H.R. Krishnan, J.
1. In this State appeal directed against the acquittal under Section 247 Criminal Procedure Code of a person charged under Section 33 (a) of the Madhya Bharat Excise Act (Madak Draya Vidhan 2009 Sm) there are two questions -- first whether a report by the Excise Sub-Inspector under the Act is a complaint for the purposes of Section 247 of the Criminal Procedure Code and second whether in the circumstances of the present case the order of acquittal under Section 247 was proper, even if the Excise Officer's report is a complaint.
2. There is already a decision of this Court which, however, has not been reported but has been indexed in State v. Madia AIR 1955 NUC (Madh-B) 3785 (A), where it was held that a report by the Sub-Inspector of Excise under Section 10 of M. B. Ex. Act of 2006 Sm. is in the eye of law a police report and not a complaint. This prosecution is under Section 33 fa) of the Act 14 of 1952 (M. B. Madak Draya Vidhan 2009 Sm) started on the report of a competent Excise Officer under Section 60 of this Act.
This section (as well as' Section 39 of the earlier, Madak Draya Vidhan of 2006) empowers the officer to exercise the powers conferred on an officer in charge of police station by the provisions of the Cr. P. C. Section 61 of this Act (as well as Section 40 of the Act 2006) provides that the report of such an Excise Officer should be deemed to be a police report for the purposes of Section 190 Cr. P. C. Since Section 247 Cr. P. C., is applicable only to complaint as defined in Section 4 (h) of the Cr. P. C., the order of the Magistrate was not proper in this case.
3. In view of the answer to the first question it is unnecessary to go into the second.
4. The appeal is allowed and the case should go to the Magistrate to be taken up for hearing at the stage at which it stood when the accused made his appearance.
A.H. Khan, J.
5. I agree that the appeal should be allowed and the case be sent back.