U.L. Bhat, J.
1. This is a petition filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in C.C. No. 2344 of 1979 on the file of the Judicial II Class Magistrate, Cannanore, in which the petitioner figures as an accused.
2. The Sub-Inspector of Police, Cannanore Town Police Station, on 3-10-1979 submitted a report to the court alleging that on 27-9-1979 at about midnight the petitioner was found behaving in a disorderly and indecent manner using obscene and abusive language against passers-by and neighbours and thereby committed an offence punishable under Section 290, I.P.C. The Court took cognizance of the offence and issued summons to the petitioner. Thereupon the petitioner rushed to this Court with the present petition.
3. Though several grounds were urged in the petition, attack against the proceedings was confined at the stage of arguments to the following grounds, namely, that the Sub-Inspector of Police had no power to file a report and therefore the court should not have taken cognizance, (2) in any event the complainant had to be examined by the Magistrate and (3) the allegations did not make out an offence,
4. The offence under Section 290, I.P.C. is a non-cognizable offence, to investigate which a Station House Officer hag no authority. He has to obtain an order of the court for the purpose of investigation under Section 155(2) of the Code. The Station House Officer in this case did not do any act of investigation as contemplated under the Criminal Procedure Code. The report of the police officer proceeded on the basis that. the offence was committed in his presence, Under these circumstances, the report submitted by him which is called 'petty case charge-sheet' cannot be treated as a police report defined under Section 2(r) and coming within the scope of Section 190(1)(b) of the Code. On the other hand, it has to be treated as a complaint under Section 2(d) and coming within the scope of Section 190(1)(a) of the Code. I am therefore unable to agree that the trial court erred in taking cognizance,
5. On the strength of the decision of the Calcutta High Court reported in Shyama Prasanna v. State 1976 Cri LJ 1517, it is argued before me that the report submitted by the police officer in the event of being treated as a complaint, cannot be treated as a complaint instituted by a public servant and therefore the complainant should have been examined as provided in Section 200 of the Code before cognizance could be taken. In the case referred to, a police officer in a non-cognizable offence conducted investigation and thereafter laid a complaint. It was held that he did so not in his capacity as a police officer and therefore the exemption provided in Section 200 proviso does not apply, and the non-examination of the complainant would affect the jurisdiction of the court to take cognizance. It may be noted that in that decision what the police officer purported to do was to file a complaint and not to submit a report.
6. With due respect, I am unable to follow the above decision. It is true that a police officer may in his private capacity submit , a complaint to court in which case his examination would be mandatory under Section 200 of the Code. At the same time, it is well-recognized that it is open to a Station House Officer to lay a complaint before a Magistrate in which case the proviso to Section 200 would apply and the examination of the complainant would not be mandatory. Where a report submitted by a Station House Officer cannot be treated as a police report under Section 173 of the Code, under certain circumstances, it could be treated as a complaint as defined in Section 2(d) of the Code and coming within the scope of Section 190(1)(a) of the Code, In such a case the Station House Officer submits the complaint or the report not in his private capacity but in his capacity as a police officer. It cannot be said that his examination on oath is necessary under Section 200 of the Code and that cognizance cannot be taken without his examination.
7. This view receives support from the observations of the Division Bench of this Court in State of Kerala v. Ali Meerankutty : AIR1965Ker59 . In that case, the accused was acquitted under Section 247 of the Code of Criminal Procedure 1898 (old Code) on the ground that the complainant Sub-Inspector of Police was absent. The offence alleged against the accused was a non-cognizable offence and cognizance was taken on a report submitted by the police officer. It was held that the report must be treated us a complaint under Section 190(1)(a) of the Code given by public servant and Section 247 of the Code applied. Thus, it follows that the report given by the police officer in the instant case is a report given by him in his capacity as a public servant and therefore the examination of the complainant was unnecessary.
8. I do not think in a proceeding under Section 482 of the Code, I can really go into the merits of the contentions put forward by either side. It is argued before me that the petty case charge-sheet only mentioned that the accused uttered some words and mere uttering of words cannot attract Section 290, I.P.C. Whether the words uttered are obscene and are sufficient to cause annoyance to the public or cause public nuisance or whether the words were accompanied by gestures or other action, are all matters to be gone into at the stage of evidence. I cannot go into them at this stage.
In the result, the petition deserves to be and is hereby dismissed.