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1966 DIGILAW 2 (GUJ)

ALUBHAI MUJATBHAI v. STATE

1966-01-17

N.G.SHELAT

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N. G. SHELAT, J. ( 1 ) THIS Appeal arises out of an order passed on 21-9-64 by Mr. K. H. Damani City Magistrate 10 Court Ahmedabad in Criminal Case No. 178 of 1964 whereby the accused-appellant came to be convicted and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 50. 00 or in default rigorous imprisonment for 15 days for an offence under sec. 53 of the Indian Post Office Act. ( 2 ) THE charge against the appellant-accused was that on or about 3 of October 1963 while he was in service as a letter-box peon in New Civil Hospital Post Office at Ahmedabad he opened postal articles in course of transmission contrary to his duty and wilfully detained or delayed the said postal articles and thereby committed an offence punish- able under sec. 53 of the Indian Post Office Act. ( 3 ) ONE Shri Mangubhai Nanubhai Desai who was working as an Investigating Inspector in the office of the Post Master General at Ahmedabad on receipt of some information regarding the accused who was working as letter-box peon in New Civil Hospital Post Office Ahmedabad removing postal letters stamps and other articles made an inquiry in the matter. The accused on being questioned had produced about 15 envelopes and a post-card Exs. 6 to 21. 3 Thereupon he made a report and after obtaining an order from the Post Master General Ahmedabad lodged a complaint Ex. 23 to the P. S. I. Madhupura Police Station on 4-12-63. After making the necessary investigation of the case the P. S. I. sent up the charge-sheet against the accused for an offence under sec. 53 of the Indian Post Office Act to the Court of the City Magistrate 10 Court under sec. 173 of the Criminal Procedure Code. The accused denied to have committed any offence. The learned Magistrate after considering the effect of the evidence found the accused guilty and sentenced him as stated hereabove. Feeling dissatisfied with that order the accused has come in appeal. ( 4 ) THE only contention made out by Mr. Shethna the learned advocate for the appellant-accused is that having regard to sec. 72 of the Indian Post Office Act read with the definition of the term complaint under sec. Feeling dissatisfied with that order the accused has come in appeal. ( 4 ) THE only contention made out by Mr. Shethna the learned advocate for the appellant-accused is that having regard to sec. 72 of the Indian Post Office Act read with the definition of the term complaint under sec. 4 (1) (h) of the Criminal Procedure Code 1898 the Court of the learned Magistrate was not justified in law to take cognizance of an offence punishable under sec. 53 of the Indian Post Office Act against the accused and that therefore the order of conviction and sentence passed against the appellant is bad in law. ( 5 ) SEC. 72 of the Indian Post Office Act provides that no Court shall take cognizance of an offence punishable under any of the provisions of secs. 51 53 54 clauses (a) and (b) 55 56 58 59 61 64 65 66 and 67 of this Act unless upon complaint made by order of or under authority from the Director General or a Post Master General. The term complaint is defined in sec. 4 (1) (h) of the Criminal Procedure Code as meaning 4the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but it does not include the report of a police officer. Now it is clear that the complaint has not been filed direct in Court by any person authorised by the Director General or the Post Master General and that it was made to the police officer on 4-12-53 by Shri Mangubhai the Investigating Inspector in the Office of the Post Master General in pursuance of an order sectioning the same by the Post Master General Ahmedabad. While therefore the complaint was lodged with the police under the authority of the Post Master General it was not directly lodged before the Court and the question therefore is whether the term complaint used in sec. 72 of the Indian Post Office Act has to be read and understood as one contemplated by sec. 4 (1)the of the Criminal Procedure Code. Such a term complaint has not been defined in the Post Office Act. 72 of the Indian Post Office Act has to be read and understood as one contemplated by sec. 4 (1)the of the Criminal Procedure Code. Such a term complaint has not been defined in the Post Office Act. However when such a term is used in a provision such as this relating to the taking of cognizance of offence under certain provisions of the Act it has to be given a legal meaning and that can be taken as one defined in sec. 4 (1) (h) of the Criminal Procedure Code. It cannot be taken as meaning merely an information to be given to the police by an officer of the Postal Depart- ment. It restricts the competence of the Court to take cognizance of the offences mentioned therein under the Post Office Act and has therefore to be strictly complied with. Now a police report sent to the Court against the accused-appellant under sec. 173 of the Criminal Procedure Code is not a complaint within the meaning given to it under sec. 4 (1) (h) of the Criminal Procedure Code. Since no complaint is validly given by the complainant to the Court in respect of an offence under sec. 53 of the Indian Post Office Act as required under sec. 72 of the Act the Court would not be entitled to entertain it in law. Such a view has been taken by this Court in a case of Narotamdas Bhikhabhai v. State of Gujarat reported in 1965 (2) Cri. L. J. 165. ( 6 ) IN absence of a valid complaint before the Court therefore the cognizance of the offence taken by the Court contravened the provisions contained in sec. 72 of the Indian Post Office Act and therefore the order of conviction and sentence passed by the learned Magistrate shall be set aside. It may however be open to talk suitable and proper action in accordance with law by complying with the provisions contained in sec. 72 of the Indian Post Office Act. ( 7 ) THE appeal is allowed and the order of conviction and sentence passed against the appellant-accused under sec. 53 of the Indian Post Office Act is set aside. The accused is acquitted Fine if paid is directed to be refunded. The bail bond of the accused shall stand cancelled. Appeal allowed. .