1. This is an appeal by the State directed against the order dated 12-4-1961 of the Sub-Divisional Magistrate, Begumganj, acquitting the accused under Section 247, Criminal Procedure Code, on the ground that the Station. House Officer was absent on that date.
2. The accused was prosecuted by the police under Section 112 of the Motor Vehicles Act. The charge-sheet lodged by the police was treated as a complaint since the offence complained of was non-cognisable and the case was triable as a summons case. Accordingly the learned Sub-Divisional Magistrate dismissed the complaint and acquitted the accused as provided by Section 247, Criminal Procedure Code, inasmuch as the Station House Officer being the complainant was absent on that dale.
3. It is urged on behalf of the State that the charge-sheet against the accused even though with respect to a non-cognizable offence could not be treated as a complaint attracting the provisions of Section 247, Criminal Procedural Code, and hence the acquittal of the accused was illegal and without jurisdiction.
4. In our opinion the contention of the State is well founded and the acquittal of the accused has to be set aside.
5. The learned Sub-Divisional Magistrate to hold the charge-sheet to be a complaint has relied on the case of State v. Meera Sahib, AIR 1957 Trav-Co. 132, which is a case under the Motor Vehicles Act and which relies upon King Emperor v. Sada, ILR 26 Bom 150 (FB), Mehr Chiragh Din v. Emperor, AIR 1924 Lah 258, Emperor v. Shivaswami Guruswami, AIR 1927 Bom 440, Raghunath v. Emperor, AIR 1932 Bom 610 and Sircar v. Vasudevan Pillar, 17 Trav LJ 816. He has also relied upon, the cases ofEmperor v. Ghulam Hussain, AIR 1925 Lah 237, Public Prosecutor v. Ratnavelu Chetty, AIR 1926 Mad 865 (FB) and AIR 1927 Bom 440.
6. We respectfully differ from the views expressed in the aforesaid cases. So far as this Court is concerned, it is settled that a charge-sheet lodged by the Police, whether in a non-cognizable or in a cognizable offence, does not amount to a complaint (See Emperor v. Babulal, ILR (1936) Nag 50: (AIR 1936 Nag 86), which has been followed in the case of Hatimali v. The Crown, ILR (1950) Nag 87 : (AIR 1950 Nag 38). It cannot be also disputed that the police have been empowered to lodge reports of offences under the Motor Vehicles Act in Courts and prosecute the offenders. The initiation of the prosecution, therefore, is on a report of facts constituting such offences made by a police officer and cognizance of the same is accordingly taken by the Court under Section 190(1) (b), Cri. P. C.
There is essentially a difference between 'a police report' and 'report of a police officer'. The former may mean a report made by police after investigation under Chapter XIV of the Cri. P. C. But the latter would mean a report after such investigation or otherwise than on such investigation whether in a cognizable or non-cognizable offence. The definition of a complaint as given in the Criminal P. C. excludes from it 'a report of a police officer'. Even the Magistrate, in the instant case, has taken the cognizance of the report of the Station House Officer as if it was a chalan. In this view, therefore, it has to be held that no action under Section 247, Cr. P. C., could be taken by the Sub-Divisional Magistrate to dismiss the prosecution and acquit the accused. If at all the Magistrate felt aggrieved by the absence of the Station House Officer he could well proceed to deal with the matter as provided under Section 249, Cr. P. C.
7. Then, apart from the legal position as aforesaid the order passed by the sub-Divisional Magistrate is manifestly improper. The proviso to Section 247 of the Code, as has now been substituted by the amendment in 1955, gives a wider discretion to the trying Magistrate in the event of a complainant being absent on the date of hearing. The report, in the instant case, even assuming It to be a complaint, was by a public servant ecting or purporting to act in the discharge of his official duties. His examination, which is otherwise very essential, is dispensed with under proviso (aa) to Section 200 of the Code of Criminal Procedure and his presence in Court unless expressly ordered is also not necessary on every hearing. Even if the complainant is a private party the Magistrate has been given discretion to proceed with the case if his presence is not necessary. It means that the Magistrate before deciding to dismiss the complaint and acquit the accused in exercise of powers under Section 247, Criminal P. C., has first to consider if he is unable to proceed with the case without the presence of the complainant, and if he is not, then he has to consider if the absence of the complainant is without any lawful excuse or not. The Magistrate has, therefore, to exercise the powers of dismissal of the complaint under Section 247, Cr. P. C., with judicial discretion.
In the instant case presence of the Station House Officer on the date was not at all necessary. It was the fourth date fixed for the appearance of the accused and even on that date he does not appear to have been present. Therefore in the circumstances on record, the exercise of discretion, the way it has been exercised by the learned Sub-Divisional Magistrate, in refusing to dispensewith the presence of the Station House Officer and proceed with the case, can hardly be said to have but exercised judicially and properly. As is evident from the record, on the next two hearings after filing of the chalan, the Station House Officer was not personally present but the prosecution was represented by the police prosecutor. On the third hearing, that officer was in attendance and on the fourth, in question, he was absent. On the first two hearings the Magistrate never chose to exercise his powers under Section 247 of the Code and adjourned the hearing as the accused was not present.
Now on the hearing in question, the position was the same. It is, therefore, not understood why the learned Sub-Divisional Magistrate took into his head this time not to excuse the absence of that officer but to dismiss the complaint and acquit the accused. His order is absolutely silent in this matter and unmistakably indicates that he has just clutched at the powers under Section 247 of the Code for merely disposing of the case. It is, in our opinion, manifest misuse of the powers or rather is a perverse exercise of discretion. In these circumstances his order challenged before us has to be set aside as being improper and unwarranted and accordingly we do so.
8. The result, therefore, is that we allow this appealand set aside the acquittal of the accused. We Sub-Divisional Magistrate shall now proceed to try the accusedaccording to law.