L.H. Jenkins, C.J.

1. In a conspiracy case the accused can be charged withconspiring with persons unknown, but if they are charged with the conspiringwith persons known then such persons must be named in the charged. Mr. F.N. Royobjected to the amended charged as taking the defence by surprise at thisstage, and as calculated most seriously to embarrass it.

2. Surely Mr. Roy you cannot be serious; you cannotseriously intend to add so many names on the charge at this stage.

3. Mr. P.L. Roy, on further consideration, had the chargere-amended which was then put in with 8 fresh names added, being those of thepersons who were described in the charge as known.

4. At the conclusion of the evidence of the complainant Mr.Murray, Mr. J. N. Roy drew the attention of the Court to the fact that the nameof the accused Haripado Adhikari did not appear in the petition of complaint,and submitted that he was not therefore properly before the Tribunal in thistrial, and should be discharged from it.

5. Mr. P.L. Roy.-The name of Haripado appears in thesanction, and that is sufficient for the purpose.

6. Mr. J. N. Roy.- I submit a person cannot be on his trialexcept upon a complaint; where there is no complaint there is no jurisdiction,and consequently in the present case your Lordships have no jurisdiction, norhad the committing Magistrate, over this man Haripado.

7. Jenkins, C.J.- That seems to be a perfectly soundcontention. Sec. 196 of the Criminal Procedure Code confers no jurisdictionupon the Court to try a person in cases falling within its purview except upona complaint made with the previous sanction of the Local Government. Here wehave the sanction, but not the complaint, as far as the accused Haripado isconcerned. And a defect in procedure laid down by sec. 196 cannot be remediedat all]

8. Mr. P. L. Roy.-I submit there was a complaint againstHaripado inasmuch as there was an application for issue of process against him.A complaint need not be in writing, it might be oral. Mr. Murray, thecomplainant in this case, when examined before the Magistrate stated that heasked for process against those who were mentioned in the sanction.

9. Mr. J. N. Roy.- Mr. Murray was asking for process onlyagainst the persons actually named in the complaint, and against whomGovernment had granted sanction. Since this mans name does not appear in thecomplaint the mere fact of its inclusion in the sanction would confer nojurisdiction on the Court to try him, the condition precedent to every trialbeing a complaint.

10. Jenkins, C. J.-That is so. It has been held that aletter by Government sanctioning a prosecution may be an authority to institutea prosecution, but the letter itself is not a complaint. Sanction is differentfrom complaint.

11. Mr. P. L. Roy.-Your Lordships would see that process wasasked for against Haripado as one of the men named in the sanction, and thatapplication for issue of process under the circumstance constituted acomplaint.

12. Jenkins, C.J.-What is a complaint Look at sec. 4, cl.(h). Where is the allegation in the present case made orally or in writing tothe Magistrate with a view to his taking action An application for issue ofprocess must be preceded by a complaint, otherwise no such application could beheard. An application for issue of process does not fall within the definitionof complaint.

13. Mr. J.N. Roy.- I ask your Lordships to direct that theaccused Haripado do stand down from the dock. I have no right to ask for more.Jenkins, C. J.-Let him stand down. We do not say he is acquitted, but as far asthe present trial is concerned we say he is discharged, and we have nojurisdiction over him.]

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Emperor vs. Lalit Mohan Chakravarty and Ors. (01.12.1910 -CALHC)