Section 247, Cr. P. C. , is not applicable to cases where the Magistrate has taken cognizance on a Police report.

D. S. DAVE, J.

( 1 ) THIS reference comes on the report of the learned Sessions Judge, Bharatpur, dated 28-11-1958.

( 2 ) THE facts giving rise to it are that the District Superintendent of Police, Bharatpur, issued a warrant on 22-3-1958, under Section 5 of the Rajasthan Public Gambling Ordinance, 1949 (No. 48 of 1949 ). It was stated in the warrant that the Superintendent of Police had received credible information and that he was led to believe that the house of one Hira Sunar situated near Dal Bazar, Bharatpur, was used as a common gaming house. He, therefore, authorized Shri Shiv Ram Singh, Station House Officer, Bharatpur, to search the said house and to take into custody persons, who may be found therein, whether actually gaming or not, and also to seize the instruments of gaming, money, etc. The prosecution story is that on the basis of this warrant Shri Shiv Ram Singh raided Hira Sunars house and thereafter the two accused Devisingh and Hukma were prosecuted in the Court of the City Magistrate, Bharatpur, for offences under Sections 3 and 4 of the Rajasthan Public Gambling Ordinance, 1949, (No. 48 of 1949), which will hereinafter be referred to as the Ordinance. On 3-7-1958, two witnesses were examined on behalf of the prosecution and then the case was adjourned to 10-7-1958, for the statement of Shri Shiv Ram Singh. On JO-7-1958, when Shiv Ram Singh appeared in the Court, an objection was raised on behalf of the accused that he could not be examined, since he was a complainant he should have been the first to be examined and his two witnesses were already examined in the Court. This objection was decided by the trial Court on 18-8-1958, in favour of the accused. Another objection, which was raised on behalf of the accused, was that since Shri Shiv Ram Singh had failed to make personal appearance on an earlier date, the accused should be acquitted under Section 247, Cr. P. C. This objection was turned down by the Magistrate with the remark that it was not necessary for Shiv Ram Singh to be present on every date and his personal appearance was dispensed with by the Court. Aggrieved by this order, the accused filed a revision application in the Court of the learned Sessions Judge. The learned Sessions Judge has reported that the Magistrates order dated 18-8-1958, dispensing with the personal attendance of Shri Shiv Ram Singh was wrong, that if he wanted to dispense with his personal appearance, it ought to have been done earlier and since Shri Shiv Ram Singh was absent on earlier dates, the order of the City Magistrate dated 18-8-1958, should be set aside and he should be directed to pass an order in accordance with law.

( 3 ) NOBODY appears on behalf of the accused to support the reference. Learned Assistant Government Advocate has opposed the reference.

( 4 ) I have gone through the record of the trial Court and also given due consideration to the reasons given by the learned Sessions Judge in his report. The learned Sessions Judge has observed that the offences alleged against the accused are not cognizable of-lences and therefore the charge sheet submitted by, the Police should be treated as a complaint and not AS a Police report. Both the learned Sessions Judge and the trial Court seem to be under the impression that this was a case covered by Section 247 of the Criminal Procedure Code.

( 5 ) IT may be observed that the word complaint has been defined under Section 4 (h), Cr. P. C. , and according to that definition, it means

"an 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 an offence, but it does not include the report of a Police officer. "

It is quite clear from this definition that a report of the Police officer is not included within the meaning of the term complaint. In the present case, the Magistrate has taken cognizance on a report made by a Police officer and therefore it cannot be