The State of Madhya Pradesh vs Abdul Rashid

Shiv Dayal, J.

This appeal is directed against the order of acquittal passed u/s 247, Cr. P. C. A complaint was filed against Abdul Rashid accused in the Court of the Sub-Divisional Magistrate, Bagum- ganj under the Motor Vehicles Act, by the Station Officer, Ghairatganj. On March 31, 1961, the Sub-Divisional Magistrate acquitted the accused just because of non-appearance of the complainant, S. O., Ghairatganj. The only question in this appeal is whether Section 247 of the Code of Criminal Procedure applies to a case where "a complaint" is filed by a police officer.

The operation of Section 247, Cr. P. C., is not attracted unless the case was instituted on a complaint. The word ''complaint'' is, defined in Section 4 (i) (h) of the Code. That definition expressly excludes the report of a police officer. It is argued for the defence that the expression "report of a police officer" within the meaning of that definition connotes only that report which is submitted in a cognizable case, but when a police officer reports a non-cognizable case to the Magistrate, it tantamounts to a ''complaint''. Our attention is invited to the provisions contained in Section 190 of the Code of Criminal Procedure. That section deals with the modes in which a Magistrate may take cognizance of an offence. Initially Clause (b) ran thus :

"Upon a police report of such facts............'' In 1923 this Clause was amended evidently, to replace the expression "police report'''' which had been interpreted in a technical sense by a nontechnical expression "report in writing of such facts made by a police officer". There had been a conflict of opinions as to whether the expression "police report" was confined to cognizable cases or concerned non-cognizable offences also where the police had no authority to investigate under Chapter XIV of the Code. The framers of the law obviously amended Clause (b) so as to widen its scope. So that now a Magistrate can take cognizance of a case u/s 190 (b) on report of a police officer even in a non-cognizable case. If the intention of the legislature was not to exclude from the word "complaint" report of a police officer in a non-cognizable case for the purposes of Section 190, such a report fell within the purview of Clause (a) of Section 190, and no amendment of Clause (b) was necessary. Obviously enough the amendment was necessitated by the fact that the framers of the law did not call such a report as a "complaint". It is excluded from the ambit of the word "complaint" as defined in Section 4 (i) (h) of the Code. It seems to us clear that it was for that reason alone that the wording of Clause (b) was modified so as to cover every report of a police officer whether in a cognizable or in a non-cognizable case. It must be remembered that the definition of the word "complaint" was not altered when Clause (b) of Section 190 was amended. We see no warrant to read the words "but it does not include the report of a police officer" in a narrow and limited sense so as not to apply to the report of a police officer made in a non-cognizable case.

For these reasons, the only construction which is possible is that a case instituted on a report by police even in a non-cognizable case cannot be said to have been taken cognizance of on a "complaint'''', The provisions contained in Section 247, Cr. P. C., are, therefore, inapplicable to such a case.

The learned counsel for the respondent relies on State v. Mira Saheb AIR 1957 Trav-Co. 132. That was a case under the Motor Vehicles Act. There it was contended on behalf of the State that the proceedings having been initiated not on a complaint but on the basis of a police report, the acquittal u/s 247 Cr. P. C., was irregular. This contention did not find favour with the learned Judges. They only relied on a decision of their Court in Saramma Zacharia v. State AIR 1953 Tra Co. 43 in which the question of jurisdiction of a Magistrate to take cognisance of a non-cognizable offence on the report of a police officer was dealt with, and there it was observed as follows :

"Further, if a report to a Magistrate by the police with respect to a non-cognizable offence could not be considered as a report within the meaning of Section 186 (1) (b) of Travancore Cr. P. C. (corresponding to Section 190 (1) (b) of the Indian Cr. P. C.) such report will constitute a complaint as that expression is defined in Section 4 (i) (d) (corresponding to Section 4 (1) (h) of the Indian Act)."

In that case the only question was whether the Magistrate could take cognizance, upon a report by a police officer of a non--cognizable offence. The question was of the jurisdiction of the Magistrate to take cognizance and not of the jurisdiction of the Magistrate to treat the report of the police officer as a complaint within the meaning of Section 4 (1) (h). Relying on Clause (b) of Section 190(1) of the Code of Criminal Procedure, it was held that the Magistrate had jurisdiction to take cognizance. That decision is therefore, inapplicable to the question with which we are dealing. And in Mira Sahab''s case AIR 1957 Tra Co. 132 no other reasons are given for taking that view.

Our attention is also invited to Public Prosecutor Vs. A.V. Ramiah, , where it is held that a charge sheet filed by a police officer, who investigates into an offence u/s 12 of the Gaming Act without an order of a Magistrate, must be treated as a complaint and not as a police report. On this basis it has further been held that for non-appearance of the complainant, an order u/s 247, Cr, P. C. is legal and proper. The only reasoning to be found in this decision is that in the view of the learned Judges the expression "report of a police officer" in Section 4 (i) (h), Cr. P. C., is confined only to cognizable offences where a police officer is empowered to investigate under Chapter XIV. of the Code and since a police officer cannot investigate into a non-cognizable case without the order of a Magistrate, the label of charge sheet submitted by him is of no consequence. The expression "report of a police officer" is not defined in the Code. In the absence of any restrictive meaning having been assigned to it by the Legislature, a report made by a police officer even in a non-cognizable case is none the less a "report" and it is a report "of a police officer". That being so, we are unable to persuade ourselves to agree that that expression must be read as restrictive of the report made in a cognizable case.

Then we have before us the case of Jai Prakash Vs. State, , in which it is held that although there may be nothing illegal in an investigation carried on by a police officer into a non-cognizable offence without the order of a competent Magistrate, yet a report for prosecution based on the result of that investigation cannot be treated as a report within the meaning of Section 190 and roust be treated as merely a complaint constituting the offence. In arriving at that conclusion the learned Judge has relied on three decisions: (i) State of Rajasthan Vs. Tarachand, , is not in point so far as the present question is concerned. (2) Public Prosecutor Vs. A.V. Ramiah, , has already been discussed by us. (3) The third case relied on is Chidambaram Pillai v. Emperor ILR Mad 3 where these observations were made :

"If the alleged offence is a non-cognisable one, there is no section in the Code which empowers a police officer of his own motion to make any report to a Magistrate."

That was a case decided prior to the amendment of 1923 and it is wholly unnecessary for us to go into the question whether a police officer could make a report in a non-cognizable case u/s 190 (1) (b) of the Code.

For these reasons we are unable to subscribe to the view taken in the aforesaid decision.

Yet another case State of Orissa Vs. M.V. Apparao, , is cited. In that case the Chief Inspector of Factories, Orissa, had forwarded a complaint to the S. D. M., Sam-balpur, for prosecution u/s 92 of the Factories Act. Eventually the accused was acquitted because of unaccounted for and unexplained absence of the ''complainant''. The state filed an appeal against acquittal. The acquittal was upheld but we do not. find in the report of that decision any discussion whether Section 247 could apply to that case or not. It seems to us clear that that position was just assumed.

We have already stated our reasons to hold that Section 247, Cr. P. C., has no application to the present case and the learned Magistrate acted without jurisdiction in acquitting the accused on the ground of non-appearance of the police officer who initiated the matter and on whose report the Magistrate took cognizance. This was also the view taken in State of M. P. v. Abdul" Qadar Khan, Cr. A. No. 329 of 1961, D/- 9-10-1961 (MP) : in Emperor v. Babulal ILR (1936) Nag 50 : (AIR 1936 Nag 86) and in Tarapada Sarkar Vs. The State, .

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 files a. complaint under that enactment, it would be called a ''complaint'' because of Section 4 (1) (h) but our interpretation is that the expression "report of & 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 in 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. See Craies on Statute Law at page 153. In Macbeth and Co. v. Chislett 1910 AC 220 it is observed:

"It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone".

In The Vanguard Fire and General Insurance Co. Ltd., Madras Vs. Fraser and Ross and Another, , their Lordships have said :

"It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive in as much as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words unless there is anything repugnant in the subject or context ................................. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances."

In Raj Krushna Bose Vs. Binod Kanungo and Others, , their Lordships observed :

"Whenever it is possible to do so it is the duty of the Court to construe provisions which appear to conflict so that they harmonise." See also N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, .

The word ''complaint'' is not a term of Article It means complaining; expression of grief and dissatisfaction; expression of censure or injuries; a grievance. But for the purposes of the Criminal Procedure Code -- and for those purposes only--it has been defined in the Code and has been given a restricted meaning in so far as any report of a police officer which complains of an offence has been expressly excluded. Why this is done is transparent from the scheme of the Code. The Police as one of their main duties, investigate into offences. That is a special function of the Police Department. Different procedures are enacted in the Code of Criminal Procedure for the trial of an offence for which a police officer makes a report and for the trial of an offence about which any person other than a police officer makes a complaint. Compare, for instance, Section 207 with Section 207A, Section 251A and Section 252. It was, therefore, absolutely essential to draw a clear line of demarcation between a case instituted at the instance of the Police and a case otherwise instituted or taken cognizance of. By using the word ''complaint'' for the second and by excluding the applicability of that word to the first the framers of the law drew that clear and distinct line of demarcation. Whether a police officer is empowered to investigate under Chapter XIV or not is altogether a different aspect and that cannot be confused with the question whether his report falls within the purview of the definition of ''complaint'' in Section 4 (1) (h) or not.

This discussion leads us to conclude that the report of a police officer in a non-cognizable case will not be a complaint within the meaning of Section 4 (1) (h) of the Code of Criminal Procedure although it will be so for the purposes of other enactments; for instance, under the Telegraph Act. . The word ''complaint'' as it occurs in other laws cannot be given the same limited and restricted meaning as has been expressly assigned to it in the Code of Criminal Procedure for the purposes of that Code.

Now the question is whether we should order a retrial. Our answer is in the negative. The prosecution acted in an irresponsible manner before the trial Magistrate. No one cared to appear on its behalf on the date of hearing. For such callousness and want of proper diligence on the part of the prosecuting agency the accused cannot be made to suffer. Here we recall the observations of their Lordships of the Supreme Court in Machander Vs. State of Hyderabad, .

"Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go." Applying these observations here and having regard to the nature of the offence in the present case, we are of the opinion that it would be unfair and unjust to send it for a re-trial.

In the result this appeal is partly allow ed. The order of acquittal is set aside as being without jurisdiction. There shall be no retrial in this case.