ORDER
Kamla Sahai, J.
1. This application is directed against an order, dated the 30th July, 1963, passed by the District Magistrate of Darbhanga.
2. The relevant facts may be shortly stated. A proceeding under Section 144 of the Code of Criminal Procedure was drawn up, prohibiting the parties from going upon the disputed land. Opposite party No. 2 made an application for filing a complaint against, the petitioners on the allegation that, in spite of service of notice under Section 144, the petitioners had infringed the order by going upon the land and harvesting the crops, and had thereby committed an offence tinder Section 188 of the Penal Code. The Block Development Officer made an inquiry and report. On a perusal of the inquiring officer’s report, Mr. M.S. Srivastava, the second officer, dropped the proceeding. This means that he refused to file a complaint against the petitioners. Thereafter, opposite party No. 2 filed a criminal revision before the District Magistrate. By the impugned order, the District Magistrate set aside the second officer’s order, and directed the Sub-divisional Magistrate to file a complaint for an offence under Section 188 against the petitioners.
3. The first point raised by Mr. Padmanand Jha, who appears on behalf of the petitioners, is that the District Magistrate had no jurisdiction to set aside the second officer’s order. The second point which he has urged is that, in any case, the District Magistrate could not direct the Sub-divisional Magistrate to file a complaint, and that, if he was of opinion that a complaint should be filed, he should have filed it himself.
4. For a proper consideration of the first point, it is necessary to read Clause (a) of Section 195(1) of the Code of Criminal Procedure (hereinafter to be referred to as the Act) and Sub-section (5) of Section 195:
“195. (1) No Court shall take cognizance –
(a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;”
“195. (5) Where a complaint has been made under Sub-section (1), Clause (a), by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court, and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.”
It seems manifest, on a perusal of the above pro-visions, that, in cases falling under Section 195(1)(a), either the public servant concerned or a public servant to whom he is subordinate can file a complaint. If neither files a complaint, the question of an application to a higher authority does not arise. If, however, either the public servant concerned or the public servant to whom he is sub-ordinate files a complaint, the aggrieved person may file an application under Sub-section (5) before an authority to which the public servant, who has filed the complaint, is subordinate. That authority is competent to order the withdrawal of the complaint. It cannot reasonably be held that, when once the public servant concerned has refused to file a complaint, the public servant to whom he is subordinate cannot file a complaint.
5. In the instant case, the second officer or the Sub-divisional Magistrate is the public servant concerned. Under Section 12 of the Code, the State Government may, besides the District Magistrate, appoint Magistrates of the first, second or third class in any district. Under Section 13(1), the State Government may place any Magistrate of the first or second class in charge of a sub-division. Under Sub-section (3) of that section, the State Government may delegate its powers under the section to the District Magistrate. Section 17(1) provides that, besides others, Magistrates appointed under Sections 12 and 13 shall be subordinate to the District Magistrate. It is, therefore, clear that the Sub-divisional Magistrate and the second officer are public servants subordinate to the District Magistrate. Acting under Section 195 (1) (a), therefore, the District Magistrate can file a complaint for an offence under Sections 172 to 188 of the Penal Code if the public servant concerned is one of the Sub-divisional Magistrates or Magistrates under him. In such a case, he does not exercise power under Sub-section (5) of Section 195 He can only exercise power under that sub-section if any Magistrate subordinate to him files a complaint.
Mr. Jha has relied upon several decisions in support of his argument that the District Magistrate has no jurisdiction to pass any order in respect of a matter in which a Magistrate under him has refused to file a complaint. The first case which he has referred to is the decision of the Supreme Court in Virindar Kumar Satyawadi v. State of Punjab, AIR 1956 SC 153. In that case, the Returning Officer of an election filed a complaint for offences under Sections 181, 182 and 193 of the Penal Code it was argued before their Lordships that no appeal under Section 476B lay to the Sessions Judge relating to the complaint filed by the Returning Officer. Mr. Jha has drawn my particular attention to what Venkatarama Ayyar, J. has said at page 156 of the report while dealing with this argument. It is as follows
“The result then is that if the complaint relates to offences mentioned in Sections 195(1)(b) and 195(1)(c), an appeal would be competent, but not if it relates to offences mentioned in Section 195(1)(a).”
It seems clear that, when his Lordship observed that no appeal lay if the complaint related to offences mentioned in Section 195(1)(a), he meant that no appeal under Section 476B lay. Thus, this decision does not help Mr. Jha
6. Reference has been made also to Maruda Pillai v. Narayanaswami Pillai, AIR 1939 Mad 336. That is a very short judgment, saying that the view of the District Magistrate that no appeal lies against the refusal of a public servant to file a complaint under Section 188 of the Penal Code is correct. This cannot possibly be disputed. An appeal or application under Sub-section (5) of Section 195 lies only against the filing of a complaint and not against an order refusing to file a complaint. The question whether a public servant to whom the public servant concerned is subordinate can or cannot file a complaint under Section 195(1)(a) has not been considered in that case.
7. The third decision which Mr. Jha has referred to is that of Madhu Sudhan Chatterjee v. Haridas Gope, 44 Cal WN 1011. In that case, their Lordships have not considered or decided whether a superior public servant can lodge a com-plaint under Section 195(1)(a) in respect of an offence when me public servant concerned is his subordinate.
8. The last case relied upon by Mr. Jha is that of Bachuram Kar v. State, AIR 1956 Cal 102. The points for decision in that case were quite different from those in the present case. An argument was, however, advanced that, if the expression ‘public servant’ in Section 195(1)(a) is taken to be the public servant personally and not by office, difficulty would be created when the public servant concerned was transferred or was not available by reason of death or resignation. While refuting this argument, Debabrata Mukerjee, J. has stated that, in such a case, the complaint can be filed by the public servant to whom the public servant concerned is subordinate. I do not see how this decision can be taken to be an authority for the proposition that the District Magistrate, in the present case could not file a complaint.
9. Mr. Lala Kailash Behari Prasad, who has appeared on behalf of the State, has referred me to the decision in The State v. Sudhir Ruhidas, AIR 1959 Cal 450, Guha Ray J. has held in that case that, when a Magistrate appointed under Section 12, 13 or 14 of the Code refuses to file a complaint, the District Magistrate, to whom he is subordinate is competent to file a complaint. This decision supports the view which I have expressed.
10. It is abundantly clear from what I have said above that the District Magistrate could interfere in the present case, and, if he came to the conclusion, on proper consideration, that a complaint should be filed for an offence under Section 188 of the Penal Code against the petitioners, he undoubtedly had jurisdiction to file such a complaint.
11. Coming now to the second point, I agree with Mr. Jha that it was not open to the District Magistrate to direct the Sub-divisional Magistrate to file a complaint. It was only open to him to file a complaint under Section 195(1)(a) himself, if he thought that it was necessary in the ends of justice to file it. To this extent therefore, his order is illegal.
12. I allow the application, set aside the order
of the District Magistrate dated the 30th July,
1963, and remand the case to him. He will give
an opportunity to the parties to be heard, and,
after taking all necessary materials and arguments,
if any, into consideration, he will pass necessary
Orders in accordance with law and in the light of
the observations which I have made above.