Shah, J.:—

Krishna Tukaram Jadhav and Sambhu Krishna Jadhav—whom I will hereafter refer to as the Petitioners,—addressed a letter in the form of a petition dated September 2, 1952 to the Chief Minister of Bombay and to the Minister of Civil Supplies, Bombay. In that petition they made certain allegations against one Vithoba Laxman Sakpal. It is unnecessary to set out the details of those allegations. Thereafter the Secretary to the Chief Minister, Bombay State, filed a complaint in the Court of the Presidency Magistrate, 8th Court, Esplanade, Bombay, charging the petitioners with having committed an offence under s. 182 read with s. 34 of the Indian Penal Code. It was the case of the complainant that both the petitioners gave false information to the Chief Minister, ‘with the intention of causing thereby the Chief Minister to proceed against and punish Vithoba Laxman Sakpal or with the intention to cause the Chief Minister to use his lawful power as public servant to the injury or annoyance of Vithoba Laxman Sakpal. The complainant produced before the court an authority signed by the Chief Minister of Bombay to the following effect:

“I hereby direct and authorise my Secretary Shri V.Y Tonpe to file a complaint under s. 182 read with s. 34 of the Indian Penal Code against Krishna Tukaram Jadhav and Sambhu Krishna Jadhav for giving false information to me against Vithoba Laxman Sakpal by presenting application dated September 2, 1952”.

The learned Magistrate entertained the complaint and proceedings were started against the two petitioners. At some stage after evidence was partially recorded, Counsel for the accused raised an objection that the proceedings before the Court were without jurisdiction as there was no complaint on record of the Chief Minister who alone could file a complaint for the offence charged. The learned Magistrate held that the expression ‘complaint’ in s. 195 of the Code of Criminal Procedure was not used in any technical sense as defined in s. 4 of the Code. In the view of the learned Magistrate.

“as the Chief Minister had in writing directed and authorised his Secretary by name to file a complaint under s. 182 read with s. 34 of the Indian Penal Code against the accused by name for giving false information etc., it was obvious that the Chief Minister intended that these persons should be punished and that the prosecution was not really at the instance of some other person.”

The learned Magistrate accordingly overruled the contention and directed the case to proceed. The first accused has come to this Court in revision against that order.

The order passed by the learned trial Magistrate is an interlocutory order and normally this Court does not interfere with proceedings before subordinate Criminal Courts at an interlocutory stage. But in this case it appears that the proceedings pending before the learned Magistrate have been entertained by him without jurisdiction. On the view that I take the proceedings should not be permitted to run their normal course and an order either of conviction or acquittal should be recorded before entertaining an application in revision. It would involve the two accused into considerable trouble and harrassment if the proceedings in the Court of first instance are not quashed at this stage. In my judgment the proceedings appear to have been entertained without jurisdiction.

Section 195(1) of the Code of Criminal Procedure provides:

“No Court shall take cognisance of any offence under ss. 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.”

In the present case it is conceded that there is no complaint in writing of the public servant concerned. Evidently the offence with which the accused are charged is the offence of giving to the Chief Minister of the State of Bombay, who is a public servant, information which the accused knew or believed to be false and intended thereby to cause, or knowing it to be likely that they would thereby cause, the public servant to do or omit to do something which the public servant ought not to do or omit if the true state of facts respecting which the information was given were known by them, or to use the lawful power of the public servant to the injury or annoyance of any person. The information having been given to the Chief Minister, by reason of s. 195(1)(a) of the Code of Criminal Procedure the learned Magistrate can take cognizance of the proceedings, only on a complaint in writing by the Chief Minister. Now, the complaint filed in this case on which the prosecution has been commenced against the accused is a complaint by the Secretary to the Chief Minister and not by the Chief Minister himself. When the Legislature has provided that the Court shall not take cognizance in respect of certain offences except on the complaint in writing of the public servant or of some other public servant to whom he is subordinate, it is not a sufficient compliance with s. 195(1)(a) that the proceedings are commenced on a complaint in writing which is merely authorised by the public servant. In my judgment before proceedings can start under s. 182 of the Indian Penal Code, the public servant to whom the information relating to which a charge is made has been given must give a complaint in writing, or a complaint in writing must be given by some other public servant to whom such public servant is subordinate.

A complaint in writing by the public servant concerned is a condition precedent to the cognizance being taken by a Magistrate of an offence mentioned in s. 195(1)(a) of the Code of Criminal Procedure and that condition must be strictly complied with. A complaint not by the public servant concerned or by some public servant to whom he is subordinate, but by a person who is merely authorised 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 195 of the Code of Criminal Procedure does not permit any delegation of authority by the public servant concerned. When the Legislature has thought it necessary to permit even a limited delegation to be made, an express provision to that effect has been made in the Code. In s. 476 of the Code of Criminal Procedure, which deals with the procedure of filing complaints in cases mentioned in s. 195, it is expressly provided by the first proviso that

“where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.”

The Legislature not having made any similar provision, it would be reasonable to hold that delegation of authority to file a complaint by the public servant concerned is not permissible. That view finds support in a Full Bench decision of this Court reported in In re: Punamchand Maneklal,(5). It was observed in that case by Mr. Justice Heaton that where an Income-Tax Collector does not choose to give sanction to prosecute an accused person as he could have done under s. 195(b) and (c), as they then stood, but he chooses to make a complaint, it is not permissible to him to delegate his authority. In that case the complaint was not lodged by the District Magistrate but by a certain Mr. Lakhia by order of the District Magistrate, and it was observed by Mr. Justice Heaton in considering the validity of the proceedings started at the instance of Mr. Lakhia:—

“It was argued that because the complaint, which was made against this applicant, was lodged by a certain Mr. Lakhia by order of the District Magistrate or the Collector, and because the Collector is a public servant to whom the Income-tax Collector is subordinate, therefore this complaint may be regarded as a complaint of the kind provided for in clause (a) of s. 195. But that clause provides that the public servant concerned may either give a sanction or make a complaint and that seems to me to exclude the idea that a public servant may make a complaint by any form of delegation. It seems to me that he must make the complaint, if he wishes to take that course, personally. If he does not wish to take that course personally, the delegation is obtained by giving the sanction. Similarly the Collector as superior officer, though personally no doubt he might make the complaint, cannot delegate the making of a complaint to another.”

Those observations in my judgment are very pertinent in the present case.

On behalf of the State reliance was sought to be placed upon certain observations made in a judgment of this Court reported in In re: Apparao,(6). That was a case in which a District Judge forwarded to the District Magistrate a copy of his judgment with a letter in which he called attention to remarks relating to forgery of a will and requested the latter to take up the matter for prompt investigation. Without examining the District Judge on oath in support of the statements in his letter, the District Magistrate ordered a police investigation, and treating the letter as a complaint, he brought the case for trial before a competent Magistrate. The accused applied to the High Court in revision and it was held that the failure to examine the District Judge on oath was an irregularity of a kind which came within those enumerated in cl. (a) of s. 537 of the Criminal Procedure Code, and that therefore the proceedings against the accused were properly initiated. The point of law decided in that case is not likely to arise, since the amendment to s. 200 of the Code of Criminal Procedure, which has obviated the necessity of examining public servants on oath when they file complaints in their official capacity. But reliance was sought to be placed upon the observations made at page 1020 where Mr. Justice Heaton observed that the real purpose of the provisions of s. 195 was that no man concerned or supposed to be concerned in any of the offences enumerated in s. 195 when this supposed offence arises in connection with a case or with judicial proceedings and so forth shall be proceeded against unless the Court or officer concerned indicates that he thinks the case ought to be inquired into. Section 195(a) before it was amended in 1923 provided that no Court shall take cognizance of any offence punishable under ss. 172 to 188 of the Indian Penal Code except with the previous sanction or on the complaint of the public servant concerned or of some other public servant to whom he was subordinate. It was possible, before the Code was amended in the year 1923, for a public servant to give sanction for prosecution for offences specified in that sub-section and no form of sanction was provided by the Code of Criminal Procedure. In these circumstances if there was sufficient evidence to indicate that the public servant concerned desired that the offender should be prosecuted, that was sufficient compliance with the terms of s. 195 and a sanction may be deemed to be given. The Legislature has now deleted the words “with the previous sanction or” in the section as it stood at the date when the case in In re: Apparao was decided. The observations made in that case can have no validity since the amendment of the Code of Criminal Procedure in the year 1923.

Reliance was also sought to be placed upon a judgment of a single Judge of the Allahabad High Court reported in Barkat v. Emperor.(7) Mr. Justice Allsop who decided that case appears to have taken the view that the expression ‘complaint’ used in s. 195(1)(a) was not intended to be used in the sense of a complaint as defined in s. 4(1)(h) of the Code of Criminal Procedure. In the view of the learned Judge the intention of s. 195, is only that the Magistrate should not punish any person except at the instance of the public officer concerned or his superior, and he did not think that the term ‘complaint’ was used in the technical sense in which it was defined in s. 4. With very great respect to the learned Judge I am unable to agree with that view. When the Legislature makes the jurisdiction of a criminal Court dependent upon a complaint in writing by the public servant concerned, you cannot substitute the complaint by some other information or report not of the ‘public servant concerned’ but of some other person who has moved the Magistrate at the instance of the public servant—and say that the requirements of the statute are complied with. If the Legislature has provided a condition precedent to the exercise of jurisdiction by a Court, the condition precedent must be strictly complied with and a substitute cannot in my judgment avail the Magistrate to assume jurisdiction. It is true that the view taken by Mr. Justice Allsop appears to have met with approval of a Division Bench of the Saurashtra High Court presided over by Divatia C.J in State v. Nandlal Karunashankar(8). The learned Chief Justice in delivering the Judgment of the Court does not appear to have given any additional reasons besides those given by Mr. Justice Allsop in Barkat v. Emperor. I do not think that the view which appealed to the learned Chief Justice can be accepted.

The order passed by the learned trial Magistrate will therefore be set aside and it will be directed that the learned trial Magistrate will proceed to dispose of the complaint as entertained without jurisdiction.

Order set aside.

K.B.S