A complaint by the court is necessary for the prosecution of an offence under Section 211 of the Indian Penal Code, where the accused has been discharged in a previous complaint made by him to the court.

ORDER :- This is a revision filed against the order of the Stationary Sub Magistrate, Bhavani. The petitioner herein preferred two complaints against one N. Chidambaram Mudaliar, an inspector of Police before the Sub Divisional Magistrate, Gobichettipalayam, one complaint was made on 22-4-1950 and the other on 2-11-1950. Both were made before the same Sub Divisional Magistrate. In both the cases, Chidambaram Mudaliar, the Inspector of Police was discharged. The said Chidambaram Mudaliar thereafter moved the police to file a charge sheet against the petitioner herein under S. 47 of the Madras District Police Act. A petition was, thereupon, filed in this court to quash those proceedings on the ground that complaint by the Sub Divisional Magistrate under S. 195(1)(b) of the Criminal Procedure Code was necessary. The petition came on for hearing before Ramaswami, J. who dismissed the petition but observed that that was not the stage when the High Court will interfere and the points taken must be taken before the trial court and the trial court should take into consideration these objections as and when they had to be considered and dispose of the case according to law.

In an earlier decision reported in - Innasia Pillai v. Perumal Chettiar, AIR 1953 Mad 1008 (A), Ramaswami, J. has referred to a certain Circular Order issued by this court in 1931. In that Circular order, it is mentioned that in warrant cases accused persons before they are charged and put on their defence anticipate their defence by petitions raising preliminary points upon which the court passed judgment and those judgments are then brought up in revision to the High Court pending which the trial of the case is adjourned. By the Circular order this court desired to impress upon the lower courts that this procedure is unwarranted and makes for delay and extra work. It was further stated that 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 an appeal. So far as I am concerned, this is the first time I see this Circular order as quoted in the above decision. Speaking from personal experience, I think the practice in this High Court has been that where a preliminary objection to the very cognizance of the offence by the Magistrate could be taken, such point can be raised before the lower court itself and, in fact, it ought to be raised before the lower court and then the aggrieved party may come up in revision before this court; needless waste of time would be avoided when such preliminary objections are taken and are upheld.

The decision of Lakshmana Rao, J. in - Parandhamayya v. Nagabhushanam, AIR 1939 Mad 579 (B), is authority for the position that when the objection raised goes to the root of the case it should not be reserved for consideration till the entire evidence is recorded. In cases where the court cannot take cognizance of certain offences unless on complaint by court or other authority and there is no complaint by court or the other authority, if the accused is not permitted to raise the preliminary objection he will be compelled to undergo the whole trial and if, on the merits, he is convicted, he must go to jail and raise the point in appeal; though if raised as a preliminary objection, it may be allowed and the complaint itself would be dismissed. With great respect to Ramaswami, J. I do not think that he intended that such a point should not be taken at all as a preliminary objection, nor could he have intended that if raised it should not be considered as a preliminary objection. He seems to have extracted the Circular order for the purpose of the case before him and I think the case itself reported in - AIR 1953 Mad 1008 (A), does not decide the point. On a wrong interpretation of the above decision, the lower court has refused to consider the objection raised and refused to decide it.

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