U.P. Vs. Mata Bhikha & Ors  INSC
167 (9 March 1994)
S.R. (J) Pandian, S.R. (J) Sawant, P.B.
1994 SCC (4) 95 JT 1994 (2) 565 1994 SCALE (2)235
Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J.- The short point
involved for determination in this appeal is with regard to the interpretation
of the expression 'the public servant concerned' appearing in Section 195(1)(a)
of the Code of Criminal + From the Judgment and Order dated 3-8-1979 of the
Allahabad High Court in Crl. Rev. No. 614 of 1977 96 Procedure (hereinafter
referred to as 'the Code'). The brief facts of the case which led to this
controversy are as follows :
is the admitted case that on April 11, 1968 a proceeding was initiated before
the Sub-Divisional Magistrate of Gyanpur under Section 145 of the Code in
respect of a dispute over Plot No. 338 situated in Village Balapur Rohi and it
ended in favour of Smt Ram Piari on whose behalf one Doodnath represented the
matter as her agent. By an order dated April 11, 1968 one Ram Lakhan and his party, who
were the respondents in the proceeding were restrained from interfering with
the possession of Smt 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 is stated that the respondents with the full knowledge that an
order under Section 145 had been 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 March 10, 1972 complaining that
the respondents had violated his order, thereupon the Sub- Divisional
Magistrate preferred the petition under Section 188 IPC 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 convicted them there under 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 of
1976 on its file.
respondents on being dissatisfied by the judgment of the appellate court
preferred Criminal Revision No. 614 of 1977 before the High Court of Allahabad
which, for the reasons, assigned in the impugned judgment, 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 under Section 195(1)(a) and that the
complaint, therefore, is not maintainable in law.
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".
relevant provisions of Section 195(1)(a)(i) of the Code reads thus:
Court shall take cognizance 97 (a)(i) of any offence punishable under Sections
172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii)
(iii) except on the complaint in writing of 'the public servant concerned' or
of some other public servant to whom he is administratively subordinate."
object of this section is to protect persons from being vexatiously prosecuted
upon inadequate materials or insufficient grounds by person actuated by malice
or ill- will 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 offences mentioned therein unless there is a complaint in writing of 'the
public servant concerned' as required by the section without which the trial
under Section 188 of the Indian Penal Code becomes void ab initio. See Daulat
Ram v. State of Punjab'. 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 been promulgated by a public servant directing either 'to
abstain from a certain act, or to take certain order, with certain property in
his possession 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
individual capacity as it would be clear from the reading of the section itself
which is to the effect that no court can take cognizance of any offence
punishable under Sections 172 to 188 of the IPC except on the written complaint
of 'the public servant concerned' or of some other public servant to whom he
(the public servant who promulgated that order) is administratively
cursory reading of Section 195(1)(a) makes out that in case a public servant
concerned who has promulgated 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 subordinate to prefer a
complaint in respect of the disobedience of the order promulgated by his
subordinate. The word 'subordinate' means administratively subordinate i.e.
some other public servant who is his official superior and under whose
administrative control he works.
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.
Supp 2 SCR 812: AIR 1962 SC 1206: 1962 Cri LJ 286 98 9. A Division Bench of the
High Court of Rangoon in P.D. Patel v. Emperor2 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 Singh v. Joginder Singh3 while interpreting the provisions
of Section 195(1)(b) of the old Code after making reference to the provisions
of Section 559(1) of the old Code corresponding to Section 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 Section 476 of the Code in respect of an offence
referred to in Section 195(1)(b) of the Code."
Reference may also be made in Subramanian Chettiar, Re4 and Public Prosecutor
v. Mohammed Ali5.
Division Bench of the Patna High Court in Government Advocate, Bihar v. Kumar
Singh6 has held that making the complaint prescribed in Section 195(1)(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
The Calcutta High Court in Manik Lal Bhagat v.
State7 drawing strength on the dictum laid down in Ajaib Singh3 and after
making reference to the Kumar Singh6 observed thus :
expression 'public servant concerned' in Section 195(1)(a) of the Code includes
the person holding the office of the public servant for the time being, the
holder of which made the order for violation or disobedience whereof a
complaint under Section 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 Allahabad
High Court held in Mata Bhikh v. State8 that the power to file a complaint must
be exercised by the public servant concerned personally and in the event of his
non-availability, his senior public servant to whom the public servant
concerned may be subordinate has to exercise jurisdiction under Section
195(1)(a) and on the above observation, he concluded that a complaint filed by
a successor Magistrate was not maintainable in law.
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 2 AIR 1933 Rang 292: 146 IC
653 3 AIR 1968 SC 1422: 1969 Cri LJ 4: 70 Pun LR II 31 4 AIR 1957 Mad 442: 1957
Cri LJ 765 5 AIR 1969 AP 41: 1969 Cri LJ 145 6 AIR 1938 Pat 83: 173 IC 432: 39 Cri
LJ 314 7 1982 Cri LJ 1473: (1982) 1 Cal HN 149 8 1980 Cri LJ 575: 1979 All Cri
R 454: 1980 All Cri C 72 99 to it will only create difficulties in certain
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 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 wrongdoers disobeying either the preliminary order
or the final order promulgated by the public servant concerned.
Therefore, in the light of the dictum laid down in Ajaib Singh3 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 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
However, coming to the question of sentence, after taking into consideration
the fact that the proceedings commenced in the year 1968 and the judgment in
revision 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.