( 1 ) THE applicant-accused was convicted by the Magistrate First Class, Jabalpur, under Section 188 of the Indian Penal Code for having contravened an order under section 144 of the Code of Criminal Procedure promulgated by the District magistrate, Jabalpur, and sentenced to pay a fine of Re. 1/- or, in default of payment of the fine, to undergo rigorous imprisonment for one day. The conviction was based on a plea of guilty. On revision, the First Additional Sessions Judge, jabalpur, affirmed both the conviction as well as the sentence. The applicant-accused has, therefore, come up in revision to this Court against his conviction and sentence.

( 2 ) THE main contention of the learned counsel for the applicant-accused is that in so far as there was no complaint before the trial Court in terms envisaged by section 195 (1) (a) of the Code of Criminal Procedure (hereinafter called 'the code'), the trial Court could not have taken cognizance of the offence under that section and that consequently the proceedings are liable to be quashed and the conviction and sentence liable to be set aside.

( 3 ) SECTION 195 (i) (a) of the Code provides :

"no Court shall take cognizance of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. "

( 4 ) IN the instant case, it is common ground that 'the public servant concerned' as envisaged in the aforesaid section was Shri R. C. Shrivastava, the then District magistrate, Jabalpur, who had promulgated the order under Section 144 of the code; but the complaint on the basis of which the prosecution was initiated in the court of the Magistrate" was filed by somebody signing himself as 'p. A. for R. C. Shrivastava, District Magistrate, Jabalpur'. A close examination of the provisions of the section shows that the Courts are prohibited from taking cognizance of an offence under Section 188 of the Indian Penal Code except on' a complaint in writing by the District Magistrate or by some other public servant to whom he is subordinate. That is to say, the filing of a written complaint by the District magistrate or by some other public servant to whom he was subordinate was a condition precedent to the jurisdiction of the trying Magistrate for taking cognizance of the offence under Section 188 of the Indian Penal Code. It is clear that in the instant case there was no complaint in writing of the District magistrate or of some other public servant to whom he was subordinate, and that consequently there was no such complaint as could empower the trying Magistrate to take cognizance of the offence under Section 188 of the Indian Penal Code. A document purporting to be a complaint under Section 195 (1) (a) but signed by 'p. A. for the District Magistrate, Jabalpur' could not be a substitute for a 'complaint in writing of the public servant concerned' as envisaged in Section 195 (1) (a) of the code.

( 5 ) DEALING with a similar contention, Shah J. , (as he then was) in Krishna Tukaram v. Secy. to the Chief Minister, Bombay, (S) AIR 1955 Bom 315 at p. 318 said:

"when the Legislature makes the jurisdiction of a criminal Court dependent upon a complaint in writing by the public servant concerned, you cannot substitute the complaint by some other information or report-- not of the 'public servant concerned' but of some of her person who has moved the Magistrate at the instance of the public servant -and say that the requirements of the statute are complied with. If the legislature has provided a condition precedent to the exercise of jurisdiction by a Court, the condition precedent must be strictly complied with and a substitute cannot in my judgment avail the Magistrate to assume jurisdiction. "

( 6 ) SIMILARLY, in Ramsvvarup v. State, AIR 1952 Assam 68, a Division Bench of the assam High Court presided over by Thadani, C. J. and Ram Labhaya, J. has held that