This is an application to revise the appellate order of the Sub-Divisional Magistrate, Namakkal, confirming the conviction and sentence passed on the 25 petitioners herein, of an offence under section 143 read with section 188, Indian Penal Code and the sentence of a fine of Rs. 100 on each of the petitioners.

On the 13th and 14th January, 1946, the Sub-Magistrate of Attur passed orders under section 144, Criminal Procedure Code, restraining all the petitioners who belong to one of the factions in the Keeripatti village in Attur taluk from conducting the ‘bull play’ in connection with the Pongal festival in a village temple. In defiance of this prohibitory order, the petitioners formed themselves into an unlawful assembly and in spite of the warning given by the police officers on the spot, conducted the ‘bull play’ on the occasion of the festival. For this offence, they were charge-sheeted for being members of an unlawful assembly with the common object of committing an offence, viz., the defiance of the order under section 144, Criminal Procedure Code, which itself is an offence under section 188, Indian Penal Code, tried and convicted and sentenced to the fines above stated. Having failed in their attempt to get the conviction and sentence set aside in appeal, the petitioners now seek to revise the order of the lower appellate Court.

The only substantial point urged in revision is that in the absence of a complaint by the public servant who promulgated the order under section 144, Criminal Procedure Code, no Court could take cognizance of the offence under section 143; because the real offence is one under section 188, Indian Penal Code, for which the necessary pre-requisite is a complaint under section 195(1)(a), Criminal Procedure Code. Both the lower Courts have rejected this contention on the ground that the petitioners have committed two distinct offences, viz., one under section 143, Indian Penal Code, and the other under section 188, Indian Penal Code and it is within the absolute discretion of the prosecution to choose either or both of the offences for the purpose of prosecution. Having chosen to prosecute under section 143, Indian Penal Code giving up as it were the offence under section 188, Indian Penal Code, there is no prohibition on the prosecution from proceeding with the inquiry and trial under section 143, Indian Penal Code, without a complaint as stated above. It is therefore according to the lower Courts, a matter for election for the prosecuting agency and the learned Sub-Divisional Magistrate finds nothing illegal in this.

The authorities on this question are not quite uniform nor easy to reconcile. But the more authoritative and recent decisions of this Court proceed upon a line of reasoning culminating in a conclusion to the effect that in such cases a complaint from the public servant concerned is essential. It is more in consonance with natural justice and equity that where on the same facts a general offence which does not require a complaint by a Court or a public servant is committed along with a more aggravated particularised form of offence, it is not open to the prosecution to circumvent the provisions of section 195, Criminal Procedure Code by resorting to proceed with the general minor offence without attempting to move the Court or officer concerned for taking action under section 195, Criminal Procedure Code. In Perianna Muthirian v. Vengu Aiyar1, Curgenven, J., in dealing with a case where the facts stated in the complaint disclosed an offence under section 193, Indian Penal Code, committed in relation to a proceeding in Court has laid down that no Court can take cognizance of such an offence otherwise than in the manner prescribed by section 195, Criminal Procedure Code, and it would make no difference that the complaint in order to evade that provision elects to name the offence as one for which no complaint by the Court or public officer was necessary. The specific offence should