JUDGMENT Bartley, J. - This Rule was issued on the District Magistrate of Howrah to show cause why the conviction of the Petitioners under sec. 186 of the Indian Penal Code should not be set aside. The material facts are that the Petitioners were placed on trial on the allegation that they had refused to allow an Excise Inspector to search their houses for illicit liquor and that they abused him and his Excise party until they were compelled to stop conducting the search which incidentally was sought to be made without a warrant. 2. The charge framed against the Petitioners by the trial Magistrate was to the effect that they obstructed the Inspector of Excise, a public servant in the execution of his duties as such a public servant with intent to prevent or deter him from searching a house and that they thereby committed an offence punishable under sec. 353 of the Indian Penal Code within his cognizance. 3. The initial difficulty in the case, therefore, is that although the wording of the charge set out an offence under sec. 186 of the Indian Penal Code, that offence was described as one under sec. 353 of the Code. 4. The learned Magistrate, however, convicted the Petitioners under sec. 353. On appeal, the Appellate Court found it as a fact that the evidence proved that the Appellants obstructed the Inspector in the discharge of his public function. He, therefore, altered the conviction from one under sec. 353 to one under sec. 186 of the Indian Penal Code and maintained the sentence passed by the original Court. 5. This procedure, of course, immediately raises a second difficulty because there could be no conviction under sec. 186 of the Indian Penal Code without a previous complaint in writing of the public servant concerned or some other public servant to whom he was subordinate. 6. The present proceedings were instituted on the police report and it was admitted that there was no complaint in writing by the public servant concerned or by anybody else. The learned Magistrate who heard the appeal held that this defect was cured by sec. 537 of the Code of Criminal Procedure because it cannot be said that the failure of justice has been occasioned in this case by the omission of this formal complaint. 7. The learned Magistrate who heard the appeal held that this defect was cured by sec. 537 of the Code of Criminal Procedure because it cannot be said that the failure of justice has been occasioned in this case by the omission of this formal complaint. 7. In our opinion, this view of the Court of appeal below is erroneous and cannot be supported. Sec. 537 does not cure cases of want of or irregularity in any sanction required by sec. 195. Undoubtedly, it did so before it was amended. 8. Moreover, in the present case it is clear that the Petitioners were prejudiced from the early stage in the proceedings by the manner in which the charge was framed in the Court of first instance and the ambiguity arising therefrom. In our opinion, therefore, this Rule must be made absolute. The conviction of the Petitioners and the sentences passed upon them are set aside. They will be discharged from their bail.