DADHIRAM SHARMA Vs. TIKARAM BHANDARI

JUDGEMENT

(1.) THE prosecution giving rise to this appeal by the accused was launched under Section 193, IPC, but has resulted in a conviction under Section 500, I. P. C. Having heard Mr. J. C. Ghosh, learned Counsel for the appellant, the learned Advocate -General appearing for the State and Mr. T. K. Pandit, learned Counsel for the complainant -respondent, I have no doubt that the judgment impugned cannot be sustained and that the appeal must be allowed on a point of law, the point being that there was no complaint in respect of the offence under Section 500, I. P. C. for which the accused has been charged and convicted.

(2.) THIS ground, however, was not taken in the petition of appeal. But, where it is alleged that an illegality is so grave as to vitiate the whole trial, such a ground, though not taken specifically in the petition of appeal, must be allowed to be urged at the hearing in a criminal appeal. In this respect there is an apparent distinction between an appeal under the Civil P. C., 1908 and an appeal under the Criminal Procedure Code, 1898 and while the Civil P. C. has, in Order 12, Rule 1, insisted that the memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection and has provided in Rule 2 that no other ground can be urged except by leave of the Court, the Criminal Procedure Code, in Section 419, merely provides for a criminal appeal to be made in the form of a petition without requiring expressly that the grounds of appeal are also to be stated therein. It is, no doubt, true that the Supreme Court in Kapil Deo v. State of Uttar Pradesh (AIR 1958 S. C. 121) has observed (at p. 123) that in a criminal appeal also, the "memo of appeal is meant to be a succinct statement of grounds upon which the appellant proposes to support the appeal" and has disapproved the "prevailing practice ...... according to which no specific grounds are taken either on fact or on law" in a petition of criminal appeal. Following, therefore, as one must, the observations of the Supreme Court noted above, it is to be held that grounds of appeal are to be stated in a petition of criminal appeal also. But these observations do not go so far as to say that if there is an illegality or error rendering the proceeding without jurisdiction or otherwise vitiating the whole trial, such a ground cannot be allowed to be taken at the hearing of the appeal simply because the accused or his lawyer, inadvertently or otherwise, failed to take such a ground in the petition of appeal. I am, therefore, of opinion that I must allow Mr. Ghosh to urge this ground, which if substantiated, would demonstrate the entire trial to be without jurisdiction and the trial Court to be almost coram non judice. I must also point out that the learned Advocate -General and the learned Counsel appearing for the complainant-respondent have not also objected to this ground being urged at the time of hearing on the ground of its not having been taken in the petition of appeal.

(3.) MR . Ghosh has elaborated his point in the following manner. The accused has been charged and convicted for committing defamation by using certain defamatory words in respect of the complainant on 30.1.1977. But the complaint itself, labelled under Section 193, Indian Penal Code, was filed on 28 -2 -75. The mere wrong label of a Section under which a complaint is purported to have been filed is not material and a complaint if it discloses an offence under any law, can surely be proceeded with even though a wrong Section or provision of law has been quoted as its label. But it is too obvious to require any argument that a complaint, filed on 28 -2 -75 cannot disclose any facts or allegation relating to any offence alleged to have been committed on 30 -1 -77. The case, so far it relates to the offence of defamation, must, therefore, be regarded to have proceeded without any complaint. It is, no doubt, true that a complaint is not the only material which alone can generate a criminal prosecution and, as is well -known, a criminal proceeding can be initiated under clauses (b) and (c) of Section 190 of the Criminal Procedure Code otherwise than on a complaint. But for a prosecution for an offence of defamation under chapter XXI of the I. P. C. a complaint made by some person aggrieved is a sine qua non under the mandatory provisions of Section 198 of of the Criminal Procedure Code, 1898. A bare perusal of Section 198 demonstrates this position with irresistible clarity requiring no citation for its authority. But I would still like to refer to the decisions of the Supreme Court in Abdul Rehman v. Mohomed Haji Ahmad (AIR 1960 SC 82) where it has been pointed out (at p. 85) that the provisions of Section 198, Criminal Procedure Code are mandatory and that there can be no "conviction for an offence referred to in Section 198 or Section 199 where no complaint has been made as required by these Sections". Reference may also be made to the decision of the Supreme Court in H. N. Rishbud v. State of Delhi (AIR 1955 SC 196) where (at p. 204), it has been observed that Section 193 and Sections 195 to 199 "regulate the competence of the Court and bars its jurisdiction in certain cases excepting in compliance therewith". The present case must, therefore, be held to be bad and without jurisdiction in the absence of a complaint to sustain it.