A public servant can only make a complaint without being examined on solemn affirmation if the complaint is made in the discharge or purported discharge of the public servant's official duties.

1. This application is directed against the prosecution of the petitioner in case No. C-161 of 1974 pending before a Judicial Magistrate at Siwan. The petitioner is a practising advocate at Siwan. The complaint against him was filed by the then Civil Assistant Surgeon, Siwan, Dr. Anand Mohan. In his complaint petition the complainant alleged that on the date of the occurrence at about 4.30 P. M. while he was on out-door duty and examining a patient, the petitioner went there along with another advocate and asked him to give an injection to a child which they had brought to the hospital. The doctor asked them to wait for a few minutes as the syringe was under sterilization and he himself was busy with the examination of some outdoor patients. The petitioner however, became furious at this and started hurling abusive and defamatory language against the doctor. The petitioner and his companion even used a criminal force against the doctor with intent to prevent him from discharging his duties as a public servant and they threatened to even kill him. The complainant alleged that the petitioner had deliberately and intentionally lowered him down in the estimation of his friends, well-wishers, admirers and staff of the hospital.

2. On 4-8-1974 the Subdivisional Magistrate, Siwan, passed the impugned order taking cognizance against the petitioner for offences under Ss. 353, 500 and 506 (2) of the Indian Penal Code. The complainant was not examined on solemn affirmation before this order was made. The learned subdivisional Magistrate mentioned in his order that a complaint petition had been received from Dr. Anand Mohan, Assistant Civil Surgeon, Siwan that the allegations appeared to be prima facie true and, therefore, cognizance was taken against tire accused. In pursuance of the order of the learned Subdivisional Magistrate, summons was issued against the petitioner.

3. Learned Counsel for the petitioner submits that the learned Subdivisional Magistrate had erred in taking cognizance against the petitioner without examining the complainant on solemn affirmation. Learned Counsel has referred me to S. 200 of the Code of Criminal Procedure, 1898, (herein" after to be referred to as the Code) and bas pointed out that a magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. The proviso (aa) to S. 200 is also relevant in connection with the submissions made before me by the learned Counsel for both the sides. It reads thus-

"(aa) when the complaint is made in writing, nothing herein contained shall be deem. ed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties."

Learned Counsel for the petitioner contends that the complainant in this case, namely, the doctor Is not entitled to the benefit of this proviso inasmuch as he cannot be said to have filed the complaint while acting or purporting to act in the discharge of his official duties. Learned counsel referred to me a recent decision of a Bench of the Calcutta High Court in Shyama Prasanna Das Gupta. V/s. State (1976 Cri LJ 1511 (Cal)) where it was held relying on an earlier Bench decision of the same Court that where a police Officer investigated a private complaint and thereafter submitted a petition of complaint, he did so not as a public servant but as a complainant and as such his examination under S. 200 was essential. The Assam High Court as well took similar view, in the case of Kalu Munchi V/s. State of Assam, 1965 1 CrLJ 424. It was held in that case that if the complaint by a magistrate was not covered by the provisions of S. 195 of the Code it could not be said to be a complaint filed either by a court or by a public servant in the discharge of his official duty and thus proviso to S. 200 would not be attracted. Reference was also made to the