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Siyam Singh Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Judge
Reported in1968CriLJ1354
AppellantSiyam Singh
RespondentState
Excerpt:
- - 7. the said contention of shri thakur is clearly untenable. this distinction between a police report and a complaint is clearly recognised in the definition of the word 'complaint' in section 4(1)(h) of the criminal p. , in which it is clearly stated that a complaint does nto include the report of a police officer. the said document is clearly a 'complaint' as denned in section 4(1)(h) of the criminal p. in the present case, the offence complained of was the offence under section 182 of the indian penal code, and the station house officer, who was the public servant concerned within the meaning of section 195(1)(a), filed the complaint in writing in the court of the sub-divisional magistrate, kalpa......had been stolen. on investigation, the police found the report to be false. thereupon, the station house officer, kalpa, sought to file a complaint alleging an offence under 8.182 of the penal code against the petitioner herein, in the court of the sub-divisional magistrate, kalpa. the station house officer sent the complaint to the prosecuting inspector, shri s.d. vasudeva, who present, edit in the court of the sub. divisional magistrate, kalpa, on 19.9.1966. on the same date, the sub-divisional magistrate, kalpa, passed the following order-presented by shri s.d. vasudeva, p.p., today. the case be registered and the accused be summoned for 3rd october, 1966.when the petitioner appeared before the magistrate, he raised a preliminary objection that there was no proper complaint before the.....
Judgment:
ORDER

T.V.R. Tatachari, J.

1. This Criminal Revision Application has been filed against the judgment of the learn, ed Sessions Judge, Mahasu and Kinnaur Districts, dated 2.6.1967, in Criminal Revision No. 9/K/10 of 1967, confirming the order passed by the Magistrate, 2nd Class, Kalpa, District Kinnaur (H.P), dated 31.12.1966, whereby the learned Magistrate held that a complaint regarding an offence under Section 182, Penal Code., filed against the petitioner herein, was in order.

2. The facts which have given rise to this Revision Application may be briefly stated. The petitioner herein, Sujjan Singh, lodged a report on 29.7.1965, at the police post, Sangla, that a burglary had taken place in his house and currency ntoes of the value of Rs. 735/- had been stolen. On investigation, the police found the report to be false. Thereupon, the Station House Officer, Kalpa, sought to file a complaint alleging an offence under 8.182 of the Penal Code against the petitioner herein, in the Court of the Sub-Divisional Magistrate, Kalpa. The Station House Officer sent the complaint to the Prosecuting Inspector, Shri S.D. Vasudeva, who present, edit in the Court of the Sub. Divisional Magistrate, Kalpa, on 19.9.1966. On the same date, the Sub-Divisional Magistrate, Kalpa, passed the following order-

Presented by Shri S.D. Vasudeva, P.P., today. The case be registered and the accused be summoned for 3rd October, 1966.

When the petitioner appeared before the Magistrate, he raised a preliminary objection that there was no proper complaint before the Magistrate, and that the Magistrate could nto take cognizance of the case on the complaint made before him. The argument on behalf of the petitioner was that the alleged offence under Section 182 of the Penal Code could be taken cognizance of by the Magistrate only on a complaint as provided in Section 195(1)(a) of the Criminal P.C., that the complaint alleged to have been presented by Shri Vasudeva was in reality a police report after investigation and nto a complaint as defined in Section 4(1)(h) of the Criminal P.C. and that, thereforee, the Magistrate had no jurisdiction to take cognizance of the offence under Section 182 of the Penal Code. Magistrate, by his order, dated 31.12.1966, overruled the preliminary objection, and held that what was filed before him was a complaint, and that the said complaint was in order, and that he had taken proper cognizance of the case.

3. Against that order of the learned Magistrate, a revision petition was filed in the Court of Shri Rajendra Nath Aggarwal, Sessions Judge, Mahasu. The learned Sessions Judge, by his judgment, dated 22.6 1967, held that the order of the Magistrate was correct, and dismissed the revision petition. It is against that judgment that the present Criminal Revision Application has been filed in this Court.

4. Shri H.S. Thakur, the learned Counsel for the petitioner contended before me that the alleged complaint filed by the police in the Court of the Magistrate was really a police report for investigation and nto a complaint as defined in Section 4(1)(h) of the Criminal P.C., that as regards an offence under Section 182 of the Penal Code, there should be a complaint in writing by the public servant concerned or of some toher public servant to whom he is subordinate, that there was thus no complaint before the Magistrate as required by Section 195(1)(a) of the Criminal P.C. and that, thereforee, the learned Magistrate had no jurisdiction to take cognizance under Section 185(1)(a) of the Criminal P.C., regarding the alleged offence under Section 182 of the Penal Code.

5. This contention appears to hive been raised before the learned Sessions Judge, as he mentioned the said contention in paragraph 8 of his judgment. He (sic) antoher contention which appears to have been put forward before him, namely, that the complaint was nto presented by the complainant personally in the Court of the Magistrate, but was presented by the Prosecuting Inspector, and that, thereforee, there was no proper complaint before the Magistrate on which the Magistrate could take cognizance of the case. The learned Sessions Judge dealt with the said contention and held that Section 195(1)(a) of the Criminal P.C., does nto provide that the complaint should be presented by the complainant personally, and that the complaint of the Station House Officer which was presented by the Prosecuting Inspector was quite in order.

6. Shri H.S. Thakur did nto raise before me the aforesaid contention, namely, that the complaint of the Station House Officer should have been filed by him personally and nto through the Prosecuting Inspector. Shri Thakur raised before me only the contention which was set out above, namely, that the alleged complaint filed by the police before the Magistrate was in reality a police report after investigation and nto a complaint such as is defined in Section 4(1)(h) of the Criminal P.C., and such as is required by Section 195(1)(a) of the Criminal P.C.

7. The said contention of Shri Thakur is clearly untenable. There is a clear distinction between a police report and a complaint by a public servant, who in this ease, happens to be a police officer. A police report is the report sent by a police officer to the concerned Magistrate under Section 178, which occurs in part V which consists of only one Chapter, viz., Chapter 14, and the said Chapter contains Sections 154 to 166. The said sections in part 5 (or Chapter 14) deal with information to the police and their powers to investigate. When information relating to the commission of a cognizable offence is given orally or in writing to an officer in charge of a police station, he has to enter it in a book kept for the purpose, as provided in Section 154, and thereafter to proceed to investigate into the case without the necessity of an order of a Magistrate, as provided in Section 156. On the toher hand, when information is given orally or in writing to an officer in charge of a police station of the commission of a non-cognizable offence, he has to enter it in a book kept for the purpose and refer the informant to the Magistrate, as provided in Section 155(1) of the Criminal P.C. The said police officer has no power to investigate into the non-cognizable case without the order of a Magistrate having power to try such a case or commit the same for trial. It is only when the police officer receives the order of the Magistrate to investigate into the non-cognizable case, the officer can investigate in to the said case, as provided in Sub-sections (2) and (3) of Section 155.

After the completion of the investigation, either in a cognizable case or in a non-cognizable case, the police officer has to forward, as provide ed in Section 178(1) of the Criminal P.C., to a Magistrate empowered to take cognizance of the offence on a police report, a report setting forth the names of the parties, the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody, or baa been released on his bond, and, if so, whether with or without sureties. It is this report under Section 178 1) that is usually referred to as the 'police report'. It has to be ntoiced that by the said report, the police officer merely forward the information set out in the section, to the Magistrate, The section does nto require the police officer to state in his report whether there is sufficient evidence regarding the alleged offence or nto or to make a complaint within the meaning of Section 4(1)(h) of the Criminal P.C. i.e., to make an allegation 'orally or in writing to a Magistrate, with a view to his taking action, under the Code, that some person, whether known or unknown, has committed an offence'.

In toher words, A police report is just a report to the concerned Magistrate, by the police officer who made an investigation either in a cognizable case or in a non-cognizable case, setting out the various data or information or evidence gathered by him in the course of his investigation, and it is entirely different from a complaint in which the complainant has to make an allegation to the Magistrate, with a view to the Magistrate's taking action under the Code, that some person, whether known or unknown, has committed an offence. This distinction between a police report and a complaint is clearly recognised in the definition of the word 'complaint' in Section 4(1)(h) of the Criminal P.C., in which it is clearly stated that a complaint does nto include the report of a police officer.

8. In the present case, the petitioner made a report to the Station House Officer about the commission of a theft in his house. The offence of theft is a cognizable offence. The Station House Officer conducted the investigation, and found that the report of the petitioner was a false one, though it is nto clear from the record produced before me as to whether the Station House Officer sent a report about his investigation to the concerned Magistrate as required by Section 173(1) of the Criminal P.C. In the absence of any information to the contrary, it has to be presumed that a report was sent by the Station House Officer, under Section 173(1), to the Magistrate. But, that report must have been only about the result of the investigation made by the Station House Officer regarding the alleged offence of theft, and is nto the same as the complaint filed through Shri Vasudeva, in the Court of the Sub. Divisional Magistrate, Kalpa. In this complaint filed through Shri Vasudeva, Prosecuting Inspector, the Station House Officer, set out a brief history of the report made by the petitioner, Sujjan Singh, that a theft had been committed in his house, and then stated as follows:

In the inner circumstances the accused has given knowingly false report to the police, so that Surat Singh, Guard, may be saved. No sum of Government money is stolen. After investigation, report was found to be incorrect. thereforee, complaint under Section 182, Indian Penal Code, against the accused, is presented in the Court for disposal according to law. The complaint will be conducted by the P.P.

A copy of the complaint, which is in Hindi, was filed along with the Revision Application. The above is the translation of the last portion of the said complaint in Hindi.

9. Thus, the complainant clearly alleged in the above document, which was addressed to the Magistrate, and which was filed by Shri vasudeva in the Court of the Magistrate, that the petitioner herein bad committed an offence under Section 132 of the Indian Penal Code, and that the Magistrate should take action and dispose of the complaint in accordance with law. The said document is clearly a 'complaint' as denned in Section 4(1)(h) of the Criminal P.C. which runs as follows:

(b) 'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code, that some person, whether known or unknown, has committed an offence, but it does nto include the report of police officer.

10. The contention of the learned Counsel that the said document was a police report and nto a complaint is, thereforee, untenable. Section 195(1)(a) provides as follows:

195(1). No Court shall take cognizance (a) of an offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the com. plaint in writing of the public servant concerned, or of some toher public servant to whom he is subordinate:

In the present case, the offence complained of was the offence under Section 182 of the Indian Penal Code, and the Station House Officer, who was the public servant concerned within the meaning of Section 195(1)(a), filed the complaint in writing in the Court of the Sub-Divisional Magistrate, Kalpa. thereforee, the lower Courts were right in holding that there was a proper complaint such as is required by Section 195(1)(a), Criminal P.C. filed before the learned Magistrate, and the learned Magistrate rightly took cognizance of the said complaint.

11. The Criminal Revision Application, there, fore, fails, and is dismissed.


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