In Re: P. Varadarajulu Naidu

Phillips, J.—The only point argued before us among the many objections taken in the revision petition, is that the complaint was filed without

the authority of Government. A telegram was sent by Government to the District Magistrate (Ex. A) and it expressly authorised the Public

Prosecutor to file a complaint against Varadarajulu Naidu u/s 124-A, Indian Penal Code. It further authorises him to act immediately if the District

Magistrate thinks it advisable after consulting him, and this consultation does not refer as suggested by Mr. Srinivasa Aiyangar to the actual filing of

the complaint. The last sentence of the telegram enjoins the District Magistrate to submit the complaint prepared "" for issue of supplemental

sanction."" It is contended that these words modify the previous portion of the order and render the authority invalid. I, however, agree with the

Sub-Divisional Magistrate that this last sentence must be read apart from the rest of the order, and does not intend to refer back to the first portion

of the telegram or to limit the authority given. The words ""issue of"" strengthen me in this view for if Government intended that no action should be

taken until the complaint had been sanctioned those unnecessary words would not have been inserted in the telegram. Chidambaram Pillai v.

Emperor ILR (1908) M. 3 : 19 M.L.J. 81 is authority for the proposition that the actual words of the complaint need not be authorised by

Government. I have therefore no doubt but that the authority given by Government in Ex. A. was a perfectly valid authority. In view of the above, it

is unnecessary to deal with the two cases cited, i.e., Barindra Kumar Ghose v. Emperor ILR (1907) C. 467 and Queen Empress v. Samavier ILR

(1892) . M. 468 the former which decided a point which does not arise here and the latter a question u/s 197, Criminal Procedure Code, the

language of which is entirely different from Section 196. I would therefore dismiss this petition.

Napier, J.

I agree. I only wish to add a few words on what I conceive to be the scope of Section 196 of the Criminal Procedure Code. Mr. K. Srinivasa

Aiyangar invited our attention to the language used by the learned Judges in Barindra Kumar Ghose v. Emperor ILR (1907) C. 467 It appears to

me, that they treated Section 196 as an enabling section. With the greatest deference I entirely differ. Section 196 is not an enabling section. It is a

disenabling section. The enabling section is Section 190. Section 190 provides that a Magistrate may take cognizance of any offence (a) upon

receiving a complaint of facts which constitute such offence; (b) upon a police-report of such facts; and (c) upon information received otherwise or

from his own knowledge. Then there are Sections 195, 196 and 197 which limit the power of a Magistrate to take cognizance in this general

manner. What the code does is to provide that any person who has knowledge of an offence being committed can set the Criminal Court in

motion; but that with regard to matters dealt with in Section 196, the Criminal Court shall not be set in motion without a complaint. This provision

eliminates Clauses 2 and 3 of Section 190 and further provides that the complaint shall be either by order of, or under authority from, the

Governor-General in Council or the Local Government. Therefore in my opinion, the question whether this section should be read in the interest of

the accused or to what extent discretion is allowed or to what extent Government is to be guided by questions of policy, have with deference to the

learned Judges no bearing on the question at all. All that it requires is that whereas ordinarily anybody can give information of an offence and the

proceedings then go on in the name of the Crown against the accused person, in this particular case only the Government can set the Court in

motion. And it is, I think, in view of the generality of the language used in this section that this Court and the High Court of Bombay have given a

wide interpretation to the section. This court, in Chidambaram Pillai v. Emperor ILR (1908) M. 3 : 19 M.L.J. 81 expressly approved of the

language used in Queen Empress v. Bal Gangadar Tilak ILR (1897) B. 150 and that language seems to me to indicate the true manner in which the

construction of this section should be approached. It is as follows : "" Now as to the question of jurisdiction, we are all of opinion without doubt that

this prosecution was instituted under the authority of Government, and that to use the words of the present Code (X of 1882) this complaint was

made "" by order of or under the authority of Government."" There is no special mode laid down in the code whereby the order of sanction of

Government is to be conveyed to the officer who puts the law in motion. In this case the prosecution was conducted by the Government Solicitor,

it was instituted by the Oriental Translator to Government, and he produced the written order of Government to institute the complaint. Now,

though the complaint must undoubtedly contain the article complained of to give information to the accused of the charge against him, there is

nothing in the Code to show that the written order to make the complaint if written order is required, must specify the exact article in respect of

which the complaint is to be made. That appears to have been the view taken in Chidambaram Pillai v. Emperor ILR (1908) M. 3 : 19 M.L.J. 81

because in that case we find the language of the order is, ""The Madras Government authorises the institution of Criminal proceedings against

Chidambaram Pillai, Subramania Siva and Padmanabha Aiyangar under Sections 124 A, 153 A and 505, Indian Penal Code, in respect of

speeches delivered by them at Tuticorin and Tinnevelly, in the months of February and March 1908."" So, the only thing definite in the order is the

persons, the sections, and the dates within which the speeches were made. These two cases seem to me clearly to indicate that this section must

not be construed with the strictness of an enabling section, but as being a disenabling section must be read simply as requiring the specific authority

of Government for institution of the proceedings and nothing more.