P L D 1963 (W (PLP)

" Complaint received from Special P: P. and filed in the Court of City Magistrate, Hyderabad duly signed by I Additional Sessions Judge, Hyderabad in the capacity of a com plainant. This case in view of the complaint is disposed of. (Sd.) Senior Special Judge, Hyderabad." The complaint which is on record bears the date 29‑9‑

60. That evidently is the date on which it was typed in the office of the Special Public Prosecutor. It bears the signature of Mr. Hamzo Khan M. Qureshi, as a complainant, who had succeeded Mr. Qadri as the I Additional Sessions Judge, Hyderabad. This complaint, it appears reached the Court of the City Magistrate on 10‑10‑60.

4. There were two accused persons in the complaint filed before the City Magistrate. These were Mooso, the present petitioner and Ghulam Hyder Shah, the Mukhtiarkar. The case appears to have been transferred to the Court of the Sub‑Divisional Magistrate, Hyderabad, who tried it and by his judgment dated 9‑1‑62, convicted the applicant Mooso under section 193, P. P. C. and sentenced him to 4 months' rigorous imprisonment and Rs. 200 fine. The other accused Ghulam Hyder Shah was acquitted for want of a proper sanction. Mooso appealed and as has been said earlier his appeal was dismissed by the Additional Sessions Judge, hence this revision.

5. The only point which has been urged before me by Mr. Muhammad A. Memon, the learned Advocate for the applicant Mooso, is that the whole proceedings are vitiated because of the disregard of the provisions of section 476, Cr. P. C. and that the complaint in this case was not competent.

6. It would now be convenient to reproduce the material part of section 476, Cr. P. C :‑ "476. (1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, subsection (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction . . . . ." The offence under section 193, P. P. C., is one of those offences which are mentioned in section 195 (1) (b) of the Code. This section provides that no Court shall take cognizance of any offence punishable under any of the sections mentioned therein when such offence is alleged to have been committed in, or in relation to any proceedings in any Court, except on the complaint in writing of such Court or of some other Court, to which such Court is subordinate. There is thus a bar under section 195 of the Code against the taking of cognizance in respect of an offence under section 193, P. P. C., except upon the conditions laid down in that section. The complaint contemplated by section 195, is made as a result of the proceedings under section

476. This section provides that when a Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195 (1) clause (b) or (c) in relation to a proceedings in that Court, such Court may after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint in writing signed by him and forward the same to a Magistrate having jurisdiction. The preliminary inquiry before the recording of the finding, strictly speaking according to the statute, is optional, but generally such an inquiry has to be made to enable the person, if he can, to explain his position both with regard to the alleged offence which appears to have been committed and also in relation to the essential consideration contemplated in this section, namely, whether such an inquiry is expedient in the interest of justice. But even if such preliminary inquiry is dispensed with, there can be no escape from the requirement of the section as to the recording of the finding. This necessarily involves the application of the mind of the Court concerned to the question whether the holding of an inquiry into the offence by a Magistrate is expedient in the interests of justice. It is not in every case where an offence such as mentioned in section 195 appears to have been committed that a complaint must be made. The Court before whom such an offence appears to have been committed has to address itself to the question whether such an action having regard to all the circumstances of the case is expedient in the interest of justice.

7. In the present case, as would appear from the history of the proceedings which has been referred to earlier, the offence, if any, would appear to have been committed in relation to the proceedings in the Court of the I Additional Sessions Judge, Hyderabad before whom the affidavit of the petitioner with regard to his ownership of property was filed. That Court took no action. Then came the complaint of Muhammad Hashim. This complaint was directed against the two public servants, namely the Mukhtiarkar and his Serishtedar. In that complaint action was prayed only against these two public servants. It was for this reason that this complaint came before the Senior Special Judge. The Senior Special Judge sent the complaint for inquiry to the Anti‑Corruption Police and when they made a report they said that no cognizable offence had been made out, but an offence under section 193 etc., prima facie appeared to have been com mitted by Mooso and the Mukhtiarkar. The Senior Special Judge himself had no jurisdiction to make a complaint as con templated by section 476, Cr. P. C. But it is of interest to note that even he did not remotely apply his mind to the question whether the inquiry into the offence was expedient in the interests of justice. His order which has been reproduced earlier shows that he merely directed the Special Public Prosecutor, Anti- Corruption to draft a complaint ire terms of the opinion of the Circle Officer, Anti‑Corruption. The Special Public Prosecutor had nothing to do with this case as it did not fall under the Criminal Law Amendment Act of 1958. Then the order‑sheet of 8‑10‑1960, merely records the fact that upon receipt of the complaint from the Special Public Prosecutor the same hack beep filed in the Court of the City Magistrate, Hyderabad, signed by the I Additional Sessions Judge as a complainant. As far as the Additional Sessions Judge was concerned he did nothing else except the signing of the aforesaid complaint. There is no order in the record of the case by the Additional Sessions Judge to that effect and Ghulam Rasool, the clerk of the Court of the I Additional Sessions Judge, in his evidence, admitted this position. The requirement of law was that it was for the Additional Sessions Judge to apply his mind to the fundamental question whether an inquiry in the offence was expedient in the interests of justice. In fact, nobody did it. In view of the mandatory provisions of section 195 there is a bar against the taking of the cognizance of an offence mentioned in that section except upon a complaint in writing of the Court concerned, but before such a complaint is made the requirements of section 476 have to be met and a finding has to be recorded. Where this has not been done the foundation for the action is lost and the complaint, therefore, must be held to be incompetent. I have said enough to show that this would apply to the complaint in the present case.

8. Mr. Hyder Bux Sheikh, the learned counsel for the State, however, strenuously argued that such a challenge can only be made by an appeal provided under section 476‑B. His argument was that the Code provides a procedure for challenging such a complaint by an appeal under section 476‑B and if a person does not avail of that remedy it is not open to him to raise that question in an appeal or in revision against his conviction. He relied upon a Division Bench decision of the Dacca High Court in the case of Meezanur Rahman v. The State (P L D 1957 Dacca 142). In that case, certain accused persons in an inquiry were discharged and the Magistrate asked the complainant to show cause why he should not be prosecuted under section 211, P. P. C. The matter was taken to the Court of the Additional Sessions Judge who confirmed the order of the Magistrate and he also directed him to take action against all the prosecution witnesses under sections 192 and 193, P. P. C. The complaint came to be filed by one Mr. Obaidullah Magistrate and this ended in the con viction of the appellant. In appeal an argument was advanced that Mr. Obaidullah was not a successor in office of Mr. R. A. Khan and this was turned down by the Bench. The learned Judges then went on to make the observation upon which reliance is placed by Mr. Hyder Bux. This is what they said :‑ "Besides it is an admitted fact that the complaint filed against the appellant and the others is one under section 476 of the Criminal Procedure Code and the party aggrieved has a right of appeal under section 476‑B which was not availed of by this appellant. After the disposal of the case and after his conviction under section 193 he cannot be heard to say that his conviction under section 193 is not maintainable in law as the complaint filed against him was not made by the successor in office of the trying Magistrate." The learned Judges in taking this view relied upon two decisions of the Calcutta High Court Jabbar Ali and another v. Emperor (A I R 1929 Cal. 203) and Ali Ahmad v. Emperor (A I R 1932 Cal. 545). Another case relied upon by the learned counsel for the State is a Single Judge decision of the Lahore High Court Inayatullah v. Emperor (A I R 1927 Lah.379). In this case there was no separate order as contemplated by section 476 but the order was embodied in the complainant itself. Upon these facts it was held by the learned Judge that the embodying of the order under section 476 in the complaint and not recording it separately was a mere irregularity which was curable under section 537, Cr. P. C.

9. Another case cited before me is a Division Bench judgment of the Sind Chief Court Naraindas V. Gidwani v. Emperor (A I R 1943 Sind 157) in which a number of previous Indian decisions were reviewed. The question in that case was whether in an appeal under section 476‑B limitation began to run from the date of the signing of the complaint or from the date when the complaint was actually made in the Court of a Magistrate in pursuance of an order under section

476. It was held that the making of the complaint by the Court within the meaning of the words in section 476‑B is something antecedent to its despatch to the Magistrate and cannot therefore be taken later than its signature by the presiding officer of the Court. In another Division Bench decision of the same Court reported in the same Volume at page 96 it was held :‑ "The proper construction of section 478‑B is that an appeal against the complaint itself necessarily includes an appeal against the order finding that the complaint should be made, the two things, the order and the complaint made in pursuance of the order, being, for the purpose of appeal, part of the one thing. Before the Court can come to a proper decision as to what order should be passed under section 476‑B it must necessarily have before it the order of the Court under section 476, Criminal P. C., recording the finding in pursuance of which the complaint is made."

10. A Single Judge of the Allahabad High Court in the case Niranjan Lal Mittal v. Emperor (A I R 1944 All. 40), held that‑ "an appeal under section 476‑B can only be filed, therefore, from an order containing a complaint or from an order refusing to make a complaint giving reasons i.e., from an order equivalent to a judgment."

11. The difficulty with regard to the question of limitation in respect of appeal under section 476 B, Cr. P. C., arises from the language of that section. The entire case law on this point was reviewed in a Full Bench decision of the Punjab High Court Hakim Rai v. The State (A I R 1957 Pb. 134) which was relied upon by. Mr. Hyder. Bux. In this case it was held that in consonance with the principles of natural justice time in such a case would betaken to start from the day of the appellant's knowledge of the filing of the complaint. However, I am of the opinion that cases decided in relation to the question of limitation in appeals under section 476‑B cannot be of much assistance in the decision of a question such as arises in this case.

12. Let me now reproduce section 476‑B, because a part of the argument of Mr. Hyder Bux was based upon the language of that section :‑‑ "476‑B. Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under section 476 or section 476‑A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of section 195, subsection (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate Court might have made under section 476, and if it makes such complaint the provisions of that section shall apply accordingly." From the words "against whom such a complaint has been made" it was argued that the right of appeal is against the making of a complaint and, therefore, even if there is no order under section 476 it is merely a case of irregularity and it would still be open to a person against whom a complaint is filed to challenge D it by an appeal under section 476‑B and where he has not availed of this remedy he cannot be allowed to do so at the trial of the case or in an appeal or revision against his conviction. I do not agree. It is true that section 476‑B gives a right of appeal to the person against whom such a complaint has been made, but is this "complaint" to be understood independently of the order contemplated under section 476 under which the Court has to record a finding ? If the appeal was to be against the complaint only then the challenge must be to what is stated in the complaint. That would be about the merits of the case in which the Magistrate is required to hold an inquiry. It cannot be again said that the appeal contemplated by section 476‑B is against the finding which has been recorded under section 476, the essential part of which is a finding that the inquiry is expedient in the interests of justice though it is also open to the appellant to show that no offence "appears to have been committed." But Mr. Hyder Bux contends that even if there is no order under section 476 the accused must still file an appeal under section 476‑B. To that I say, appeal against what ? The words in section 476‑B "against whom such a complaint has been made" have been used in juxtaposition to the words immediately preceding viz., "has refused to make a complaint." The right of appeal was being provided in both the instances. The language of this section is not very happy, but there can be no doubt that in both the instances an order was clearly contemplated. For instance, where no order is passed refusing to make a complaint and the applica tion in that regard is dismissed for default or for non‑prosecution, can the person, who had applied, avail of the right of appeal under section 476‑B ? The answer must be in the negative because an appeal could only lie against an order refusing to l make a complaint. The same reasoning applies to the converse case. The "complaint" referred to in section 476‑B merely supplements the order contemplated under section 476, so as to give the right of appeal under section 476‑B. Till such a supplementing takes place the order may be said to be incomplete for the purposes of appeal under section 476‑B. But the order is the foundation of the complaint. The complaint is made as a result of the order. When there is no order, there is no founda tion for the complaint. Such a complaint must be treated as incompetent. The mere affixing of the signature of the Court does not make it valid. From what I have said, it must follow that the bar of section 195 was not removed in this case and the whole proceedings based upon such a complaint must be held to be without any legal sanction. I further hold that in a case in which no finding is recorded under section 476, the fact that the remedy of appeal under section 476‑B has not been made use of, does not deprive the accused from raising the question at his trial or in appeal or revision.

13. For the reasons given above I accept this revision application and quash the whole proceedings taken against the petitioner including his conviction. K. B. A./A. H. Petition accepted.