M.C. Desai, J.
1. This is an application for revisionof an order passed by a 1st class Magistrate on 15-4-1959 summoning the applicant to stand trial as an accused. On a warrant issued by Magistrate under Section 5 of the U. P, Public Gambling Act the applicant's house was searched by the Police and he was arrested and some instruments of gaming were seized from the house. After the arrest the police made a report in the general diary mentioning the result of the search.
This report in the general diary was treated as the first information report and was investigated by a police officer without any order from a Magistrate. After investigation the investigating officer submitted a report on the prescribed form to a Magistrate for prosecution of the applicant for the offences of Sections 3 and 4 of the Act. The Magistrate took cognizance of the offences on the report and started the applicant's trial.
On one of the dates, i. e,, 14-3-1959, the prose-cution witnesses were absent and the public prosecutor conducting the prosecution applied for adjournment. The Magistrate adjourned the case to 6-4-1959, warning that if the witnesses were not produced on that date an order under Section 247, Cri. P. C. would be passed. When the case was taken up on 6-4-1959 no prosecution witness was present and the Magistrate, who happened to be other than the Magistrate who had passed the order dated 14-3-1959, passed the following order:
'In view of the orders passed in this case on 25-2-59 and 14-3-59 and the fact that no prosecutionwitness is present to-day, let the accused persons be released under Section 249 Cri. P. C.'
After this the record was consigned to the recordroom. On 15-4-1959 the public prosecutor appliedto the Magistrate for reviving the case saying that the prosecution witnesses would be available on the date fixed for their examination and the Magistrate on the same date ordered the record to be summoned from the record room. When the record was placed before him on the same date he ordered summons to be issued against the applicant for 5-5-1959 and directed the public prosecutor to produce the prosecution witnesses on that date. That is the order sought to be revised. The contention of the applicant is that the order dated 6-4-1959 amounted to his acquittal and that the Magistrate had no jurisdiction to revive the case and re-try him as he now proposes to do. I accept the contention.
2. Offences of Sees. 3 and 4 of the U. P. Public Gambling Act are not cognizable offences. The police have no power to arrest a person accused of them without a warrant, vide the last entry in Schedule II of Cri. P. C. and Section 5 of the U. P. Public Gambling Act. A police officer can arrest a person accused of these offences only if he has been authorised to do so by a warrant issued by a Magistrate under Section 5 of the U. P. Public Gambling Act; without such a warrant he cannot arrest any person accused of these offences.
A police officer has been authorised by Section 13 of the Act to arrest without a warrant any person found gaming in any public street, place or thoroughfare but not a person found gaming in a common gaming house or opening, keeping or using a common gaming house. Even Section 13 of the Madras Gaming Act, which authorises a police officer to arrest without a warrant any person committing any offence punishable by that Act in his view was held by Subba Rao C. J., and Basi Reddy J. in Public Prosecutor v. Ramiah, AIR 1958 Andh Pra 392 to be not a cognizable offence.
3. Since the offences of Sections 3 and 4 of the U. P. Public Gambling Act are not cognizable offences the police had no power to investigate them without an order of a Magistrate; see Section 155 Cri. P. C. A Magistrate can take cognizance of an offence on a complaint or on a police report or on information. The police can make a report only after investigation; it follows that if the police cannot investigate a case they cannot make a report in that case.
If the police investigate a non-cognizable case without an order of a competent Magistrate and submit a report to a court for taking cognizance of the offence, it would be treated as a complaint case. The investigation not being under the provisions of the Cri. P. C., the report cannot be treated as one within the meaning of Section 190 of the Cri. P. C. It is open to any person to make a complaint of facts constituting an offence, a complaint can be made even by a police officer,
There may be nothing illegal in an investigation carried on by a police officer into a non-cognizable offence without an order of a competent Magistrate but a report for prosecution based on the result of such investigation cannot be treated as a report within the meaning of Section 190 and must be treated as merely a complaint of facts constituting the offence.
In State of Rajasthan v. Tarachand, AIR 1958 Raj 108, Ranawat and Sharma JJ. held that offences underSections 3 and 4 of the Rajasthan Gambling Ordinance were not cognizable offences and Section 173 Cri P. C. did not apply to any investigation of them. In the case of Ramiah, AIR 1958 Andh Pra 392 referred to above the learned Judges held that if the police investigated a non-cognizable offence without an order of a Magistrate and submitted a report, it is to be treated as a complaint and not as a report. Similarly in Chidambaram Pillai v. Emperor, ILR 32 Mad 3 it was laid down by Arnold-White C. J. and Miller J. at page 10:
'Mr. Cowdell's point was that exhibit U was a, 'Police report' and not a 'complaint'. A complaint is none the less a complaint because it is put in by a police officer. In our opinion 'the report of a police-officer' must be some statement made in connection with, or at least under colour of, the duty of the maker as a police-officer. It is not the duty of a Prosecuting Inspector to make reports of offences to Magistrates under Section 124A I. P. C.'
The same view was taken by a Full Bench of the Bombay High Court in King Emperor v. Sada, ILR 26 Bom 150; Candy J. observed at page 156 :
'whether a police officer made a formal complaint or a report of a non-cognizable summons case, his report was to be regarded as a complaint.' and at page 157 :
'There is, in my opinion, a close connection between-
(a) 'the report of a Police Officer' which is by Section 4(1) (h) of the Code excluded from the definition of 'complaint';
(b) the report of a cognizable offence, which a Police Officer is to send to a Magistrate empowered to take cognizance of such offence upon a Police report (Sections 157, 173); and
(c) the cognizance of any offence, which a Magistrate may take upon a Police report of the same Section 190 (1) (b).
If the alleged offence is a non-cognizable one, there is no section in the Code which empowers a Police Officer of his own motion to make any report to a Magistrate.'
4. Accordingly it must be held that cognizance of the offences was taken in this case by the Magistrate on a complaint. Section 249 is applicable only in a case instituted otherwise than on a complaint; jit, therefore, did not apply in the present case and the Magistrate by his order dated 6-4-1959 erroneously released the applicant under Section 249'Cri. P. C. The order must be deemed to be one under Section 247, which is applicable in a complaint case.
When in a complaint case the complainant does! not appear the Magistrate must acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to another day or dispenses with his attendance in which case he must proceed with the case in spite of his absence. Thus in a complaint case when the complainant is absent the Magistrate has jurisdiction to pass any one of the following three orders and none else :
(1) Acquit the accused.
(2) Adjourn the case to another day.
(3) Dispense with the attendance of the complainant and proceed to examine the prosecution evidence.
5. S. I, Data Dayal Sharma was the police officer who had submitted the report for the applicant's prosecution and he will be deemed to be the complainant. He was not present on 6-4-1959. On account of his absence on 14-3-1959, the Magistrate passed the order adjourning the case to 6-4-1959 and since the Magistrate did not adjourn the case to another day and did not dispense with his personal attendance he was bound to acquit the applicant under Section 247, Cri. P. C. The order of release of the applicant supposedly made under Section 249 must be treated as an order under Section 247, which order was the only order that could be passed in the circumstances.
6. An order of acquittal of the accused under Section 247 on account of the non-appearance of the police officer who had submitted a report to the Magistrate against the accused for his prosecution under Section 13 of the Madras Gambling Act was held to be legal in the case of Ramiah, AIR 1958 Andh Pra 392. Section 249 Cri. P. C. was held to be inapplicable in a case instituted upon a complaint and the order of release was treated as an order of acquittal in Public Prosecutor v. V. Rajagopala Naidu, AIR 1959 Mad 356.
7. Since the applicant must be deemed to have been acquitted of the offences of Sections 3 and 4 of the U.P. Public Gambling Act by the order dated 6-4-1958 his retrial is barred by Section 403, Cri. P. G., and the impugned order is wholly illegal.
8. I, therefore, allow this application, set aside the order passed by the Magistrate on 15-4-1959, quash the proceedings pending against the applicant and declare that he stands acquitted by the order of 6-4-1950.