- (1.) THIS is a reference by one of us sitting singly and raises an interesting question of law relating to the interpretation of Section 195 of the Code of Criminal Procedure. It arises in this way. On the 6th of April, 1960, the accused respondent Roopa sent a complaint by post to the Deputy Inspector General of Police, Jodhpur, alleging that in connection with the marriages of his daughters, which were held on the 3rd of March, 1960, the Sub-Inspector of Police, Sojat accompanied by a number of constables had come to his house at the instance of the Sarpanch of the village Panchayat and announced that no one should partake of the feast arranged by Roopa as it was being held in connection with certain deaths which had taken place in his family. It was further alleged that as a result of what the Sub-Inspector had done all his guests had to go without food on that night for a long time until he had agreed to pay a sum of Rs. 600/- to the Sarpanch, the suggestion obviously was that this money had been shared between the Sarpanch and the Sub-Inspector of Police. A copy of this complaint was also forwarded by Roopa to the Collector or District Magistrate, Pali. There is nothing on the record to show that the Deputy Inspector General of Police took any action on this complaint. But the District Magistrate had an enquiry made by the Sub-Divisional Magistrate and the latter eventually reported that the complaint made by Roopa was palpably false and unfounded. Thereupon, the District Magistrate filed a complaint against the accused in the Court of the Sub-Divisional Magistrate, Pali, under Section 182 of the Penal Code on the 11th of November, 1961. This was transferred for trial to the Court of Munsiff-Magistrate, Pali. On the 28th of September, 1962, an objection was raised on behalf of the accused before the trial Magistrate that the complaint made against him at the instance of the District Magistrate was not maintainable as the latter had no concern with the complaint primarily made by the accused to the Deputy Inspector General of Police. This objection prevailed with the trial Magistrate and, consequently, he acquitted the accused by an order dated the 5th of November, 1962. Against that order the State has come up in appeal to this Court which was, in the first instance, laid before a single Judge who, in view of the importance of the question involved has referred it to a larger Bench. This is how this case has come before us for disposal.
(2.) THE question which thus arises for our determination is whether the complaint filed by the District Magistrate against the accused for his prosecution under Section 182 Indian Penal Code was made by a person who had authority to do so according to law. The answer to this question is governed by Section 195 of the Code of Criminal Procedure. That section, omitting its immaterial part, reads as follows:-- "195. (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. " This section is obviously an exception to the general rule that a private individual is free to set the criminal law in motion against any other person by whose action he may feel aggrieved and which act amounts to an offence in law, and the underlying object of the section is to give protection to parties and witnesses when resorting to the machinery of the police or the Courts in their endeavour to seek redress and to place a ban on reckless prosecutions by private individuals for the class of offences contemplated under Section 195. It is also well settled that where a complaint is made, with respect to any of the offences with which Section 195 is concerned, by a person, who is not authorised thereunder to do so, then the Court can have no jurisdiction to try and convict an accused who is sought to be prosecuted under any one of these sections, and such prosecution or conviction would amount to a nullity in law. It is against this background that the question of the competency of the District Magistrate to make the complaint, with which we are concerned in this case, falls to be determined. The key words of the sub-section are "except on the complaint in writing of the public servant concerned. " First, what then is the meaning of the phrase, "the public servant concerned ?" The accepted meaning is that the public servant concerned is the one to whom the complaint is made and not the person complained against. The public servant concerned here, therefore, would be the Deputy Inspector General of Police to whom the complaint was primarily addressed; but, a copy of this complaint was forwarded by the accused to the District Magistrate as well. It has been hotly debated before us on behalf of the accused that the District Magistrate would not fall within this phrase simply because a copy had been forwarded to him. This submission was based on the reasoning that the District Magistrate was not concerned with the complaint made against the Sub-Inspector of Police, the latter being subordinate to the Superintendent of Police, the Deputy Inspector General of Police and the Inspector General of Police in the hierarchy of the police administration.
(3.) THE first case to which our attention was invited by learned counsel for the accused is Ramasory Lall v. Queen Empress, ILR 27 Cal 452. The facts in this case were these. The accused gave certain information to the Police, who after investigating the matter reported that the information given was false and that that constituted an offence under Section 182 of the Penal Code. The District Magistrate sanctioned the prosecution of the accused, who was eventually convicted and sentenced under that section. The accused appealed but without success. A revision was then taken to the High Court and it was contended that the prosecution was bad because the District Magistrate was not competent to give the sanction. It was held that although police officers in a district were generally subordinate to the District Magistrate, the subordination contemplated by section 195 of the Code of Criminal Procedure was not such subordination, and that the subordination contemplated some superior officer of police.;