Judgment :- 1. The 4th respondent filed Ext. P1 complaint on 27-10-78 before the 3rd respondent, accusing pw. 3 of theft of a cycle. pw. 3 is the driver of one Ramaswamy. A crime was registered on this complaint. After investigation pw. 5 referred the case as false. Thereupon be filed a charge against the 4th respondent under S.182, IPC. before the 2nd respondent on the allegation that Ext. P1 contained false statements. That case was tried as S. T. No. 1582 of 1979 in the Court of the Additional Judicial 1st Class Magistrate, Quilon, the 2nd respondent. The petitioner, who is the brother of Ramaswamy, was examined as dw.1, apparently, according to him, to discredit him and to get several answers in chief-examination and cross-examination to be used against him by his brother, who is on inimical terms with him. The trial court on an appreciation of the evidence convicted the accused in that case and sentenced him to undergo imprisonment till the rising of the court and to a fine of Rs. 250/- and in default to undergo imprisonment for one month by judgment dated 24-9-1980. In the judgment occur the following observations in Para.8: "That may be the reason why the defence took up the plea that Ext. P1 statement had its illegitimate origin in the brain of dw.1. The defence also took up the defence that after the filing of Ext. P1 dw.1 was hunting after fabricated evidence to prove title and possession of such a cycle with him." The petitioner has filed this application under S.482, Cr. P.C. to get these observations expunged on the ground that they are not borne out by the evidence in the case, not necessary for the disposal of the case and do not form an integral part of the judgment. 2. The learned counsel for the petitioner took me through the evidence in the case and also the statement of the accused under S.313, Cr P.C. to satisfy me that the observations Wire not on the basis of either the evidence or the statement of the accused. 3. 2. The learned counsel for the petitioner took me through the evidence in the case and also the statement of the accused under S.313, Cr P.C. to satisfy me that the observations Wire not on the basis of either the evidence or the statement of the accused. 3. On a consideration of the materials placed before me I am satisfied that the first observation marked 'A' is not justified on the evidence or any other material in the case and should not have found a place in the judgment, especially because the evidence disclosed bitter animosity between two brothers and an attempt by one to discredit the other by all means possible. I, therefore, direct expunction of the observations marked 'A' in the petition on the ground that it is not necessary for the disposal of the case. 4. The same cannot be said about the observation marked 'B'. The objectional part, according to the petitioner's learned counsel, reads thus: "However considering the status of the accused in social life and the influence exercised on him by his master I am of the view that a deterrent sentence is not called for." It may not be correct to say that the Magistrate could not have formed this impression on the cumulative effect of the materials placed before him. The said observation does not cast any reflection on the petitioner either. Therefore I decline the request to expunge the observation 'B' in the petition. 5. What is stated above is sufficient to dispose of this petition. But the learned counsel for the petitioner invited my attention to a fatal illegality in the case and requested that the entire proceedings and the judgment should be quashed for this illegality. The offence involved in the case is one under S.182, IPC. The complaint Ext. PI was filed before pw. 5. The learned Magistrate took cognizance of the case on Ext. P2 FIR. submitted by pw. 1. Under S.2 (d) of the Criminal Procedure Code a police report is not a complaint. The question that falls for decision is whether the cognizance by the Magistrate of the case disclosing an offence under S.182, IPC. on Ext. P2 report is proper. S.195 (1) (a) (i), Cr. P. C. reads: "195 (1). P2 FIR. submitted by pw. 1. Under S.2 (d) of the Criminal Procedure Code a police report is not a complaint. The question that falls for decision is whether the cognizance by the Magistrate of the case disclosing an offence under S.182, IPC. on Ext. P2 report is proper. S.195 (1) (a) (i), Cr. P. C. reads: "195 (1). No court shall take cognizance (a) (i) of any offence punishable under S.172 to 188 (both inclusive) of the Indian Penal Code, xx x x except on the complaint in writing of the public servant concerned or of some other public servant to whom be is administratively subordinate." It is clear that in this case the Magistrate was approached not by pw. 5 to whom Ext. PI complaint was filed. He is the public servant concerned in the language of the section quoted above. The section contains a mandate to the court not to take cognizance of any offence under S.172 to 188 except when the complaint in writing is made by the public servant concerned This statutory mandate not having been complied with, the learned counsel for the petitioner submits that the entire prosecution is vitiated. In support of this submission he relied upon a decision reported in Daulat Ram v. State of Punjab, AIR. 1962 SC. 1206. In that case the appellant wrote a letter to the Tahsildar, complaining that two persons beat him and robbed him of his papers and money. The Tahsildar forwarded this letter to the Sub-Divisional Officer, who in his turn sent it on to the police The police enquired into the facts and reported that the allegations were false. Meanwhile, the appellant entered into some sort of compromise and wanted the proceedings to be dropped. The matter was, however, pursued and when the report of the police came that the allegations were false, the Tahsildar asked the police to drop the case. The police, however, launched a prosecution under S.182 of the Indian Penal Code and after due trial the accused was found guilty of the offence and was sentenced to three months' rigorous imprisonment His appeal and revision failed and thereafter the matter came before the Supreme Court. 6. The question that fell for decision before the Supreme Court was whether the complaint in writing as required by S.195 had been presented by the public servant concerned. 6. The question that fell for decision before the Supreme Court was whether the complaint in writing as required by S.195 had been presented by the public servant concerned. The public servant who was moved by the appellant was undoubtedly the Tahsildar. Proceedings were initiated on a police report. The Supreme Court held that the Tahsildar was the public servant in that case and since he had not filed the complaint in writing the requirements of S 195 were not satisfied. The Supreme Court observed: "The words 'no court shall take cognizance' have been interpreted on more than one occasion and they show that there is an absolute bar against the Court taking seisin of the case except in the manner provided by the section." An attempt was made in that case to support the action of the prosecution by submitting that S.195, Cr.P.C. had been complied with, since the letter of the Superintendent of Police was forwarded to the Tahsildar and this paper was laid with the charge-sheet. The Supreme Court rejected this contention and observed as follows: "In our opinion, this is not a due compliance with the provisions of that section. What the section contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tahasildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained." The Supreme Court has left no room to doubt that the trial was without jurisdiction ab initio. The learned counsel for the petitioner is well-founded in his submission. I thought it necessary to refer to this aspect of the case for two reasons, (i) since the trial was without jurisdiction ab initio, what is contained in the judgment will not and cannot be used by any person against the petitioner and (ii) to afford sufficient guidelines for the subordinate courts in dealing with complaints coming under S.195, Cr P. C. 7. The criminal miscellaneous petition is disposed of as above.