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Case Number

Criminal Appeal No. 125 and Cri. Revn. Case No. 82 of 1955

Attorney(S)

For the Appellant: B. Bhimaraju, D. Munikanniah, F.V. Suryanarayana, M. Lakshmana Rao, Advocates.

Judges

Krishna Rao, J.

Acts

section 294-A of the Indian Penal Code, 1860 (Central Act XLV of 1860).(2)
section 196 of the Cr PC, 1898, (Central Act V of 1898),
clause of section 294-A, Indian Penal Code.7.
clause of section 294-A, Indian Penal Code.8.
section 294-A, Indian Penal Code. Section 230
clauses of section 294-A, Indian Penal Code
clause of section 294-A, Indian Penal Code
sections 420 and 294-A, Indian Penal Code.
sections 294-A and 420, Indian Penal Code.
section 114(e) of the Evidence Act
section 294-A, Indian Penal Code,
section 420, Indian Penal Code,
section 4(1)(h) of the Cr PC.29.
section 4(1)(h) of the Cr PC.32.
section 4(1)(h)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The accused, Mulugu Jwala Subrahmanyam, was prosecuted under section 294-A, Indian Penal Code. The Government of Andhra issued a sanction for prosecution by G.O.Ms No. 335, Law, dated 3 April 1954, ordering that a complaint be made against the accused for publishing proposals relating to an unauthorised lottery. On the basis of that order, P.W.8 (an Inspector of Police attached to the Crime Branch of the C.I.D.) filed a charge-sheet charging the accused under sections 294-A and 420, IPC. The charge under section 420 was reserved for separate trial; the proceedings before the Court related to the section 294-A charge.

At trial the accused pleaded not guilty but admitted running the lottery and later admitted he published proposals to deliver prizes contingent on drawing lots. Evidence (P.Ws 2, 6 and 7) was led that the accused kept an office for the lottery at a specified address; the accused admitted keeping such an office when questioned under section 342 CrPC. The Additional First Class Magistrate convicted the accused under both clauses of section 294-A and imposed sentences.

On appeal, the Sessions Judge (a) held that the Government's sanction related only to the second clause of section 294-A and overruled objections that the accused could not be convicted under the first clause without sanction, (b) concluded that the accused was not guilty under the second clause (because he did not physically intend to draw lots but intended to cheat), set aside the conviction under the second clause, and confirmed the conviction under the first clause. The accused filed a revision against conviction under the first clause; the State appealed against the acquittal on the second clause. The opinion under summary reviews both the points raised in revision and the State's appeal.

Legal Issues Presented

Whether the accused could be validly convicted under the first clause of section 294-A, IPC where (a) the Government's sanction (the order) referred only to facts constituting an offence under the second clause, and (b) no complaint authorising prosecution for the first-clause offence was before the Court in accordance with section 196 CrPC.
Whether the second clause of section 294-A, IPC requires an actual physical intention to draw lots (i.e., whether publication of proposals contingent on drawing lots is an offence irrespective of an intention to carry out a draw).
Whether the charge-sheet filed by the police (a report under section 173 CrPC) could be treated as a "complaint" within the meaning of section 4(1)(h) CrPC so as to satisfy the requirement of sanction/complaint under section 196 CrPC for an offence under section 294-A, IPC.
Whether presumption of regularity under section 114(e) of the Evidence Act could be invoked to treat P.W.8 as authorised by the Inspector-General of Police to lay the charge-sheet pursuant to the Government order.

Arguments of the Parties

Appellant (Accused)'s Arguments

There was no complaint and no trial in respect of an offence under the first clause of section 294-A, IPC; conviction under that clause was therefore illegal and unsustainable.
The Government's sanction related only to an offence under the second clause; hence the accused could not be convicted under the first clause.
The charge-sheet laid by P.W.8 was only a police report (section 173 CrPC) and not a "complaint" as defined by section 4(1)(h) CrPC; therefore the requisite complaint under section 196 CrPC for taking cognizance of an offence under section 294-A was absent and the trial was void for want of jurisdiction.
P.W.8 was not shown to have been authorised by the Inspector-General of Police to lay the charge-sheet; therefore there was no nexus between the Government's order and the act of laying a complaint.
The accused also advanced a defence that he had been informed at the Collector's Office that Government permission was not necessary (an assertion invoked at trial).

Respondent (State/Prosecution)'s Arguments

The prosecution contended that P.W.8 had been authorised by the Inspector-General of Police to lay the charge-sheet pursuant to the Government order; omission of the correspondence demonstrating that authorisation was inadvertent.
The prosecution invoked the presumption under section 114(e) of the Evidence Act that official acts have been regularly performed, which would support treating P.W.8's action as properly authorised.
The State contended (in appeal) that the Sessions Judge took an erroneous view of the ingredients of the second clause of section 294-A, IPC and that publication of proposals contingent on drawing lots constitutes an offence under the second clause regardless of an intention actually to draw.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
U. Nyan Nein Da v. Emperor, AIR 1926 Rang 169	That provisions such as section 237 CrPC must be read subject to section 196 CrPC (i.e., prior sanction provisions).	Used to support the proposition that courts cannot convict for offences requiring prior sanction unless complaint/sanction exists; thus section 237 cannot override section 196 in this context.
Gokulchand Dwarkadas v. The King, ILR (1948) Bom 316; AIR 1948 PC 82	Section 230 CrPC contemplates that sanctions are to be given in respect of the facts constituting the offence charged; sanction must cover the facts on which a new or altered charge is founded.	Relied upon to show that a sanction is a condition precedent and must be in respect of the facts constituting the offence; here the Government's order referred only to facts falling under the second clause, not the first.
Public Prosecutor v. K.V. Kalkura, ILR (1942) Mad 802; AIR 1942 Mad 404	Held that "drawing" in the context of section 294-A means a physical drawing (actual drawing from a receptacle, by manual, mechanical or other process).	The Court accepted that "drawing" ordinarily means physical drawing. It then compared facts here: that the accused's publications expressly stated the lucky numbers would be ascertained by actual drawing, making the second clause applicable irrespective of the accused's ulterior intention.
Queen Empress v. Mancherji Kavasji Shapurji, ILR 10 Bom 97	Supports the view that the legislature intended the public should not be informed of proposals of the kind in the second clause; publication of such proposals completes the offence.	Cited to show that publication of proposals contingent on drawing is itself an offence under the second clause and does not depend on whether the draw was to be carried out or whether the promoters intended to defraud.
Apurba Krishna Bose v. Emperor, ILR 35 Cal 141	Authority for invoking the presumption under section 114(e) Evidence Act that official acts have been regularly performed.	Referred to when evaluating the prosecution's assertion that P.W.8 was authorised by the Inspector-General; court found it legitimate to invoke the presumption of regularity in the absence of contradiction at trial.
Mallikarjuna Prasadarao v. Emperor, 1933 Mad WN 876	Held that section 4(1)(h) CrPC excludes police reports in cognizable cases from the category of "complaint", but a police report in a non-cognizable case could be a complaint.	Applied to assess whether the police charge-sheet could be treated as a complaint under section 4(1)(h) CrPC. The Court followed the Madras view that the classification depends on whether the underlying offence was cognizable.
The Public Prosecutor v. Ratnavelu Chetty, ILR 49 Mad 525; AIR 1926 Mad 865	Observations supportive of the view that a police report in certain contexts may qualify as a complaint depending on cognizability.	Used as supporting authority for the Madras line that differentiates police reports in cognizable vs. non-cognizable matters when deciding whether a police report can be a "complaint".
Emperor v. Shivaswami Guruswami, ILR 51 Bom 498; AIR 1927 Bom 440	Also supports the view that a police report in non-cognizable cases might be a complaint.	Referred to as additional support for the view favouring the Madras decisions on the complaint/report distinction.
B.N. Subba Rao v. State of Mysore, AIR 1955 Mys 1	Held that a police charge-sheet cannot be regarded as a complaint.	Mentioned as a contrary decision; the Court noted the decision but indicated it was bound by the Madras line of authority and therefore did not adopt this view.

Court's Reasoning and Analysis

The Court proceeded in a stepwise legal analysis, grounded in statutory provisions and precedents cited in the record.

1. Scope of Government sanction and requirement of a complaint under section 196 CrPC: The Government order (G.O.Ms No. 335) set out facts referring to publication of proposals in respect of an unauthorised lottery — facts that fell within the second clause of section 294-A, IPC. The Court observed that section 196 CrPC requires a complaint authorised by the State Government before a Court can take cognizance of offences punishable under section 294-A. Section 230 CrPC (for new/altered charges requiring sanction) and Gokulchand Dwarkadas were cited to stress that sanction must be in respect of the facts constituting the offence charged. Consequently, the Court concluded the Government's order did not authorise prosecution for an offence under the first clause (keeping an office for a lottery), since the order referred only to facts pertinent to the second clause.

2. Trial and charge particulars: The Court examined the police charge-sheet and the particulars as read to the accused under section 242 CrPC. It found that neither the charge-sheet nor the particulars mentioned the accused keeping any office; the charge-sheet exclusively set out facts relating to publishing proposals and to cheating under section 420, IPC. Evidence about an office came in only later during trial, and the first indication of a prosecution for keeping an office appeared only in the Magistrate's judgment. The Court held there had been no trial on the first-clause offence (keeping an office) in accordance with proper summons-case procedure.

3. Jurisdictional bar and non-applicability of section 237 CrPC to override sanction requirement: The Sessions Judge had relied on section 237 CrPC to uphold conviction under the first clause despite lack of an express charge, but the Court held (citing U. Nyan Nein Da) that section 237 must be read subject to section 196; therefore section 237 could not confer jurisdiction where complaint/sanction required by section 196 was absent. The conviction under the first clause was thus without jurisdiction.

4. Substance of second-clause offence (drawing requirement) and Sessions Judge's reasoning: The Court agreed with the Sessions Judge (and prior precedent Public Prosecutor v. K.V. Kalkura) that "drawing" in section 294-A contemplates a physical act of drawing. However, the Court concluded that the statutory offence under the second clause is constituted by the publication of proposals contingent on the drawing of tickets; it does not depend on the accused's actual intention to draw or not. The offense is completed by publication of such proposals, whether or not the draw was intended to be carried out. The Session Judge's acquittal of the accused on the second-clause charge because the accused did not intend to draw was therefore incorrect in principle.

5. Whether the police charge-sheet could stand as a "complaint": The Court analyzed the legal distinction between a "complaint" and a police report. Section 4(1)(h) CrPC excludes reports of police officers from the definition of "complaint". The Court examined the line of Madras authority (Mallikarjuna Prasadarao and related cases) supporting that a police report in a non-cognizable case might amount to a complaint, whereas in cognizable cases a police report is excluded. The present charge-sheet, however, arose out of a cognizable registration (Crime No. 650 of 1952 under section 420 IPC) and the charge-sheet was, in form, the usual report under section 173 CrPC; the same document could not be treated partly as a police report and partly as a complaint in contravention of section 4(1)(h). Therefore the charge-sheet could not be treated as a valid complaint for the purpose of section 196 CrPC.

6. Presumption of regularity for P.W.8's authority: The Court accepted that, in light of the prosecution's statement and absence of cross-examination on the point, it was legitimate to invoke the presumption under section 114(e) Evidence Act that official acts were regularly performed, tending to establish that P.W.8 was authorised by the Inspector-General. The Court thus found a nexus between the Government's order and P.W.8's actions so far as authorisation is concerned.

7. Ultimate resolution of competing defects: Although the Court held the Sessions Judge was wrong on the legal basis for acquittal under the second clause (intention to draw not being essential), the Court concluded that the charge-sheet could not be treated as a complaint within the meaning of section 196 CrPC because the document was a police report arising out of a cognizable case. Consequently, the Magistrate lacked jurisdiction to try the accused for the offence under section 294-A. The defect was held not to be curable under section 537 CrPC. On this basis the Court allowed the revision and dismissed the State's appeal.

Holding and Implications

Holding: Revision allowed; Appeal dismissed. The conviction and sentence of the accused under the first clause of section 294-A, Indian Penal Code, are quashed.

Implications:

Direct effect on parties: The accused's conviction and sentence under the first clause of section 294-A, IPC were quashed for want of jurisdiction because no complaint authorised by the State Government in respect of that offence was before the Court; the State's appeal against acquittal on the second clause was dismissed.
The Court affirmed that publication of proposals contingent on the drawing of tickets constitutes the offence under the second clause of section 294-A, IPC irrespective of any actual intention to carry out the draw; the Sessions Judge's reasoning that absence of intention to draw negated the offence was incorrect as a matter of law.
The opinion emphasised procedural requirements: a valid complaint (not merely a police report arising from a cognizable case) is a condition precedent for taking cognizance of an offence under section 294-A, IPC (per section 196 CrPC), and that a police charge-sheet in a cognizable case cannot be treated as a complaint under section 4(1)(h) CrPC.
The Court applied the presumption under section 114(e) Evidence Act to infer regularity of official action where appropriate, but this did not cure the fundamental defect that the charge-sheet could not serve as the requisite complaint for the first-clause offence.
No broader new precedent was announced beyond the application of existing statutory provisions and the cited authorities; the decision resolves the case on jurisdictional and procedural grounds and clarifies that the formal distinction between police reports and complaints under the Code is material and can be outcome-determinative.

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The Public Prosecutor v. Mulugu Jwala Subrahmanyam .

1. This appeal and revision arise out of a prosecution of the accused Jwala Subrahmanyam under section 294-A, Indian Penal Code. The prosecution was sanctioned by the Government of Andhra in G.O.Ms No. 335, Law, dated the 3rd April, 1954, which is in the following terms:

“Read the following:—

From the Inspector-General of Police, Kurnool.

R.C No. 151.Crime/154, dated 16th February, 1954.

ORDER: (1) Whereas information has been received that Mulugu Jwala Subrahmanyam son of Mallikarjunayya, Yeetamukkala Village, Ongole Taluk of Guntur District published proposals, relating to the lottery styled “Sri Bala Thripurasundari Lucky Prize Distributing Company”, not being a lottery authorised by the State Government in circumstances constituting the acts of the said Mulugu Jwala Subrahmanyam, an offence punishable inter alia under section 294-A of the Indian Penal Code, 1860 (Central Act XLV of 1860).

(2) Now, therefore, in exercise of the powers conferred by section 196 of the Cr PC, 1898, (Central Act V of 1898), the Governor of Andhra hereby orders that a complaint be made against the said Mulugu Jwala Subrahmanyam in respect of the offence aforesaid.

(By Order of the Governor.)

(Sd.) B. Ch. Narayanamurthy, Secretary to Government.

The Inspector-General of Police, Kurnool (with a spare copy).

Copy to the Collector of Nellore.

Copy to the Public Prosecutor, Nellore.

2. On the strength of this order, P.W 8, an Inspector of Police attached to the Crime Branch of the C.I.D, laid a charge-sheet against the accused under sections 294-A and 420, Indian Penal Code, to respect of the offence under section 420, Indian Penal Code, the charge-sheet stated that the accused cheated the public to the tune of Rs. 30,000 to Rs. 40,000 by selling tickets of Re. 1 each for a lottery, without the intention at any time to secure and distribute the prize articles numbering about 2,000 mentioned in the published proposals and tickets. In respect of the offence under section 294-A, Indian Penal Code the charge-sheet stated that the accused rendered himself liable for punishment under the second part thereof by having unouthorisedly published a lottery which is not a State lottery nor one authorised by the State Government. The charge under S. 420, Indian Penal Code, was reserved for a separate trial and we are concerned only with the trial of the charge under S. 294-A, Indian Penal Code.

3. Consistently with the Government's order of sanction and the police charge-sheet, the particulars of the offence stated under section 242 of the Cr PC, to the accused were that between July and December, 1952, he published proposals for running a lottery without proper authorisation from the Government. The accused pleaded not guilty though he admitted that he ran the lottery. He explained that he could not complete the draw owing to the public commotion and also admitted later during the trial that he published proposals to deliver prizes contingent on drawing lots.

4. At the trial, P.Ws 2, 6 and 7 gave evidence that the accused kept an office for the purpose of the Lottery at Door No. 16/97 in Athitota Agraharam, Nellore. This evidence was put to the accused under section 342 of the Cr PC, on 16th December, 1954, after the close of the prosecuton evidence. The accused gave an answer admitting that he kept the lottery office as alleged. His only defence was that he was informed at the Nellore Collector's Office that Government's permission for the lottery was not necessary.

5. He examined one of his agents D.W 1 in support of his story. The Additional First Class Magistrate disbelieved D.W 1 as being an interested witness and also observed that ignorance of law is no excuse. He convicted the accused under both the clauses of section 294-A, Indian Penal Code and sentenced him to undergo rigorous imprisonment for six months for the offence under the first clause and to pay a fine of Rs. 250 with simple imprisonment for one month in default for the offence under the second clause.

6. On appeal, the learned Sessions Judge overruled the objections raised by the accused that the sanction by the Government was only in respect of an offence under the second clause of section 294-A, Indian Penal Code and that the accused could not therefore be convicted for an offence under the first clause. However, the learned Sessions Judge was of the view that as a physical drawing of lots was necessary to constitute an offence under the second clause and as the accused admittedly had no intention to draw lots but cheated the public, the accused was not guilty under the second clause of section 294-A, Indian Penal Code.

7. On these grounds, he set aside the conviction and sentence under the second clause while confirming the conviction and sentence under the first clause. The accused has come up in revision against the conviction under the first clause and the State has preferred an appeal against the acquittal in respect of the offence under the second clause of section 294-A, Indian Penal Code.

8. In the revision the point taken on behalf of the accused is that there was no complaint nor was the accused tried in respect of an offence under the first clause of section 294-A, Indian Penal Code and that the conviction under the said clause is therefore illegal and unsustainable. This contention is well-founded. Both the trial Magistrate and the Sessions Judge were in error in stating that the Police charge-sheet mentioned the facts relating to an offence punishable under the first clause, viz., that the accused kept an office for the purpose of the lottery.

9. The charge-sheet does not mention at all about the accused keeping any office. It merely sets out the facts of the accused having got his company registered, the tickets printed and sold and the proposals relating to the lottery published and of his putting/up a show with playing of the band at the Nellore Town Hall where the lottery was published to be drawn. It winds up by stating that the accused was liable under the second part of section 294-A, Indian Penal Code, for having unauthorisedly published the lottery and under section 420, Indian Penal Code, for having cheated the public.

10. It contains no reference to any office or place kept by the accused either at Door No. 16/97, Athitota Agraharam, or elsewhere. The substance of the accusation stated to the accused at the commencement of the trial was also merely that he published proposals for running an unauthorised lottery. This could refer only to an offence punishable under the second clause of section 294-A, Indian Penal Code and there was no mention of any office having been kept which is an offence punishable under the first clause.

11. It was only afterwards during the trial that the evidence of some witnesses was let in that the accused kept an office at the Door No. 16/97 in Athitota Agraharam. The first indication in the record that the accused was also prosecuted for keeping the office is to be found on 16th December, 1954, after the close of the prosecution evidence, when the Magistrate put a question to the accused regarding his having kept an office which was spoken to by P.Ws 2, 6 and 7.

12. It is clear that there was no trial of the accused at all for the offence of keeping an office punishable under the first clause of section 294-A, Indian Penal Code. No doubt, the accused admitted in his answer to the Magistrate's question that he kept the office, but the Magistrate did not thereafter ask the accused to show cause why he should not be convicted for the offence of keeping the office as he ought to have done under the summons case procedure.

13. The existence of a charge under the first clause of section 294-A, Indian Penal Code, was disclosed for the first time only in the Magistrate's judgment. Thus it cannot be said that there was any trial at all for the offence under the first clause of section 294-A, Indian Penal Code, of which the accused has been convicted.

14. The learned Sessions Judge held that section 237 of the Cr PC, empowered the Court to convict the accused under the first clause of section 294-A, Indian Penal Code, although there was no charge for that offence. But the provisions of section 237 of the Cr PC, have to be read subject to the provisions of section 196 of the Cr PC: U. Nyan Nein Da v. Emperor, AIR 1926 Rang 169 (A). The relevant portion of section 196 of the Cr PC, reads:

“No Court shall take cognizance of any offence punishable under…………section 294-A…………. unless upon complaint made by order of, or under authority from, the State Government or some officer empowered by the State Government in this behalf.”

15. A complaint authorised by the State Government is necessary before a Court, can take cognizance of an offence punishable under section 294-A, Indian Penal Code. Section 230 of the Cr PC, provides for the situation when a new charge is framed which requires previous sanction and runs as follows:

“If the offence stated in the new or altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charge is founded.”

16. As held by the Judicial Committee in Gokulchand Dwarkadas v. The King, ILR (1948) Bom 316) : (AIR 1948 PC 82) (B), the words of section 230 of the Cr PC, indicate

“that the Legislature contemplated that sanctions under the Code would be given in respect of the facts constituting the offence charged.”

17. Such a sanction is a condition precedent to tlre Court taking cognizance of the offence and without it the Court has no jurisdiction to try an accused for the offence. Here, the facts constituting the offence as set out in the order of the State Government refer only to an offence punishable under the second clause of section 294-A, Indian Penal Code it is clear that the complaint for an offence punishable under the first clause of section 294-A, Indian Penal Code, was not authorised by the State Government.

18. The Magistrate was barred by section 196 of the Cr PC, from taking cognzance of that offence at the trial. These considerations would apply even to invoking section 246 of the Cr PC. The conviction of the accused under the first clause of section 294-A, Indian Penal Code, is therefore without jurisdiction and has to be quashed.

19. In the appeal preferred by the State, the point taken is that the learned Sessions Judge has taken an erroneous view of the ingredients necessary to constitute an offence under the second clause of section 294-A, Indian Penal Code. No doubt, the learned Sessions Judge was right in holding that section 294-A contemplates only lotteries in which the lucky numbers are ascertained by “drawing” and that the word “drawing” is used in its physical sense meaning actual drawing from a receptacle whether by manual, mechanical or other process: Public Prosecutor v. K.V. Kalkura, (ILR (1942) Mad 802) : (AIR 1942 Mad 404) (C).

20. In that case, the lucky numbers were determined on the basis of the highest number of the tickets sold by an agent who sold the largest number of tickets. Horwill, J., after referring to the case-law on the subject held that it was not a lottery in which there was drawing in the sense used in section. 294-A, Indian Penal Code and that the accused who ran the lottery did not therefore commit an offence under either clause of the section.

21. In the present case, however, it is not disputed that in the tickets, pamphlets and other publications made by the accused, it was given out that the lucky numbers in the lottery would be ascertained by actual drawing in the physical sense. They mention kalupu date which obviously meant that the lucky numbers would be determined by the method of mixing up the tickets or similar tokens and taking out the lucky numbers. The accused also specifically admitted that the proposals he advertised were to deliver prizes contingent on the drawing of lots.

22. The point of the learned Sessions Judge was that the accused never intended to actually draw lots inasmuch as his intention was to cheat the public. But the section does not require that the accused should have, as a matter of fact, intended to draw the lucky numbers. The second clause of section 294-A, Indian Penal Code, makes it an offence to publish a proposal to pay any sum of money or to deliver any goods or to do or forbear doing anything for the benefit of any person, on any event or contingency relative or applicable to the drawing of tickets and the like in an unauthorised lottery.

23. The offence consists in the publication of such proposals and does not depend on whether the proposals were to be actually carried out or not. The intention of the Legislature appears to have been that the public should not be informed of such proposals. Queen Empress v. Mancherji Kavasji Shapurji, ILR 10 Bom 97 (D). If the proposals are such as come within the mischief of the second clause of section 294-A, Indian Penal Code, the offence is completed by publishing them and it does not matter whether the scheme is to actually conduct the lottery or to merely defraud the public. The learned Sessions Judge's ground for acquitting the accused cannot be upheld.

24. However, on the question whether the order of acquittal has to be set aside, the learned counsel for the accused contends that the entire proceedings before the Magistrate were vitiated because the requirement under section 196 of the Cr PC, of a complaint in the case has not been satisfied. He urges that the Government's order sanctioning the prosecution was addressed to the Inspector-General of Police and that there is nothing to show that the Inspector-General of Police authorised the making of a complaint by P.W 8 who laid the charge-sheet.

25. The learned Public Prosecutor states that P.W 8 was in fact authorised by the Inspector-General of Police and that the correspondence between them relating to this matter was inadvertently omitted to be filed. P.W 8 was not cross-examined at all and it does not appear to have been ever suggested during the trial that fee had no authority to file the charge-sheet. In the circumstances, it would be legitimate to invoke the presumption under section 114(e) of the Evidence Act that official Acts have been regularly performed and that P.W 8's action was not unauthorised. Apurba Krishna Bose v. Emperor, ILR 35 Cal 141 at p. 152 (E).

26. I am, therefore, unable to agree with the contention that there is no nexus between the Government's order directing the making of the complaint and P.W 8's action in laying a charge-sheet in pursuance thereof.

27. The next contention on behalf of the accused is that the charge-sheet laid by P.W 8 is not in law a complaint required by section 196 of the Cr PC. A complaint is defined in section 4(1)(h) of the Cr PC and the definition specifically excludes the report of a police officer. The argument is that the charge-sheet filed by P.W 8 is only a report of a police officer and not a complaint. It appears to me that this contention is well-founded.

28. The case was originally registered as Crime No. 650 of 1952 under section 420, Indian Penal Code, on information given to the Nellore Town Police by five persons. After investigation, the charge-sheet. In the case was filed by P.W 8 under sections 420 and 294-A, Indian Penal Code. In form, the charge-sheet is only the usual charge-sheet or final report under section 173 of the Cr PC and the question is whether, as contended by the learned Public Prosecutor, it can be treated as a complaint within the meaning of section 4(1)(h) of the Cr PC.

29. In Mallikarjuna Prasadarao v. Emperor, 1933 Mad WN 876 (F), Burn, J., held that section 4(1)(h) of the Cr PC, excludes from the category of complaints only reports made by the Police in cognizable cases and that a report of police officer in a non-cognizable case would be a complaint. This view receives support from the observations in The Public Prosecutor v. Ratnavelu Chetty, ILR 49 Mad 525 : (AIR 1926 Mad 865) (FB) (G), and Emperor v. Shivaswami Guruswami*, ILR 51 Bom 498 at p. 506 : (AIR 1927 Bom 440 at pp. 442-443) (H). The learned counsel for the accused relies on B.N Subba Rao v. State of Mysore, AIR 1955 Mys 1 (I), where it was held that a police charge-sheet cannot be regarded as a complaint, but I am bound by the Madras decisions.

30. However, the charge-sheet filed by P.W 8 here did not arise from the investigation of any non-cognizable offence. It was made after investigation into the cognizable offence which was registered under section 420, Indian Penal Code and the charge-sheet itself relate to both the offences under sections 294-A and 420, Indian Penal Code. It is a report falling under section 173 of the Cr PC, so far as the offence under section 420, Indian Penal Code, is concerned.

31. No doubt, after the case was taken on file on the basis of the common charge-sheet for the offences under sections 294-A and 420, Indian Penal Code, the inquiry into the offence under section 420 was separated. But no separate charge-sheet or complaint was filed under the section 294-A, Indian Penal Code; the same document cannot be treated as both a report of a police officer and a complaint because that would be in the teeth of section 4(1)(h) of the Cr PC.

32. It is not as if the distinction between a complaint and the report of the police officer has no significance except for the purpose of procedure. The distinction makes a difference for giving relief to an accused under section 250 of the Cr PC, because in a case instituted upon complaint, action under that section would be taken against the complainant whereas in a case instituted upon a report of a police officer, action would have to be taken against the informant to the police.

33. In my opinion, the charge-sheet filed by P.W 8 in this case cannot be split up and treated partly as a complaint and partly as a report of a police officer. A valid complaint is a condition precedent for taking cognizance of an offence under section 294-A, Indian Penal Code. In the absence of such a complaint, the Magistrate would have no jurisdiction to proceed to the trial of such an offence. The defect is not curable under section 537 of the Cr PC and it follows that the appeal must fail. In the result, the revision case is allowed and/the appeal is dismissed. The conviction and sentence of the accused under the first clause of section 294A, Indian Penal Code, are quashed.

D.R.R

34. Order accordingly.

section 294-A, Indian Penal Code.

The Public Prosecutor v. Mulugu Jwala Subrahmanyam .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Accused)'s Arguments

Respondent (State/Prosecution)'s Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

The Public Prosecutor v. Mulugu Jwala Subrahmanyam .

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