authorizes or is permission for initiating such proceedings in the competent Court. It is not even addressed to any Presiding Officer of any Court or the competent Court.

8. The proposition may yet be looked from another angle. Even if it be assumed that this document had been filed by the police while submitting the challan before competent Court still it cannot be construed as a complaint made to any Court for starting any proceedings. At the best it can be taken as an authority to the police to file challan. So this in turn can be said as delegated authority. The proposition even when considered from this angle, it appears, confers no authority on the trial Magistrate to take cognizance in the case as the requirement of law expressly laid down in section 195, Cr.P.C. is a written complaint by the public servant concerned himself and not by any delegatee.

9. On careful consideration of the point, I am of the view that a complain: in writing by the public servant concerned is condition precedent for cognizance to be taken by a Magistrate of the offence mentioned in section 195 subsection 1(a), Cr.P.C. and that this condition must be strictly complied with. A complaint not by the public servant concerned himself or by someone to whom he is subordinate but by a person who is merely authorized in writing to file a complaint in his own name is not a good substitute for the requisite complaint so as to confer jurisdiction upon the Magistrate. Section does not permit any delegation of authority by the public servant concerned. The proposition came to be considered in Krishna Tuka Ram v. Secretary of Chief Minister A I R 1955 Bom.

315. In that case two persons sent a petition to the Chief Minister of Civil Supplies making allegations against a Jamadar to the Chief Minister. Thereafter the Secretary to the Chief Minister filed a complaint under section 182, read with section 34, A.P.C. charging those who filed the petition with giving false information to the Minister intending him to punish Jamadar concerned or with the intention that the Minister should use his awful authority as a public servant for the injury and annoyance of his subordinate who was complained against. An authority signed by the Minister authorising the Secretary to file the complaint was objected to on the ground that he had no complaint signed by the proper public servant namely the Chief Minister before him. The Magistrate overruled this objection holding that the word `complaint' in section 195, C.P.C. was not used in the technical sense in which it was used in section 4 and that the Chief Minister if authorised his Secretary to file the complaint, the prosecution was not really at the instance of some other person. While considering the proposition it was held by the Court that the section does not permit delegation of this authority. The provision in fact requires that the complaint in writing must be by the public servant concerned or his superior and this condition was to be strictly complied with.

10. In the present case, as already observed in earlier part of this order, the investigation had been started by the police on the complaint made by the Assistant Estate Officer, Municipality, Mirpur and not by the District Magistrate. Again the cognizance was taken by the learned Sub-Divisional Magistrate not on the complaint made by the District Magistrate but on submission of a challan by the police. As regards the point of delegation even that is of no assistance because the final report requesting the Court to try the accused-petitioner or the challan thus submitted after completion of the investigation does not even make any mention that it is being submitted on the authority or under the direction of the District Magistrate.

11. For the afore-stated reasons I find that the cognizance has been taken by the trial Court without lawful authority. The proceedings thus taken by the trial Court in this case are quashed for having been taken without lawful authority. S.A./352/HCA ??????????????????????? ??????????????????????? ??????????????????????? ??????????? Proceedings quashed.