Full Judgment Text
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PETITIONER:
BHOLANATH AMRITLAL PUROIHIT
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT:
14/08/1970
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
SIKRI, S.M.
DUA, I.D.
CITATION:
1971 AIR 194 1971 SCR (2) 817
1970 SCC (2) 414
ACT:
Indian Post Office Act, 1898 (6 of 1898). s. 72--Section
requiring complaint 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. submitted by police after investigation--Magistrate
taking cognizance of offence--Trial whether invalid for non
compliance with s.72 of Post office Act.
HEADNOTE:
The appellant was tried and convicted by the Judicial
Magistrate 1st 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 that the
appellant’s 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 a
police report under s. 173 of the Code of Criminal Procedure
after investigation.under Ch. XIV (Part V) of that Code.
HELD : The expression complaints is not defined in the Post
Office Act but the complaints 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 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 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.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
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filing 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
requirement of s.72. [819 F-H]
If the legislature contemplated that a mere information 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
above is a clear indication of the fact, that the mandate of
s. 72 is that there should be a formal complaint as
contemplated by s. 4(1) (b) of the Criminal Procedure Code.
[820 A-H]
Since there was no such complaint in the present case the
magistrate was incompetent to take cognizance of the offence
and the appellants trial was invalid The appeal must
accordingly be allowed. [820 D]
up.CI(P)/71-8
818
Emperor v. Rohini Kumar Sen X Cal. Weekly Notes 1029;
Gnana Prakasam Baranahas v. State I.L.R. [1953] T.C. 600;
Narotamdas Bhikabai v. State of Gujarat (1962) 2 Cr. L.J.
165; and Alubhai Mujabhai v. State of Gujarat 7 Gujarat Law
Reporter 698; referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 43 of
1967.
Appeal from the judgment and order dated August 29, 1966 of
the Gujarat High Court in Criminal Revision Application No.
291 of 1966.
H. K. Puri, for the appellant.
K. L. Hathi and R. H. Dhebar for the respondent.
The Judgment of the Court was delivered by
Hegde, J The appellant was tried 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 sentenced to suffer rigorous
imprisonment for one 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 contention taken by him was
that the learned magistrate was not competent to take
cognizance of the case against him as there was no complaint
as required by s. 72 of 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 J., the.
learned judge rejected the revision petition with these
cryptic remarks :
"Heard the learned Counsel for the petitioner.
I do not wish to exercise my revisional
jurisdiction in this matter."
Thereafter this appeal was brought after obtaining a
certificate from the High Court under Art.134(1) (c) of the
Constitution.
The learned Counsel for the appellant, Mr. H. K. Puri chal-
lenged the conviction of the appellant on the sole ground
that the appellant’s trial was illegal as the case against
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the appellant was not proceeded on the basis of a complaint
made by order of, or under authority from the Director
General of 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 making an enquiry under Ch. XIV(Pt.V) of that
Code. It
819
is true that the investigation of the case was launched on
the basis of the information given by the postal
authorities. We shall even 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, being 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 appellant
is that he fraudulently 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) and, (b), 55,
56, 58, 59, 61, 64, 65, 66 and 67 of this Act,
unless upon complaint made by order of, or
under authority from, the Director General or
a Post Master General."
The question for consideration is whether there is such 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
cannot 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 they
postal department for a criminal offence. Ile 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. 72 is
launched, the authorities mentioned in that section should
have examined the appropriateness of launching a
prosecution and either Me a complaint themselves or
authorise the following of such a complaint. Such a
requirement will not be satisfied if the concerned authori-
ties 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 requirements of s. 72. If the
legislature contemplated
820
that a mere information 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 the
sanction of the concerned authority then the legislature
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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 above is a clear
indication of the fact that the mandate of s. 72 is that
there should be a formal complaint as contemplated by s.
4(1) (h) of the Criminal Procedure Code which says :
"’Complaint’ 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 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 complaint’ 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 the case was an invalid one and
that the appellant was convicted without the authority of
law.
The meaning of 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 meaning of the word
"complaint" in s. 72 of the Act came up before a Division
Bench of the Calcutta High Court in Emperor v. Rohini Kumar
Sen The Court held that the prosecution therein was vitiated
because of the failure to comply with the requirements of s.
72 of the Act. A similar view was taken by the Travancore
Cochin High Court in Chanaprakasam Baranabas.v. State(2).
Raju J. himself took that view in Narotamdas Bhilkhabai v.
State of Gujarat(3). 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 Alubhai
Mujabhai v. State of Gujarat(4). No contrary decision. was
brought to our notice.
For the reasons mentioned above we allow this appeal, set
aside the conviction of, the appellant and acquit him. The
fine levied if it bad been recovered from the, appellant
will be refunded to him.
G.C. Appeal allowed
(1) x Cal. Weekly’ Notes 1029.
(2) I.L.R. 1953 T. C. 600.
(3) (1962) 2, Cr. L. J. 165.
(4) 7 Gujarat, Law Reporter 698.
821