Anna Chandy, J.
1. The question that arises for decision in this appeal is whether a person on trial for a non-cognizable offence can be acquitted under Section 247 of the Criminal Procedure Code for the absence of the complainant if the case was charged by the police. The accused was charged with an offence under Rule 56(3)(b) of the Kerala Motor Vehicles Rules read with Section 112 of the Motor Vehicle Act (a non-cognizable offence) and was tried by the Sub-Magistrate, Perinthalmanna who acquitted him under Section 247 of the Criminal Procedure Code on the ground that neither the complainant (The Sub-Inspector of Police, Nattukal) nor hisrepresentative was present when the case was calledfor hearing.
2. The learned Public Prosecutor takes objec-tion to this order mainly on the ground that Section 247 cannot be made to apply to a case instituted by the police.
3. Section 247 of the Criminal Procedure Code reads thus:
'If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.'
The section therefore applies only to cases where summons has been, issued, on complaint'. To decide whether the present case is one such we will have to see under which provision of the Code the learned Magistrate took cognizance of the case. A Magistrate may take cognizance of a case in one of the three ways as provided in Section 190 which reads thus:
'(i) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate especially empowered in this behalf, may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence:
(b) upon a report in writing of such facts made by any police officer:
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. (2) x x x x'
In the present case, though the Magistrate has proceeded as if the communication he received from the police was a complaint and took cognizance under clause (a) of the sub-section, the learned Prosecutor argues that since what the Magistrate received was a 'report in writing of such facts made by a Police Officer' the Magistrate could have taken cognizance of it only under clause (b). An impressive array of precedents have also been cited in support of this view. On the other hand the learned defence counsel contends that report of the police officer referred to in clause (b) is the report sent by the police regarding cognizable offences and those they are authorised to investigate, but not to any communication sent by the police involving non-cognizable offences which they have no right to investigate or report, Authorities are not wanting which support this view also.
4. On the face of it, the wording of clause (b) seems to support the interpretation put on it by the learned prosecutor. Giving the words 'such facts' in clause (b) its proper meaning, the provision would read that the Magistrate may take cognizance of an offence upon a report in writing of the facts which constitute such offence made by any Police Officer. This seems pretty well to cover the whole field of Police reports. This interpretation gains additional support if we take the view that the amendment of the Criminal Procedure Code in 1923 by which clause (b) which used to read 'upon a police report of such facts' was changed to its present form, was to counter the effect of judicial decisions which had interpreted the words 'upon a police report' referred only to reports submitted after an investigation under Chapter XIV of the Criminal Procedure Code, i. e., art investigation into a cognizable offence or under orders from a competent Magistrate into a non-cognizable offence. The two arguments noted above form the basis of the decisions cited by the learned Public Prosecutor.
5. On the other hand the learned defence counsel argues that both before and after the amendment, clause (b) will not take in a police report on a non-cognizable offence as the police have been expressly prohibited by the Code from investigating into such offences. The leading case as regards the interpretation of the clause as it stood before the amendment is a Full Bench decision oil the Bombay High Court in King Emperor v. Sada, ILR 26 Bom 150. It was held therein that: --
'There is no section in the Criminal Procedure Code, 1898, which empowers a Police Officer to make, of his own motion, any report to a Magistrate in a non-cognizable case; hence, where he files a formal complaint in such a case, he cannot be said to 'make a report' and his complaint falls within the definition of 'complaint' in Section 4(h) of the Criminal Procedure Code, 1898.'
Chandavarkar, J., one of the Judges constituting the Full Bench observed: --
'It appears to me that the Code has carefully specified the purposes for which and the occasions when the police are empowered to make reports as to offences committed or threatened, and when they travel beyond them, their reports cease to have the privilege conferred upon them by the Code and can only come within the definition of 'complaint', which is wide enough to include them.'
This decision was quoted with approval by several other High Courts. Even -after the amendment of the Code in 1923 the Bombay High Court has taken a similar view. In Emperor v. Shivaswami, AIR 1927 Bom 440 it was held by a Division Bench of that court that:--
'... . . . the report of a police officer in respect of a non-cognizable offence it it contains an allegation in writing to a Magistrate with a view to his taking action under the Code that some person has committed an offence, would amount to a complaint within the meaning of Section 4(h).'
Also in that case Fawcett, J. by way of replying to the argument that under the amendment introduced in clause (b) of Section 190, the expression 'police report', which had been interpreted in a technical sense, has been replaced by the non-technical expression 'report made by any police) officer' so as to take in all police reports observed that: --
'This conclusion, no doubt, has the merit of simplicity/ Personally, I do not think the amendment made in 1923 shows very clear that, in fact, there was an intention to make Section 190(1)(b) cover A report, not only in a cognizable case, but also in a non-cognizable case, at any rate, where a police officer has no authority to investigate it under Section 155 of the Code. I have already in Candri Bawoo v. Emperor, AIR 1925 Bom 131 expressed the view that that clause can cover a report made in a non-cognizable case, which a policeofficer has been authorised by a Magistrate to inves-tigate. But it seems to me that, unless the contrary intention of the legislature is clear, it would he disregarding the provisions of Sub-section (2) of Section 155 to say that the expression 'report made by any police-officer' in Section 190(1)(b) covers a case where he is expressly prohibited from investigating and reporting'.
TO the same effect was the view taken by Burn, J. in Mallikharjuna Prasadarao v. Emperor, 1933 Mad W N 876. Considering the question whether a police report on a non-cognizable offence was a complaint the learned Judge held:.-
'The report of the police officer in this case was 'a complaint' as defined in the Cri. P. C. It could not be considered to be such a Police re-port as is excluded from the definition of a complaint in Section 4(i)(h) of the Cr. P. C., because that kind of report can only be made by the police in cognizable cases. This is quite obvious. If the case were otherwise it would lead to the absurd conclusion that no police officer can ever make a complaint.'
In a more recent case Public Prosecutor v, A. V. Ramiah 1958 Cri LJ 737 : (AIR 1958 Andh Pra 392) -- A division Bench of the Andhra High Court including K. Subba Rao, C. J., was of the opinion that: --
'...... if a police officer does investigate into an offence under Section 12 of the (Madras) Gaming Act (not a cognizable offence) without the order of a Magistrate and files a charge-sheet it is nonetheless to be treated as a complaint and not as a police report. The label put on it by the Sub-Inspector of Police is of no significance.'
This case was followed in Jai Prakash v. State, AIR 1961 All 377 where it was held that; --
'The police can make a report only after an investigation; it follows that if the police cannot investigate they cannot report the case.'
6. These decisions noted above which give a restricted interpretation to Section 190(1)(b) seem to be based on one or more of the following grounds viz., (i) the police have no authority to investigate or report a non-cognizable offence (2) that a wide interpretation would lead to the unacceptable position that a police Officer can never make a complaint, and (3) that it is not clear that the amendment to the clause was intended to bring in all types of police reports without exception. It seems to us that unless these three objections to the wider interpretation of the clause are met squarely and satisfactorily the contention of the learned Prosecutor has to fail. We must say with respect that the decisions cited by the learned Prosecutor do not appear to have done that.
7. The Criminal Procedure Code makes, a fundamental and meaningful distinction between cognizable and con-cognizable offences. The role of the Police in non-cognizable offences is very much circumscribed. They may neither arrest the offender without warrant from the Magistrate nor investigate the offence without an order from the Magistrate. All they can do if they receive information of the commission of an offence is to refer the informant to the Magistrate. Section 155 is quite explicit on these points. There are also no provisions in the Code permitting the police officer to send any reports to the Magistrate with regard to such offences. The reference to police reports in sections 62, 114 and 145 of the Code does not substantially alter the situation. In the absence of any right either to investigate or to report it is difficult to see how the police officer may send a report on a non-cognizable offence to the Magistrate, a report which pre-supposes some sort of investigation and which provides the basis of the trial. We are not unmindful of the principle that any irregularity or even illegality in the investigation will not by itself vitiate the cognizance or trial of the case by the Magistrate (vide H. N. Rishbud v. State of Delhi, (S) AIR 1955 SC 196).
However it is one thing to say that the Code provides for curing or condoning transgressions of its provisions and entirely another thing to say that what is prohibited by one provision of the Code is permitted by another. If we interpret Section 190(1)(b) to mean that the Magistrate I may take cognizance on the report of a Police Officer on a non-cognizable offence (the report pro-supposing an investigation) we would be, in effect, holding that the type of investigation expressly prohibited by Section 155 of the Code is by clear implication permitted by Section 190. This position, we are afraid, is not very comfortable.
8. We will now consider the second objection to the wider interpretation of the clause which is that it would, in the words of Burn, J. in 1933 Mad W N 876, 'lead to the absurd conclusion that no police officer can ever make a complaint'. Section 190 provides that the Magistrate may take cognizance of an offence on a complaint, or a report of a police officer or on information. If we leave aside 'information' (a report is obviously something more than information) then any petition sent by the police to the Magistrate with a view to his taking action under Section 190 must either be a complaint or a report. To put it differently, only what is not a report will be a complaint. Now if we interpret clause (b) as referring to all police/ reports regardless of whether the offence is cognizable or not or whether the investigation of the offence is authorised by the Magistrate or not then it would mean that the police will have no occasion to make a complaint. In other words a police officer, in his official capacity, can, never make a complaint. This is but the logical result of the wider interpretation of Section 190(1)(b). Indeed this seems to have been recognised in one of the cases cited by the learned Prosecutor.
In State of Rajasthan v. Mahmood Ghasi 1962 (i) Cri L J So : (AIR 1962 Raj I) it was observed :
'In the instant case, the police report in connection with an offence under Section 160 I. P. C. which according to Schedule 2 of the Criminal Pro cedure Code, is a non-cognizable offence and the saidreport was not covered by the provision of Section155 of the Criminal Procedure Code. However,the said report was submitted by the Station HouseOfficer in exercise of his functions as a police officer. Such a report would fall within the scopeof. Section 24 of the Police Act.
It cannot, therefore, be conceived that the police report in question was by the Station House Officer in his private or individual capacity. The report was obviously by a police officer in exercise of his function as such officer. In our opinion, where a report is submitted by a police officer in the capacity of his being an officer of the police, such report cannot be considered anything other than a police report, though it may pertain to a non-cognizable offence.'
We must say, with respect that we cannot persuade ourselves to the view that the Criminal Procedure Code does not envisage a police officer, ever making a complaint in his official capacity. Section 195 and Section 200(aa) of the Criminal Procedure Code do contemplate the filing of a complaint by a public servant, which term would include a police officer, acting in his official capacity. Moreover there would be occasions when a police officer may have to file complaints under certain special laws. In another case cited by the learned Prosecutor, State of Madh Pra v. Abdul Rashid, AIR 1963 Madh Pra 71 this difficulty has been sought to be met thus': --
'It would be fallacious to argue that on the above interpretation a police officer will never be competent to file a complaint under the various special laws where cognizance cannot be taken except on a 'complaint'. This argument may be illustrated thus. Under the Telegraph Act a Magistrate cannot take cognizance except on a complaint filed by a person authorised in that behalf. If a police officer is so authorised and he filed a complaint under that enactment it would be called a 'complaint' because of Section 4(i)(h) but our interpretation is that the expression 'report of a police officer' includes a police officer's report in a non-cognizable 'offence so that it is not a complaint, and, since it falls outside the purview of complaint, the Magistrate would be disabled to take cognizance. The fallacy of this argument lies jn disregarding the elementary rule of interpretation that the definition of a particular word in a particular statute cannot be used for Interpreting that word in another statute.'
The rule of interpretation is, no doubt, perfectly valid. All the same it does not solve our problem. Whatever may be the meaning attached to the term complaint in other Acts the Magistrate when taking cognizance of an offence complained of will be governed by the provisions of Section 190 Criminal Procedure Code and if we interpret clause (b) of the Section to take in reports of a police officer of facts which constitute any offence then the Magistrate will have to take cognizance of the offence under that clause irrespective of the label the police officer may have put on his petition. The question whether the Magistrate takes cognizance under clause (a) or clause (b) is of more than mere academic interest for if cognizance is under clause (b) then the accused may not lay claim to the quite valuable right conferred on him by Seo-tion 247 of the Criminal Procedure Code to be ac-quitted for want of diligent prosecution regardless of the merits of the case against him.
9. We shall now consider the intention behind lie Amendment to clause (b) in 1923. This according to the learned Prosecutor was clearly to bring within its ambit all reports by the police. Cases were also cited to support this view. However in a case decided soon after the amendment a different view has been taken. As already noted, Fawcett, J. in AIR 1927 Bom 440 had observed that the amendment was intended to 'cover a re' port made in a non-cognizable case, which a Police Officer has been authorised by a Magistrate to investigate.'
10. This view perhaps is nearer the mark. The pre-amendment decisions which gave a restricted meaning to the term 'police report' as it occurred in clause (b) interpreted it with reference to the definition of 'complaint' in Section 4(h), Section 4(h) defines complaint thus: --
' '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 not include the report of a police officer;'
11. What was decided in those cases was that the 'Police report' in section 190(1)(b) and 'the report of a police officer' in Section 4(h) mean the something i. e. the 'police report' mentioned in Section 173 -- a report sent by the police after an investigation under Chapter XIV of Criminal Procedure Code. This interpretation of the term 'police report' naturally had its effect on the meaning attached to the term 'complaint' also. A complaint under Section 4(h) was taken to mean as excluding only a report of a police officer sent under Section 173 i. e. regarding a cognizable offence or a non-cognizable offence the investigation of which was authorised by a competent Magistrate. Now if we are to hold that under Section 190 as it now stands a 'complaint' will exclude even a report by the police on a non-cognizable offence they are not authorised to investigate by a Magistrate, the effect of it would be that what will amount to a complaint under Section 4(h) becomes a police report tinder Section 190. It appears' to us that if the intention of the amendment to Section 190(1)(b) in 1923 were to bring within its purview every police report without exception, a corresponding change would have been made in Section 4(h) also.
12. For these reasons it appears to us that a report of a police officer on a non-cognizable offence which he was not authorised by a competent Magistrate to investigate, would amount to a complaint under Section 190(1)(a). The provisions of Section 247 Criminal Procedure Code are therefore applicable to such a case. The 'appeal fails and is dismissed.