Saramma Zacharia vs State

Koshi, C.J.—This revision petition is directed against the decision of the Division First Class Magistrate of Chenganoor in Criminal Appeal No. 6 of 1951 whereby the learned Magistrate confirmed the conviction and sentence which the Taluk Second Class Magistrate of Thiruvella passed against the petitioner in C.C. No. 52/50 for commission of an offence punishable u/s 288, Travancore Penal Code (Section 290, I.P.C.), The punishment awarded is a fine of Rs. 8 and in default to undergo simple imprisonment for seven days.

Of the two points raised in the revision I may at once state that there is absolutely no merit in the contention that the act attributed to the petitioner did not constitute an offence u/s 288. That she used vulgar language against P.W. 4 in a public place and that it caused annoyance to the public have concurrently been found by the two courts below. Sitting in revision I cannot interfere with those findings. It is puerile to argue that such conduct in a public place will not amount to public nuisance.

Nor is there any substance in the other point, namely that the magistrate had no jurisdiction to take cognisance of a non-cognisable offence like the offence u/s 288 on a report by a police officer. u/s 186(1), Travancore Criminal P.C. (Section 190(1) of Act 5 of 1898) any magistrate may take cognisance of any offence (a) upon receiving a complaint of facts which constitute such offence or (b) upon a report in writing of such facts made by any police officer. Clause (b) adopts the language of Section 190(1)(b) of Act 5 of 1893 as amended in 1923. There is almost consensus of judicial opinion that after that amendment a criminal court could take cognisance of even a non-cognisable offence upon a police report. See Sohoni''s Criminal Procedure Code (14th Edn.) p. 359 and B.B. Mitra''s commentaries (11th Edn.) Vol. 1, pp. 546 and 547.

Further if a report to a magistrate by the police with respect to a non-cognisable offence could not be considered as a report within the meaning of Section 186(1)(b) such report will constitute a complaint as that expression is defined in Section 4(1)(d) (Section 4(1)(h) of Act 5 of 1398). See-King Emperor v. Sada 26 Bom 150 (FB); Mehr Chiragh Din v. Emperor AIR 1924 Lah 258 ;- Emperor Vs. Shivaswami Guruswami, ;-Raghunath v. Emperor AIR 1932 Bom 610 and�Sirkar v. Vasudevan Pillai 17 TLJ 816.

It is therefore clear that if not u/s 186(1)(b) the Magistrate could have taken cognisance of the offence u/s 186(1)(a). In fact after Section 200, Criminal Procedure Code (Act 5 of 1898) was amended in 1923 by the addition of proviso (aa) the controversy whether a report by the police to a Magistrate regarding the commission of a non-cognisable offence would amount to a police report has ceased to have any practical importance. Proviso (aa) to Section 200 corresponds to proviso (b) to Section 198, Travancore Criminal Procedure Code, Act 8 of 1117 and it enacts that when the complaint is made in writing the Magistrate is not bound to examine the complainant an oath before entertaining it in any ease in which the complaint has been, made by the court or by a public servant acting or purporting to act in the discharge of his official duties. This aspect is referred to in the Pull Bench decision in-Public Prosecutor v. Ratnavelu Chetty AIR 1921 Mad 865 (FB). That case laid down that by virtue of Section 190(1)(b) and proviso (aa) to Section 200, Criminal Procedure Code, the Magistrates mentioned in Section 190 are entitled to take cognisance of even non-cognisable offence upon a report made in writing by a police officer without examining the officer upon oath. The provision in Section 186(2)(Section 190 (1)(c), Act 5 of 1898) that a Magistrate may also take cognisance of an offence upon information received from any person other than a Police Officer�that such offence has been committed has a bearing on the true import of the antecedent provisions. It contemplates the possibility of information other than a formal report u/s 171(173) being received by a Magistrate from the Police and shows that the Legislature did not intend that the Magistrate though empowered to take cognisance on information from any other person must, when he receives information from a police officer upon a non-cognisable offence, hold his hand and decline to take cognisance. The proceeding in this case therefore really started under proper legal auspices. The revision fails and I dismiss it.