Bholanath Amritlal Puroihit Vs. State of
Gujarat [1970] INSC 161 (14 August 1970)
14/08/1970 HEGDE, K.S.
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 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.
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 challenged the conviction of the appellant on the sole ground that the
appellant's trial was illegal as the case against 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
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 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 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.
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