The first accused in P.R.C. No.1 of 1954 is the petitioner. A complaint was filed against him and eleven others for offences under sections 343, 348 and 330, Indian Penal Code.

The petitioner, who is the Inspector of Police, Srikakulam, in the course of an investigation into a series of cases of house breaking and theft questioned P.W.1 on the 27th October, 1952, in the police station regarding one of such occurrences. When P.W.1 denied knowledge of it, he directed the subordinate officials, who were there, to investigate further into the matter. In pursuance to these directions, P.W.1 was taken to a corner and, after further questioning, they handcuffed him and chained him to the iron bar of the door. It is also the prosecution case that on the 28th October when the petitioner went to the police station and saw the plight of P.W.1, he abused the constables for handcuffing him, locking him up and directed, that he should be released immediately. But this direction of the petitioner was not obeyed, and P.W.1 continued in wrongful detention. Apparently the petitioner did not know about this. It also appears that later on P.W.1 was illtreated by the other accused in the case. It is in these circumstances that a complaint for offences under sections 348 and 330, Indian Penal Code, was filed before the Sub-Divisional Magistrate of Srikakulam.

A preliminary point was raised that the complaint was barred under section 53 of the Madras District Police Act, 1859. To appreciate this point, it is necessary to state that the alleged offence was committed on 6th November, 1952, while the complaint was filed on 26th March, 1953. Instead of deciding this point, of limitation, the lower Court stated that it was not free from difficulty and that a circular of this Court and a decision of Ramaswami, J., in Umanatha Rao v. State1precluded the Magistrate from giving his opinion on the point at that stage. The aggrieved“first accused has filed this petition.

The first question that arises for consideration is whether the accused person is not entitled to raise an objection to the maintainability of the complaint either on the ground of limitation or of jurisdiction or any other analogous ground. In Innasia Pillai v. Perumal Chettiar2, Ramaswami, J., referred to a circular issued by this Court on the 10th January, 1931 and observed that the case before him illustrated the abuses pointed out by that circular. The circular is in the following terms:-

“Instances have come up to the High Court which disclose a system of procedure not contemplated by the Code is developing in the Subordinate Criminal Courts. In warrant cases, the accused persons, before they are charged and put upon their defence anticipate their defence by petitions raising preliminary points upon which the Court passes judgment and these are then brought up on revision to the High Court pending which the trial of the case is adjourned. The High Court desires to impress upon the lower Courts that this procedure is unwarranted and makes for delay and extra work. An accused person has no right to raise a preliminary point before he is charged. He must wait to defend himself till he is charged and if he is convicted, his first remedy is in most cases by way of appeal.”

It may be mentioned that the learned Judge dismissed the revision petition on the ground that the preliminary objection taken in that case had no substance. The objection raised there was that the complaint fell within the mischief of section 195(1)(c) and was therefore unsustainable without the same having been filed by the Civil Court. The learned Judge held that a complaint by a Civil Court was not necessary as section 476 of Criminal Procedure Code had no application. It is only by way of introduction that the circular was quoted. Therefore, if at all, the observations are merely obiter.

In Umanatha Rao v. State1the same learned Judge laid down that the accused had no right to raise a preliminary point before he was c