V. D. BHARGAVA, J.

( 1 ) THIS is an appeal by the State against the acquittal of one Rewa Chand.

( 2 ) A complaint against the respondent was filed under Section 182, I. P. C. A letter is alleged to have been sent by the respondent to the District Magistrate and a copy of which was also sent to the Superintendent of Police and the Inspector General of Police. It related to the conduct of some-Constables and the station officer of the Kotwali of Agra. The complaint was that those constables" and the station officer wanted some money toilsome function. And since he had not paid, he was-being harassed. On enquiry by some police officers the complaint was found to be false and, therefore, a complaint was filed by the District Magistrate at Agra in the Court of Sri n. L. Kackar. Later on it was transferred to the Court of Sri N. C Jain. While the case was pending in the Court of Sri Kackar an application for transfer had been moved, inter alia, on the ground that there had been wumerous dates fixed in the case when the prosecution witnesses should have been present, but they were not present. The application was dismissed and one of the grounds was that since Mr. N. L. Kackar had been transferred the application had be-come infructuous,

( 3 ) THE accused had taken certain legal pleas and among the others there were two: (1) that the complaint had been filed by the District Magistrate, while actually it should- have been filed by the Inspector General of Police or the Senior Superin-tendent of Police, because the complaint was against the station officer of Kotwali and certain constables, who were not subordinate to the district Magistrate; and (2) that in this case the District Magistrate was the complainant and he did not actually appear on the date of hearing, it being incumbent upon the complainant to attend the court, the ac cused was entitled to an acquittal.

( 4 ) BOTH these contentions found favour with the learned Magistrate and he acquitted the accus-ed. This case came up before one of us and since there was on the second point a difference of opinion between this Court and the other Courts and since the referring Judge did not agree with the decision of this Court a reference to two Judges had been made. Therefore this case has come up before us for hearing.

( 5 ) ON behalf of the State it has been contended that the decision of the Magistrate on both the points is incorrect and, therefore, this Court should send the case back for trial. Evidence has not yet been led and the respondent has been acquitted on these technical grounds. On behalf of the respondent, on the other hand, it is urged that the decision of the learned Magistrate on both the points is correct. In our opinion the decision on the first point does not appear to be correct. But the decision on the other point is correct, and, under the circumstances, the appeal has to be dismissed.

( 6 ) THE learned Magistrate has held that the District Magistrate could not file the Complaint either in his executive capacity or in his judicial capacity. He has held that if it was in his judicial capacity then he should have recorded his statement under Section 200, Cr. P. C. If he was acting in his executive capacity, he has held, that, the authority who could have moved was the authority to whom the public servant was subordinate, viz. , the Superintendent of Police or any authority higher than that authority, viz. , the Inspector General of Police, to both of whom the application had been addressed; but not the District Magistrate. In our opinion that argument of the learned Magistrate is incorrect. 6a. Section 195, Cr. P. C. says:

(1) No Court shall take cognizance: a. of any offence punishable under Sections 172 to 188, I. P. C. , except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. In order to understagd the meaning of "public servant" when a complaint is being filed under section 182, we have t

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