JUDGMENT :- This is an appeal on behalf of the State under Section 417 of the Code of Criminal Procedure, against order of acquittal dated 3rd October, 1968, passed by the learned Magistrate, Mapusa, (hereafter referred to as "the Code").

2. The respondents in this case were challaned for an offence under Section 13 of the Public Gambling Act, 1867. The offence under that section is cognizable and was tried, as a summons case, summarily, by the learned Magistrate in accordance with the scheme of Chapter XXII of the Code. The respondents were served with summons and they remained present on the day the case was called for hearing. There were some hearings when the complainant Pandurang Naik, Sub-Inspector of Police, and some prosecution witnesses were present but on 3rd October, 1968, the said complainant remained absent when the learned Magistrate passed judgment directing acquittal of the respondents. This action he seems to have taken under Section 247 of the Code. The State felt aggrieved by this judgment and moved this Court in appeal.

3. Shri Gama, learned Public Prosecutor representing the State, argues that the learned Magistrate was wrong in acquitting the respondents for the simple reason that in this case there was no complaint by the Police but a regular charge-sheet was submitted and, therefore, the provisions of Section 247 of the Code are not attracted. In support of this argument he invites my attention to the definition of "complaint" in S. 4 (1) (h) of the Code of Criminal Procedure. Under that definition "complaint" means the allegation made 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 some offence, but it does not include the report of a police officer. Section 247 enables the Magistrate to acquit the accused when complainant remains absent; it provides that 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.

As will appear from this section, the learned Magistrate had discretion to adjourn the hearing of the case to some other day in absence of the complainant but he did not exercise that discretion. The opening words in this section "If the summons has been issued on complaint" are important, and if this requirement of law is not satisfied then this section clearly would be inapplicable. Shri Gama states that the charge-sheet submitted by the Police cannot be regarded as a complaint within the meaning of section 4 (1) (h) of the Code. In support of this submission he cites 'Devi Singh v. Shiv Ram Singh' AIR 1960 Raj 150 (151), 'Radhey Sham v. Chief Commr., Ajmer' AIR 1956 Ajmer 24, 'State of Rajasthan v. Shiv Singh, (sic) AIR 1962 Raj 1 and 'State v. John Joseph D'Souza, AIR 1956 Bom 606. In Devi Singh's case, AIR 1960 Raj 150 the learned Sessions Judge stated that the offences alleged against the accused are not cognizable offences and, therefore, the charge-sheet submitted by the Police should be treated as a complaint and not a Police report. As will appear from the head-note of this case, the learned Single Judge of the Rajasthan High Court observed that it is necessary for the application of S. 247 that the Magistrate should have taken cognizance of the case on a complaint and not on a Police Report.

There are a number of offences which are cognizable and which are still triable as summons cases. If a Police report is made in such cases the provisions of Section 247 would not be attracted. It was also observed that it cannot be said that police can make a report only in a cognizable case and that a police report made in a non-cognizable case should only be treated as a com

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