K.K. PATEL AND ANR.versusSTATE OF GUJARAT AND ANR.

A                          K.K. PATEL AND ANR.
                                    v.
                        STATE OF GUJARAT AND ANR.

                                   MAY 12, 2000

B                 [K.T. THOMAS AND D.P. MOHAPATRA, JJ.]


          Criminal Law :

          Criminal Procedure Code, 1973:
c         Section 399-Sessions Court-Revision before Additional point Raising
    of issue ofprocess-Challenge of-A point regarding non-filing of complaint
    within the prescribed period under S 161(1) of the Bombay Police Act was
    raised in revision-Such a point not raised before the trial court-
    Permissibility of-Held: it is permissible to raise such a point as the very
D   issuance of process is being challenged

          Section 407-High Court-Revision before-Scope of-Additional
    ground was considered and decided on merits by the Sessions Court·High
    Court, in revision, refused to go into that aspect since it was not raised
    before the trial court-Correctness of-Held : High Court erred in refusing
E   to do so.

         Section 397(2)-lnterlocutory order-Revision against-Exercising of
  -Tests to determine Magistrate took cognizance of complaint and issued
  process-Objection that complaint was barred by limitation under S.161{!)
   of the Bombay Police Act was taken in revision-Enertaining of-Held, the
F sole test is not whether the order is passed during the interim stage-The
  feasible test is whether the proceedings would culminate if the objection were
   upheld-If so any order passed on such objection does not amount to
  interlocutory order-Jn the circumstances of the case if the objection were
   upheld the entire prosecution proceedings would have terminated-Hence
G the Magistrate's order is not interlocutory and therefore revisable. Bombay
  Police Act, 1961, Section 161(1).

           "Colour of duty"-Acts done under-Meaning of-Complaint filed for
    commission of offences under S 166, 167, 219 !PC etc.-Objection was taken
    that it was filed beyond the prescribed period under S. 161 (I )-Sustainability
H   of-Held: The words' under colour of duty' include acts done under the cloak
                                         312
                    K.K. PATEL v. STATE OF GUJARAT                          313
of duty-Ingredient of offence under S.161 !PC includes act done as a public        A
servant Hence, such objection sustainable.

      Penal Code, 1860:

      Section 166 Ingredients of-Explained

      Words and Phrases:                                                           B
      "Under colour of duty" and "aforesaid"-Meaning of-In the context
of S.166(1) of the Bombay Police Act, 1951.

      One I lodged a complaint before the Magistrate alleging that his brother
was kidnapped by some person named in the complaint. Acting on this                C
complaint the appellants arrested the respondent-police officer but the alleged
kidnapped person appeared before all the people concerned. The respondent-
police officer was later released on bail. After investigation the police
submitted "final report." The Court after hearing the respondent-police
officer also in the matter held that the complaint was false.
                                                                                   D
      Thereafter, the respondent-police officer filed a complaint before the
Metropolitan Magistrate against the appellants for committing offences under
Sections 166, 167, 176, 201, 219, 220, 312, 417 of the Penal code, 1860 read
with Sections 120-B, 34 and 109 of the same Code. The offence under section
147(G) of the Bombay Police Act, 1951 was also included. The Metropolitan          E
Magistrate took cognizance of the offences and issued process to the appellants.

      Thereupon, the appellants filed a revision before the Sessions Court in
which they raised one additional point that the complaint was filed beyond the
period prescribed under Section 161 (1) of the Act This point was not raised
before the trial court The Sessions court allowed the revision and dismissed       F
the complaint

      However, the High Court allowed the revision filed by the respondent-
police officer on the ground that the Sessions Court should not have interfered
with the interlocutory order passed by the Metropolitan Magistrate in view of
the provisions contained in Section 397(2) of the Criminal Procedure Code,         G
1973.

      Allowing the appeal, this Court

     HELD : 1. Merely because the appellants did not raise the legal points
based on Section 161 of the Bombay Police Act, 1951 before the Metropolitan
Magistrate they are not estopped from canvassing on that additional ground         H
    314                       SUPREME COURT REPORTS [2000] SUPP. l S.C.R.

A also before the Sessions Court in revision as they were challenging therein
    the very issuance of process against them. The position may be different if
    the Sessions Judge had avoided dealing with the contention based on Section
    161(1) of the said Act on the premise that it could be raised before the trial
    court. But when the Sessions Judge had opted to go into that question and
B   rendered a decision on it on merits it is difficult to concur with the reasoning
    of the High Court that the said aspect would not be gone into by the High
    Court as the same was not raised before the trial court. (319-8-C)

          2. In deciding whether an order challenged is interlocutory or not as
    for Section 397(2) of the Criminal Procedure Code, 1973 the sole test is not
C   whether such order was passed during the interim stage. The feasible test is
    whether by upholding the objections raised by a party, would it result in
    culminating the proceedings? If so any order passed on such objections would
    not be merely interlocutory in nature as envisaged in Section 397(2) of the
    Code. In the present case, if the objection raised by the appellants were upheld
    by the court the entire prosecution proceedings would have been terminated.
D                                                                         (319-D-Fl

         Amar Nath v. State ofHaryana, [197714 SCC 137, Madh11 Limaye v. State
    ofMaharashtra, [1977) 4 SCC 551; V. C. Shukla v. State, (1980)2 SCR 380 and
    Rajendra Kumar Sitaram Pandey v. Uttam, [1999) 3 SCC 134, relied on.

E          3. Section 161(1) of the Act widens the scope of the provision a little
    further by bringing within its sweep those offences committed through any
    acts done which are "of the character aforesaid." The expression "aforesaid"
    in the sub--5ection is evidently with reference to what is mentioned in Sections
    159 and 160 of the same enactment. Those provisions afford an absolute
    immunity to a public servant from any penalty or liability to pay damages in
F   respect ofany ~ll~ ~one in good faith" in pursuance ofor intended pursuance
    of."1111y duty imposed or any authority conferred on him by any provision of
    this Act or any other law for the time being in force or any rule, order or
    direction made or given thereunder." Such absolute immunity is not afforded
    in respect of any offence or wrong alleged to have been done by such public!
G   servant, if it were done "under colour or in excess of any such duty or authority
    as aforesaid." (320-F-Hl

          4.1 The words "under colour of duty" have been used in Section 161(1)
    to include acts done under the cloak of duty, even though not by virtue of the
    duty. When he (the police officer) prepares a false Panchnama or a false report
H   he is clearly using the existence of his legal duty as a cloak for his corrupt
                    K.K. PATEL v. STATE OF GUJARAT                           315
action or 'as a veil to his falsehood.' The acts thus done in derelicition of his   A
duty must be held to have been done "under colour of duty." (321-D-EJ

      Virupaxappa Veerappa Kadampur v. State of Mysore, AIR (1963) SC
849, relied on.

      4.2 In this Case, there is no scope for contending that the offence alleged   B
would not fall within the purview of "acts done under the colour or in excess
of duty or authority" of such police officer. Even the very reading of the
ingredients for the offences alleged would show that such offence could not
be committed without being in the cloak of a public servant nor could they be
committed unless the public servant was at least under the colour of his office.    C
                                                                       (321-F-GJ

      4.3. The indispensable ingredient of the offence under Section 166 of
the Penal Code, 1860 is that the offender should have done the act "being a
public servant." The next ingredient close to its level is that such public
servant has acted in disobedience of any legal direction concerning the way         D
in which he should have conducted as such public servant. For the offence
under Sections 167 and 219 IPC the pivotal ingredient is the same as for the
offence under Section 166 of IPC. The remaining offences alleged in the
complaint in the light of the averments made therein are parts of the same
transaction. They could not have been committed without there being at least
the colour of the office or authority, which the appellants held. [322-8-CJ         E

    State ofMaharasthra v. Narhar Rao, AIR (1966) SC 1783 and State of
Maharashtra v. Ram, AIR (1966) SC 1786, relied on.

       4.4 In the present case, it is the admitted fact that the complaint was      F
filed only long after the period indicated in Section 161 of the Act was over,
either with or without sanction from the state Government. Therefore, the
complaint is irretrieyably barred under the said provision. [323-CJ

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                           G
485 of 2000.

       From the Judgment and Order dated 27.8.99 of the Gujarat High Court
in Cr!. R.A. No. 514 of 1997.

      S.K. Dholakia, K.G. Shah, S.V. Raju Bhargava V. Desai, Siddhartha             H
      316                     SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

 A    Choudhury, Parimal M. Desai, Ms.Hemantika Wahi, Ms. Anu Sawhney Ms.
      Savita Singh, H.A. Raichura and Ms. S.H. Raichura for the appearing parties.

            The Judgment of the Court was delivered by

            THOMAS, J. Leave granted.This case is policeman versus policeman.
 B For six years now the case is still drifting in the first phase itself, as its very
     right of entry into the criminal court is under challenge. The Sessions Court
     in revisional proceedings upheld the objections raised by the accused that
     prosecution is not maintainable but the High Court in a second revision held
     that sessions court had transgressed the jurisdiction as no revisional powers
     could have been exercised by the Sessions Judge at that stage. It is the said
 C   decision of the Division Bench of the High Court of Gujarat which is being
     challenged in this appeal.

            A Deputy Superintendent of Police (for convenience he can be referred
     to hereinafter as "the respondent-police officer") filed a complaint before the
D    Metropolitan Magistrate, Ahmedabad, against two other police officers one
     of whom was a Superintendent of Police and the other was a Deputy
     Superintendent of Police. (They will hereinafter be referred to as "the
     appellants".) The offences alleged against the appellants in the complaint are
     those under Sections 166, 167, 176, 201, 219, 220, 342, 417 of the Indian Penal
     Code (IPC for short) read with Sections I 20B, 34 and 109 of the same Code.
E    The offence under Section 147(G) of the Bombay Police Act is also included
     in the complaint.

           A brief account of the events which preceded the filing of the said
     complaint is necessary. On 24.8.1992, one Jaffer Khan lodged a complaint with
     the magistrate alleging that his brother (Jahangir Khan) was kidnapped by
.F   some persons named in the complaint. The magistrate forwarded the said
     complaint to the police for action under Section 156(3) of the Code of Criminal
     Procedure (hereinafter referred to as "the Code") and then FIR was registered
     on its basis. The respondent-police officer was arrested by the appellants on
     28.8.1992, but the alleged kidnapped person (Jahangir Khan) appeared before
G    all people concerned. Respondent-police officer was later released on bail.
     After investigation the police submitted "final report" on 3.3.1994 holding that
     the accused are untraceable and requested the court to grant "A" Summary
     (which means that the complaint could not be substantiated due to want of
     proof). But the court after hearing the respondent-police officer also in the
     matter, passed an order granting "B" Summary, (which means that the complaint
H    was found false). It was in the above background that the respondent-police
            K.K. PATEL v. STATE OF GUJARAT [THOMAS, J.]                     317
                                        ,)J',..·
officer filed the present complaint on 25.7.1994.                                  A
      The present complaint runs into more than 70 typed pages and has been
prepared in a flummoxed fashion. It is very clumsily prepared. It was difficult
even for the learned counsel appearing for the respondent-police officer to
decipher the lengthy sentences as well as circumlocuted paragraphs.
Nonetheless he found out the core allegations in the complaint which is            B
extracted below:

        "The conspiraci has been made by making false complaint and I have
        illegally been arrested in which accused No. I and 2 have helped since
        they were in crime branch since long period and having relation with
        Muslim politicians/leaders/anti social elements and having good            C
        relations with them and to get their help in continuing in the crime
        branch and in view of their other weaknesses and under political
        pressure to please the Muslim leaders and in doirig so, getting benefit
        inter se, have played main role in arresting us and in making ex parte
        inquiry against me which would become clear from perusal of all the        D
        aforesaid facts and the grounds. Investigating Officer cannot make
        such illegal ex parte inquiry under political or other pressure or for
        any other cause for illegally arresting by misusing the power under
        the pretext of law and though the complaint was going to be proved
        wrong, ultimately, instead of "B" Summary, "A" Summary has been
        prayed for and for preventing repetition of such things in future, the     E
        accused should be severely dealt with to set example in the interest
        of justice and I am filing this complaint only for the sake of justice
        and therefore, it is prayed that the accused be strictly and severally
        dealt with. Otherwise, when a Class I Police Officer has been dealt
        with in this fashion and has been arrested in this manner, there would     F
        be nothing like safety of any common subject or citizen."

       The Metropolitan Magistrate after taking the sworn statement of the
respondent-police officer took cognizance of the aforesaid offences and issued
process to the appellants. On appearance before the Metropolitan Magistrate
appellants filed a petition for discharging them on the premise that no sanction   G
was obtained to prosecute them. The Metropolitan Magistrate dismissed the
said petition on 17 .5 .1997 with a rider that "appropriate decision regarding
prior sanction shall be taken on merits after considering the evidence that may
be produced by the parties". (The Metropolitan Magistrate of Ahmedabad
has written one of the lengthiest and tautologous orders running into 114
closely typed pages just for reaching the above conclusion. We are unable          H
    318                       SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A to appreciate how the heavily boarded courts like the Metropolitan Magistrate's
    court or a city court could afford writing such fritteringly lengthy orders just
    for concluding that the questions raised can be considered at a later stage).

             Appellants filed a revision before the Sessions Court and in the revision
      the appellants raised one more additional point based on Section 161 (I) of the
B Bombay Police Act which was made applicable to the State of Gujarat. As per
      that section no complaint could be filed after one year of the date of the act
      complained of in respect of offences falling within the purview of that sub-
      section. By a well considered order learned Additional Sessions Judge of
      Ahmedabad (V.N. Yagnik) upheld the objections on both counts, one based
..., Section 197 of the Code and the other on Section 161 (I) of the Bombay
 ..., on
      Police Act. Consequently the process issued by the trial court was quashed
      and the complaint itself stood dismissed.

           Learned Single Judge of the High Court of Gujarat in the revision moved
    by the respondent-police officer set aside the judgment of the Additional
D   Sessions Judge mainly on the ground that Sessions Court should not have
    entertained the revision at all as 'the order challenged before it was only
    interlocutory. What the learned Single Judge has stated on that point is the
    following:

            "The order dated 17th May 1997, made by the learned Magistrate did
E           not conclude the issue raised before him and, therefore, was
            necessarily an interlocutory order. In view of the provisions contained
            in Section 397(2) CRPC a revision against the said order would not be
            maintainable. In my view, therefore, the Revision Application No.198/
            97 preferred before the learned Additional Sessions Judge was not
            maintainable. The learned Additional Sessions Judge has thus
F
            transgressed her jurisdiction in entertaining and allowing the said
            Revision Application."

           However, learned Single Judge opined that the Metropolitan Magistrate
    was right in holding that further evidence is required to decide the question
G   relating to Section 197 of the Code, regarding the objections pertaining to
    Section 161(1) of the Bombay Police Act. The learned Single Judge made
    following observations:

           "The question of limitation under Section 161 of the Bombay Police
           Act was never raised before the learned Magistrate. It was, therefore,
H          not open to the accused to raise the said contention before the
            K.K. PATEL v. STATE OF GUJARAT [THOMAS, J.]                   319
        learned Additional Sessions Judge and the learned Additional Sessions     A
        Judge in entertaining and deciding the said issue has clearly
        transgressed her jurisdiction."

      Merely because the appellants did not raise the legal points based on
Section 161 of the Bombay Police Act before the Metropolitan Magistrate
they are not estopped from canvassing on that additional grounds also before      B
the Sessions Court in revision as they were challenging therein the very
issuance of process against them. The position may be different if the Sessions
Judge had avoided dealing with the contention based on Section 161 (I} of
the said Act on the premise that it could be raised before the trial court But
when the Sessions Judge had opted to go into that question and rendered           C
a decision on it on merits it is difficult to concur with the reasoning of the
High Court that the said aspect would not be gone into by the High Court
as the same was not raised before the trial court.

       That apart, the view of the learned Single Judge of the High Court that
no revision was maintainable on account of the bar contained in Section           D
397(2) of the Code, is clearly erroneous. It is now well neigh settled that in
deciding whether an order challenged is interlocutory or not as for Section
397(2) of the Code, the sole test is not whether such order was passed during
the interim s!:age. (vide Amar Nath v. State of Haryana, [1977] 4 SCC 137;
Madhu Limaye v. State of Maharashtra, [1977] 4 SCC 551; V.C. Shukla v.
State through C[JI, [1980] 2 SCR 380 and Rajendra Kumar Sitaram Pande v.          E
Uttam [1999] 3 SCC 134). The feasible test is whether by upholding the
objections raised by a party, would it result in culminating the proceedings,
if so any order passed on such objections would not be merely interlocutory
in nature as envisaged in Section 397(2) of the Code. In the present case, if
the objection raised by the appellants were upheld by the court the entire        F
prosecution proceedings would have been terminated. Hence, as per the said
standard, the order was revisable.

      Therefore, the High Court went wrong in holding that the order impugned
before the Sessions Court was not revisable in view of the bar contained in
Section 397(2) of the Code.                                                       G
      Though learned counsel for the appellants endeavoured to contend that
want of sanction of the Government is a bar under Section 197 of the Code
for taking cognizance of the offences, we do not consider it necessary to
delve into that part of the contention in view of our conclusion regarding
Section 161(1) of the Bombay Police Act. The said sub-section is extracted        H
    320                      SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A below:
            "161. Suits or prosecutions in respect of acts done under colour of
            duty as aforesaid - not to be entertained, or to be dismissed if not
             instituted within the prescribed period.- (1) In any case of alleged
            offence by the Commissioner, the Revenue Commissioner, the
B           Commissioner, a Magistrate, Police officer or other person, or of a
            wrong alleged to have been done by such Commissioner, such Revenue
            Commissioner, Commissioner, Magistrate, Police officer or other person
            by any act done under colour or in excess of any such duty or
            authority as aforesaid or wherein, it shall appeal to the Court that the
            offence or wrong if committed or done was of the character aforesaid,
c           the prosecution or suit shall not be entertained, or shall be dismissed,
            if instituted, more than one year after the date of the act complained
            of.

            Provided that, any such prosecution against a Police Officer may be
            entertained by the Court, if instituted with the previous sanction of
D
            the State Government within two years from the date of the offence."

          The sub-section imposed a ban on the court from entertaining a
    prosecution for an offence falling within the purview of the sub-section a~d
    was committed by.a police officer, ifthe prosecution was instituted more than
E   one year after the date of the act complained of. The only exception to the
    said ban is, if the complainant gets sanction from the State Government to
    prosecute the police officer the aforesaid period of one year would get
    enlarged to two years. Offences falling within the purview of the sub-section
    relate to those acts done "under the colour or in excess of any duty or
    authority as aforesaid". The sub-section then widens the net a little further
F   by bringing within its sweep those offences committed through any acts done
    which are "of the character aforesaid". The expression "aforesaid" in the sub-
    section is evidently with reference to what is mentioned in Sections 159 and
    160 of the same enactment. Those provisions afford an absolute immunity to
    a public servant from any penalty or liability to pay damages in respect of
G   any "act done in good faith" in pursuance of or intended pursuance of "any
    duty imposed or any authority conferred on him by any provision of this Act
    or any other law for the time being in force or any rule, order or direction made
    or given thereunder". Such absolute immunity is not afforded in respect of
    any offence or wrong alleged to have been done by such public servant, if
    it was done "under colour or in excess of any such duty or authority as
H   aforesaid". Nonetheless the said statute has fixed a time limit for iniyation of
            K.K. PATEL v. STATE OF GUJARAT [THOMAS, J.]                       321

prosecution proceedings in such cases against the public servant. If                  A
prosecution proceedings were not initiated within such time limit, they cannot
be commenced thereafter.                               ·

       A three Judge Bench of this Court in Virupaxappa Veerappa Kadampur
v: State of Mysore, AIR (1963) SC 849 has considered the amplitude of the
expression "under the colour of any duty or authority" as envisaged in the            B
sub- section. After making reference to some of the earlier decjsions rendered
by the Bombay High Court and after noticing the meaning of the expression
"colour of office" given in Law Lexicons, learned Judges observed thus:

       "Whether or not when the act bears the true colour of the office or
       duty or right, the act may be said to be done under colour of that             C
       right, office or duty, it is clear that when the colour is assumed as a
       cover or a cloak for something which cannot properly be done in
       performance of the duty or in exercise of the right or office, the act
       is said to be done under colour of the office or duty or right. It is
       reasonable to think that the legislature used the words 'under colour'         D
       in S.161 ( 1) to include this sense ........ It appears to us that the words
       'under colourof duty' have been used in S.161(1) to include acts done
       under the cloak of duty, even though not by virtue of the duty. When
       he (the police officer) prepares a false Panchnama or a false report he
       is clearly using the existence of his legal duty as a cloak for his
       corrupt action or to use the words in Stroud's Dictionary 'as a veil           E
       to his falsehood.' The acts thus done in dereliction of his duty must
       be held to have been done under colour of the duty."

       In this case, there is no scope for contending that the offences alleged
would not fall within the purview of "acts done under the colour or in excess , F
of duty or authority" of such police officer. Even the very reading of the
ingredients for the offences alleged would show that such offences could not
be committed without being in the cloak of a public servant nor could they
be committed unless the public servant was at least under the colour of his
office. Section 166 of the Indian Penal Code which is one of the offences
alleged against the complainant is extracted below:                             G
       "166. Public servant disobeying law, with intent to cause injury to
       any person.-Whoever, being a public servant, knowingly disobeys
       any direction of the law as to the way in which he is to conduct
       himself as such public servant, intending to cause, or knowing it to
       be likely that he will, by such disobedience, cause injury to any              H
     322                     SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A           person, shall be punished with simple imprisonment for a term which
            may extend to one year, or with fine, or with both."

            The indispensable ingredient of the said offence is that the offender
    should have done the act "being a public servant". The next ingredient close
    to its heels is that such public servant has acted in disobedience of any legal
B   direction concerning the way in which he should have conducted as such
    public servant. For the offences under Sections 167 and 219 of IPC the pivotal
    ingredient is the same as for the offence under Section 166 of IPC. The
    remaining offences alleged in the complaint, in the light of the averments
    made therein, are ancillary offences to the above and all the offences are parts
C   of the same transaction. They could not have been committed without there
    being at least the colour of the office or authority which appellants held.

           Shri S.K. Dholakia, learned senior counsel for the State of Gujarat
    invited our attention to the decisions of this Court in State of Maharashtra
    v. Narhar Rao, AIR (1966) SC 1783 and State of Maharashtra v. Ram and
D   Ors., AIR (1966) SC 1786. Both the decisions dealt with the scope of Section
     161 of the Bombay Police Act. In the former, a Police Head Constable was
    tried for the offence under Section 5(2) of the Prevention of Corruption Act
    1947, for accepting bribe in the course of investigating a criminal case.
    Though the trial court convicted him of the offence the High Court acquitted
    him in appeal on the ground that prosecution was barred under Section 161 ( 1)
E   of the Act. A three Judge Bench of this Court has held that the act of
    accepting bribe is not an act done in the colour of his office. The following
    observations in that decision are apposite in the context.

           "In this connection, it is important to remember that an act is not done
           under colour of an office merely because the point of time at which
F          it is done coincides with the point of time the accused is invested with
           the powers or duty of the office. To be able to say that an act was
           done under the colour of an office one must discover a reasonabie
           connection between the act alleged and the duty or authority imposed
           on the accused by the Bombay Police Act or other statutory enactment.
G          Unless there is a reasonable connection between the act complained
           of and the powers and duties of the office, it is difficult to say that
           the act was done by the accused officer under the colour of his
           office."

          In the latter decision the same three Judges Bench considered the case
H   of two Police Head Constables who were prosecuted for certain offences and
            K.K. PATEL v. STATE OF GUJARAT [THOMAS, J.]                     323
they were convicted under Section 330 of the IPC. There also the High Court        A
took the view, in the appeal filed by them, that prosecution was barred under
Section 161 {I) of the Act. On the facts of that case learned Judges held that
the offence was not relating to an act done in the colour of office. The said
decision confined to the fact situation which arose in that case.

      We may observe that neither of the above decisions has changed the           B
legal position laid down by the three Judges Bench in Virupaxappa Veerappa
Kadampur (supra).

       In the present case, it is the admitted fact that the complaint was filed
only long after the period indicated in Section 161 of the Act was over, either
with or without sanction from the State Government. Therefore, the complaint       C
is irretrievably barred under the said provision.

      In view of this conclusion of ours it is unnecessary for us to consider
the next question whether sanction under Section 397 of the Code is necessary
to take cognizance of the offences alleged.
                                                                                   D
      We, therefore, allow this appeal and set aside the judgment under
challenge and restore the order passed by the Sessions Judge dismissing the
complaint.

v.s.s.                                                        Appeal allowed.