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1942 Supreme(Oudh) 52
HIGH COURT OF OUDH
Agarwal, J.
Sheomangan Singh - Appellant
Versus
Emperor - Respondent
Decided On : 28-05-1942
JUDGMENT
Agarwal, J - This is a reference by the learned Sessions Judge of Gonda recommending that the conviction of Sheo Mangan Singh under Section 174, Penal Code, be set aside. Sheo Mangan Singh was summoned as a prosecution witness in a case under Section 110, Criminal P.C. The police reported that he refused to take the summons and said that he would not attend Court. In fact he did not attend Court on the date fixed. The learned Judge has made this reference on the ground that the conviction under Section 174, Penat Code, is bad because there was no complaint made by the public servant concerned as required by Section 195(a), Criminal P.C. Under the said section no Court shall take cognizance of any offence under Sections 172 to 188, Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. An offence under Section 174, Penal Code, is against the public servant before whom the accused fails to appear. So in this case the complaint should have been made by the Magistrate in whose Court the case under Section 110, Criminal P. C, was pending and who had summoned the accused. Admittedly there was no such complaint and the case started on the complaint of the Sub-Inspector. The Magistrate had no jursidiction to convict the accused as the case was not started by a competent person. I therefore accept the reference and order that the conviction of Sheo Mangan Singh be set aside and he be acquitted. The fine if paid will be refunded.
