STATE OF U.P.versusMATA BHIKH AND ORS.

                                                                                     I

A                             STATE OF U.P.
                                    v.                                                   ,.,t
                           MATA BHIKH AND ORS.

                                 MARCH 9, .1994

B            (S. RATNAVEL PANDIAN AND P.B. SAWANT, JJ.)

          Code of Criminal Procedure, 1973: Section 195(1)(a)-'Pub1ic Ser-
    vant concemed'-lnterpretation of-Successor in office-Position of-Whether
    could file a complaint for non- compliance of his predecessor's orders.
c         Words & Phrases: 'Public servant concemed'-Meaning of-In the
    context of S.195(J)(a) Cr.P.C.

          By an order u/s. 145 Cr.P.C. the Sub Divisional Magistrate
    resirained the respondents froom interfering with the possession of one "R"
D   in respect of a plot or land. The agent of "R" filed a petition complaining
    that the respondents had violated the said order and the Sub Divisional
    Magistrate preferred a petition u/s.188 IPC before the Judicial Magistrate.
    The respondents were found! guilty and were convicted and sentenced to                      '
    undergo three months' rigorous imprisonment, which was confirmed, on
    appeal, by the Additional Sessions Judge.
E
          Respondents preferred! a Revision and the High Court allowed it ahd
    set aside the conviction and sentence mainly on the ground that the
    complaint bad been filed not. by 'the public servant concerned', namely, the
    Magistrate who passed that order under Section 145 of the Code, but by
F   a successor Magistrate and that any successor Magistrate cannot exercise
    jurisdiction under Section 195(1) (a) and that the complaint, therefore, was
    not maintainable in law.

         The State preferred llhe present appeal against the High Court's
    judgment.
G
          Allowing the appeal, this Court

          HELD: 1.1. A successor in office of a public servant concerned will
    also fall within the ambit of the expression 'public servant concerned'
    appearing in S.195(1)(a) of the Code of Criminal Procedure 1973. Any
H   other view contrary to it will only create difficulties in certain situations.
                                         368
      \

                                STATEOFU.P. v. MATABHIKH                            369

           In a case where a public servant concerned promulgates a preliminary A
           order under Sections 133, 145 or 146 of the Code of Criminal Procedure
           and is transferred or retires or ceases to be in office on any account before
           a final order Is passed, would It mean that the snccessor who Is under t!!f
           law to continue the same proceeding, has no right to file a complaint if the
           preliminary order Is disobeyed. In every such situation, one cannot expect B
           the superior officer to whom the public servant is administratively sub·
           ordinate to file a complaint against the wrongdoers disobeying either the
 .t
           preliminary order or the final order promulgated by the public servant
           concerned. (373-G-H, 374-A]

                  1.2. The successor-in-office of the public servant gets into the same    C
            position of the public servant concerned and he is in law eligible to file a
          1
            complaint against wrongdoers. (374-B-C]

                 Ajaib Singh v. Joginder Singh, AIR (1968) SC 1422, relied on.

                Government Advocate, Bihar v. Kumar Singh, AIR (1938) Pat 83 and D
           Manik Lal Bhagat v. State and Another, (1982) Crl.W. 1473, approved.

                 Mata Bhlkh and Others v. State, (1980) Crl.LJ. 575, overruled.

                 In re. Subramanian Chettier AIR (1957) Mad. 442; Public Prosecutor        E
           v. Mohamed Al~ AIR (1969) AP 41; Daulat Ram v. State of Punjab, [1962]
           Supp. 2 SCR 812 and P.D. Patel v. Emperor, AIR (1933) Rangoon 292,
           referred to.

                 2. However, in the instant case, since the proceedings commenced in
           the year 1968 and the judgment in revision by the High Court was rendered       F
           in August 1979, the respondents were admonished under Section 3 of the
           Probation of Offenders Act instead of directing them to undergo the
           sentence passed by the Courts below. (374-D]

                 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                      G
           202 of 1981.

,L              From the Judgment and Order dated 3.8.79 of the Allahabad High
           Court in CrL Rev. 614n7.

                 Ms. Kamini Jaiswai for A.S. Pundir for the appellant.                     H
                                                                                      !
    370                    SUPREME COURT REPORTS                   [1994) 2 S.C.R.

A         R.D. Upadhyay (NP) for the respondents.

          The Judgment of the Court was delivered by

           S. RATNAVEL PAN DIAN, J. The short point involved for determina-
    tion in this appeal is with regard to the interpretation of the expression 'the
B   public servant concerned' appearing in Section 195(1)(a) of the Code of
    Criminal Procedure (hereinafter referred to as 'the Code'). The brief facts
    of the case which led to this controversy are as follows:-

          It is the adimtted case that on 11.4.1968 a proceeding was initiated
    before the Sub Divisional Magistrate of Gyanpur under Section 145 of the
C   Code in respect of a dispute over Plot No.338 situated in village Balapur
    Rohl and it ended in favour of Smt. Ram Piari on whose behalf one
    Doodnath represented the matter as her agent. By an Order dated
    11.4.1968 one Ram Lakhan and his party, who were the respondents in the
    proceeding were restrained from interfering with the possession of Smt.
D   Ram Piari. Ram Lakhan died without leaving any issue. There were six
    respondents besides Ram Lakhan of whom two were his brothers and the
    remaining his nephews. It appears that there was a civil litigation between
    the parties, but we are not concerned in the present appeal about that civil
    dispute. It i' stated that the respondents with the full knowledge that an
E   order under Section 145 had ben promulgated by a public servant lawfully
    empowered disobeyed that direction and disturbed the possession of Smt.
    Ram Piari. Doodnath, who represented Smt. Ram Piari in the proceeding
    under Section 145 of the Code before the S.D.M., filed a petition on 10. 3.
    1972 complaining that the respondents had violated his order, thereupon
    the Sub Divisional Magistrate preferred the petition under Section 188
F   I.P.C. before the Court of the Judicial Magistrate (1st Class), Gyanpur
    (Varanasi) against the respondents which was registered as Criminal Case
    No. 94 of 1973. The trial court, both on the basis of the documentary and
    oral evidence, produced before it, found the respondents guilty of the
    offence punishable under Section 188 of the Indian Penal Code and
G   convicted them thereunder and sentenced each of them to undergo three
    months rigorous imprisonment which conviction was confirmed on appeal
    by the Court of Additional Sessions Judge, Gyanpur in Criminal Appeal
    No.21/1976 on its file.

          The respondents on being dissatisfied by the Judgment of the Appel-
H late Court preferred Criminal Revision No.614/1977 before the High Court
                      STATEOFU.P. v. MATABHIKH [PANDIAN, J.J                  371

 -~   of Allahabad which, for ·the reasons, assigned in the impugned judgment, A
      allowed the Revision and set aside the conviction and sentence passed on
      the respondents mainly on the ground that the complaint in this case had
      been filed not by 'the public servant concerned', namely, the Magistrate
      who passed that order under Section 145 of the Code, but by a successor
      Magistrate and that any successor Magistrate cannot exercise jurisdiction B
      under Section 195 (l)(a) and that the complaint, therefore, is not main-
      tainable in law.
..1
             Being aggrieved by the Order of the High Court the State of U .P.
      has filed this criminal appeal challenging the correctness of the impugned
      Judgment in interpreting the expression 'the public servant concerned'.        C
            The relevant provisions of Section 195 l(a)(i) of the Gode reads
      thus:_

               'No Court shall take cognizance-
                                                                                     D
               (a)(i) of any offence punishable under Sections 172 to 188 (both
               inclusive) of the Indian Penal Code (45 of 18(j(l), or

               (ii) ..............................

               (w) .............................                                     E
              except on the complaint in writing of 'the public servant concerned'
              or of some other public servant to whom he is administratively
              subordinate.'

            The object of this Section is to protect persons from being vexatiously F
      prosecuted upon inadequate materials or insufficient grounds by person
      actuated by malice or illwill or frivolity of disposition at the instance of
      private individuals for the offences specified therein. The provisions of this
      Section, no doubt, are mandatory and the Court has no jurisdiction to take
      cognizance of any of the offence mentioned therein unleos there is a
      complaint in writing of 'the public servant concerned' as required by the G
      Section without which the trial under Section 188 of the Indian Penal Code
      becomes void ab initio. See Dau/at Ram v. State of Punjab, [1962] Supp. 2
      SCR 812. To say in other words a written complaint by a public servant
      concerned is sine      qua
                              non to initiate a criminal proceeding under Section
      188 of the IPC against those who, with the knowledge that an order has H
A
    372                   SUPREME COURT REPORTS                  [1994] 2 S.C.R.

  been promulgated by a public servant directing either 'to abstain from a
                                                                                   '
                                                                                        I
  certain act, of to take certain order, with certain property in his possession       .v

  or under his management' disobey that order. Nonetheless, when the Court
  in its discretion is disinclined to prosecute the wrongdoers, no private
  complainant can be allowed to initiate any criminal proceeding in his
B individual capacity as it would be clear from the reading of the Section
  itself which is to the effect that no Court can take congnizance of any
  offence punishable under Sections 172 to 188 of the !PC except on the
  written complaint of 'the public servant concerned' or of some other public
                                                                                        L
  servant to whom he (the public servant who promulgated that order) is
  administratively subordinate.
c
        A cursory reading of Section 195 {l){a) makes out that in case a
  public servant concerned who has promulgate an order which has not been
  obeyed or which has been disobeyed, does not prefer to give a complaint
  or refuses to give a complaint then it is open to the superior public servant
  to whom the officer who initially passed the order is administratively
D subordinate to prefer a complaint in respect of the disobedience of the
  order promulgated by his subordinate. The word 'subordinate' means
  administratively subordinate to some other public servant who is his official
  superior and under whose administrative control he works.

E         There is a cleavage of opinion among the High Courts as to the
    proper construction of the words 'public servant concerned' appearing in
    Section 195{1){a) of the Code as to whether that expression includes the
    successor in office of the said public servant.

          A Division Bench of th.e High Court of Rangoon in P.D. Patel v.
F   Emperor, AIR {1933) Rangoon 292 has held that the 'public servant'
    concerned in Section 195{1) includes the successor in office also and that
    he is competent to make a complaint.

        This Court in Ajaib Si11gh v. Joginder Singh, AIR {1968) SC 1422
  while interpreting the provisions of Section 195(1)(b) of the old Code after
G making reference to the provisions of Section 559(1) of the old Code
  corresponding to Secti011°35 (1) of the new Code which reads, "Subject to
  the other provisions of this Code, the powers and duties of a Judge or
  Magistrate may be exercised or performed by his successor in office" held
  that "A successor in office of a Magistrate can file a complaint under
H Section 476 of the Code in respect of an offence referred to in Section
                  STATEOFU.P. v. MATABHIKH [PANDIAN, J.J                         373

 \    195(1)(b) of the Code."                                                           A
           Reference may also be made in In re. Subramaniam Chettiar AIR
      1957 Mad. 442 and Public Prosecutor v. Mohammed Al~ AIR (1969) AP
      41.

           A Division Bench of the Patna High Court in Government Advocat<,             B
     Bihar v. Kumar Singh, AIR (1938) Pat 83 has held that making the com-
_t   plaint prescribed in Section 195 (l)(a) of the Code is a public duty and
     responsibility and must not be mistaken for a personal privilege and there
     is nothing against any successor in office of the public servant to whom
     information was given making the complaint under Section 182 !PC.
                                                                                        c
           The Calcutta High Court in Manik Lal Bhagat v. State and Another,
     (1982) Cr!. L.J. 1473 drawing strength on the dictum laid down in Ajaib
     Singh and after making reference to the Kumar S_ingh observed thus:

              "..........the expression 'public servant concerned' in S. 195(1)(a) of   D
              the Code includes the person holding the office of the public
".            servant for the time being, the holder of which made the qrder for
              violation or disobedience whereof a complaint under S. 195(1)(a)
              is made, and also the successor in office of that public servant."

           Contrary to the view in the above decisions, a Single Judge of the           E
     Allahabad High Court held in Mata Bhikh and Others v. State, (1980) Cr!.
     L.J. ~75 that the power to file a complaint must be exercised by the public
     = t concerned personally and in the event of his non-availability, his
            public servant to whom the public servant concerned may be subor-
 ,   dinate has to exercise jurisdiction under Section 195(1)(a) and on the             F
 ~

     above observation, he concluded that a complaint filed by a successor
     Magistrate was not maintainable in law.

            On a scrutiny of Section 195(1)(a), we are of the view that a successor
     in office of a public servant concerned will also fall within the ambit of the
     expression'public servant concerned'. Any other view contrary to it will G
     only create difficulties in certain situations. For example, in a case where
     a public servant concerned promulgates a preliminary order under Section
     133, 145 or 146 of the Code of Criminal Procedure and is transferred or
     retires or ceases to be in office on any account before a final order is
     passed, would it mean that the successor who is under the law to continue H
                                                                                    )

    374                   SUPREME COURT REPORTS                 [1994] 2 S.C.R.

A the same proceeding has no right to file a complaint if the preliminary
  order is disobeyed. The answer would be that the successor in office can
  file a complaint. In every such situation, one cannot expect the superior
  officer to whom the public servant is administratively- subordinate to file a
  complaint against the worngdoers disobeying either the preliminary order
B or the final order promulgated by the public servant concerned.
         Therefore, in the light of the dictum laid down in Ajaib Singh, we are •
  of the view that the successor in office of the public servant gets into the
                                                                                        ).
  same position of the public servant concerned and he is in law eligible to
  file a complaint against wrongdoers. To say in other words, the successor
C in office falls within the ambit of the expression 'public servant concerned'.
  The view taken by the High Court in the impugned judgment cannot be
  sustained and accordingly, the judgment of the High Court is set aside and
  the appeal is allowed.

        However, coming to the question of sentence, after taking irito
D consideration the fact tliat the proceedings commenced in the year 1968
  and the judgment in re1iision by the High Court was rendered in August
  1979, we admonish the respondents under Section 3 of the Probation of                   •...
                                                                                        ),..,



  Offenders Act instead of directing them to undergo the sentence passed
  by the trial Court and as confirmed by the Lower Appellate Court.

            The appeal is accordingly allowed,

     G.N.                                                      Appeal allowed.