Bholanath Amritlal Purohit v. State of Gujarat

817 A B ## c D E F G H _Indian Post Office Act,_ 1898 (6 _of_ 1898), _s._ _12-Section requiring com-_ _plaint for offence covered by_ _s._ _55_ _to made by order of or under authority_ _from Director-General or Post Master_ _General-Information_ _about offence_ _under_ _s._ _55_ _given_ _by_ _postal authorities to_ _police-Report_ _under s._ 173 _Cr. P.C. sub1nitted by police after investigation-Magistrate taking_ cog~ _'.nizance_ _of_ _offence-Trial_ _whether invalid for_ non~cotnpliance _with_ s.72 _";of_ _Post office Act._ The appellant was tried and convicted by tbe Judicial Magistrate !st Class Broach under s.55 of the Indian Post Office Act, 1898. In appeal the conviction was affirmed by the Sessions Judge. The revision petition in the High Court failed and appeal with certificate was filed in this Court. The conviction was challenged on the ground tbat the appellanfs trial was illegal as the case against him had not proceeded on the basis of a complaint made by order of or under authority from the Director General or Post Master General as required by s. 72 of the Indian Post Office Act. the same having been taken cognizance of on the basis of ;.l police report under s. 173 of the Code of Criminal Procedure after invc~ti­ gation under Ch. XlV (Part V) of that Code. HELD : The expression 'complaint' is not defined in the Post Office Act but the 'complaint' contemplated under s.55 is one that initiates a prosecution on the basis of which the accused if found guilty is punishable with in1prisonmcnt for a term which may extend to two years and also with fine. That being so the expression 'complaint' in s. 72 cannot be equated to mere information or accusation. The context in which the expression is used in s. 72 indicates that it is a formal document indicting an offic\!r of the postal department for a criminal offence. The purpose behind s. 72 is that officials of the postal department should not be harassed with frivolous prosecutions an<l that before any of the prosecutions contemplated by s. 72 is launched, the authorities mentioned in that section should have examined the appropriateness of launching a prosecution and either file a complaint themselves or authorise the filing of such a complaint. Such a requirement will not be satisfied if the concerned authorities 1ncrely ask the police to investigate into the case and take appropriate action. An information laid before the police or even a sanction granted for a prosecution by the police Vi'ould not nleet the requirement of s.7~. [819 F-Hl If the legislature contemplated that a mere informauon to the police by the appropriate authority is sufficient then there was no need to enact s.72. Further if all that was required was to obtain sanction of the concerned authority then the legislature would have enacted a provision similar to s. 197 of the Cr. P.C. The fact that the legislature did not choose _to_ adopt either of the two courses"'mentioned abqve is a clear :ndication of tbe fact :hat the mandate of s. 72 ¥.; that there should be a formal complaint as contemplated by s. 4(1) (b) of the Crim;nal Procedure Code. [820 A-BJ Since there was no suqh complaint in the present case the magistrate was incomPt>!ent to take cognizance of the o:"ence and the appellant's trial was invalid. The appeal must accordingly be allowed. [820 DJ # BHOLANATH AMRITLAL PUROHIT _v._ STATE OF GUJARAT _August_ 14, 1970 ## [S. M. Suoo, K. s. HEGDE AND I. D. DUA, JJ.] Ll69Sup.Cl(P)/71-8 818 SUPREME COURT REPORTS (197 l] 1 S.C.R. _Emperor_ v. _Rohini_ _Kumar_ _Sen X_ Cal. Weekly Notes 1029'; _G11a11a-_ A _Prakasam Baranabas_ v. _State_ l.L.R. [1953] T.C. 600; _Narotamdas Bhikabai_ v. _State_ _of_ _G1tjarat_ (1962) 2 Cr. L.l. 165; and _Alublwi_ _Mujabliai_ v. _State_ _of_ _Gujarat_ 7 Gujarat Law Reporter 698; referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 43 of 1967. Appeal from the judgment and order dated August 29, 1966 cf the Gujarat High Court in Criminal Revision Application No. 291 of 1966. _H. K. Puri,_ for the appellant. _1<._ _L. Hathi_ and _R._ _H._ _Dhebar,_ for the respondent. The Judgment of the Court was delivered by **B** ## c **Hegde,** **J.** The appellant was t'ried and convicted by the Judicial Magistrate 1st Class, 1st Court, Broach under s. 55 of the Indian Post Office Act, 1898 (to be hereinafter referred to as the Act) and Seilltenced to suffer rigorous imprisonment for one **D** month and to pay a fine of Rs. 100 / - in default to suffer rigorous imprisonment for three weeks. In appeal that conviction was affirmed by the learned Sessions Judge, Broach. In his revision petition before the High Court of Gujarat, the principal contenticn taken by him was that the learned magistrate was not competent to ta.ke cognizance of the case against him as there was E no complaint as required by s. 72 ()f the Act. The revision petition was admitted for hearing and notice issued to the respondent but when the matter came up for hearing before Raju L the learned judge rejected the revision petition with these cryptic remarks: "Heard the learned Counsel for the petitioner. I F do not wish to exercise my revisional jurisdiction in this matter." Thereafter this appeal was brought after obtaining a certificate from the High Court llJllder Art.134 ( 1 )( c) of the Constitution. The learned Counsel for the appellant. Mr. H. K. Puri cha1- G lenged the conviction of the appellant on the sole grounn that the, appe113!Ilt's tria1 was illegal as the case against the appellant was not proceeded on the basis of a crn;nplaint made by order of, or under authoritv from. the Director~ General or Post Master General as required by s. 72 of the Act. The case against the appellant was taken cognizance of on the basis .of a. report by the police under s. 173 of the Cr.P.C. #### after makmg an enquiry under Ch. XIV(Pt.V) of that Code. It **H** _B_ ## c D E F G BHOLANATH _v._ GUJARAT STATE _(Hegde,_ _I.)_ 819 is true that the investigation of the case was launched on the basis of the i,nformation given by the postal authorities. We shall ewn assume that the investigation in question was made after obtaining the sanction of the concerned Post Master General as contended by the learned Counsel for the respondent. Section 55 of the Act reads thus : ''Whoever, be~ng an officer of the Post Office entrusted with the preparing or keeping of any document, fraudulently prepares the document incorrectly, or alters or secretes or destroys the document, shall be punishable with imprisonment for a term which may extend to two years, and shall also be punishable with fine."' In brief the accusation against the appellaro.t is that he frauoolently prepared certain documents in the post office where he was serving as a delivery clerk. Section 72 of the Act prescribes : "No Court shall take cognizance of an offence punishable under any of the provisions of sections 51, #### 53, 54, clauses (a) aro.d (b), 55, 56, 58, 59, 61, 64, 65, 66 and 67 of this Act, unless upon complaint made by order of, or under authority frotn, the Director General or a Post Master General." The question for consideration is whether there is sucn . a complaint" in this case ? The expression "complaint" is not defined in the Act but the "complaint" contemplated under s. 55 is one that initiates a prosecution on the basis of which the accused if found guilty is punishable with imprisonment for a term which may extend to two years and also with a fine. That being so the expression "complaint" in s. 72 c3lllllot be equated to mere information or accusation. The context in which that expression is used in s. 72 indicates that it is a formal document indicting an officer of the postal department for a criminal offence. The purpose behind s. 72 is that officials of the postal department should not be harassed with frivolous prosecutions and that before any of the prosecutions contemplated by s. 7 2 is launched. the authorities mentioned in that section should have examined the appropriateness of launching a prosecution and either file a complaint themselves or authorise the filitne: of such a complaint. Such a requirement will not be satisfied if the concerned authorities merely ask the police to investigate into the case and take appropriate action. An information laid before the police or even a sanction granted for a prosecution by the police would not ### meet the requiremeints of s. 72. If the legislature contemplated ## I 820 SUPREME COURT REPORTS [ 1971] 1 S.C.R. that a mere information to the police by the appropriate authority A #### is sufficient then there was no need to enact s. 72. Further if all that was required was to obtain the sanction of the concerned authority the!l the legislature would have enacted a provision similar to s. 197 of the Cr.P.C. The fact that the legislature did not cho')se to adopt either of the two courses mentioned above is a clear indication of. the fact that the mandate of s. 72 is that B there should be a furmal complaint as contemplated by s. 4 ( 1) (h) of the Criminal Procedure Code which says : " 'Co;nplaint' means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person whether known ## or unknown has committed an offence, but it does not c include the report of a police officer." If we understand the word 'complaint' in s. 72 of the Act as defined under s. 4(1) (h) of the Cr.P.C., as we think we should, then there was admittedly no 'compl~int' against the appellant which means that the learned magistrate was incompetent to take cognizance of the case. From that it follows that the trial of D the case was an invalid one and that the appellant was convicted without the authority of Jaw. The meaning o{ the word "complaint" in s. 72 of the Act had come up for consideration before several High Courts. The conclusion reached by those High Courts accords with that reached by us. As far back as 1906 the mean~ng of the word E "complaint" in s. 72 of the Act came up before a Division Bench of the Calcutta High Court in _Emperor_ v. _Rohini Kumar Sen_ (1). 1be Court held that the prosecution therein was vitiated because of the failure to comply with the requirements of s. 72 o{ the Act. A similar view was taken by the Travanco.re Cothin High Court in _Cnanaprakasam Baranabas_ v. _State(')._ R:aju J. himself took F that view in _Narotamdas Bhikhabai_ v. _Stale_ _of Gujarat(")._ That' decision was rendered by the learned judge on September 2, 1963. The same view was taken by another bench of the Gujarat High Court in _A lubhai Mujabhai_ v. _State_ _of Gujarat(_ _[4]_ _)._ No contrary decision was brought to our notice. For the reasons· mentioned above we al!ow this appeal. set G aside the conviction of the appellant and acquit him. The fine levied if it had been recovered from the appellant will be refunded to him. G.C. (J) ~~X Cal. Weekly Notes !029.~~ (2) l.L.R. 1953 T. C. 600. (3) (1962) 2, Cr. L. J. ! 6;. (4) 7 Gujarat Law Repoter 698. _A ppea/ a/lowed._ ## I