SARJOO PROSAD, C.J.— This is a reference made by Shri Chander Singh Meratia, Sessions Judge of Ganganagar, for quashing an order of conviction under sec. 110 of the Indian Railways Act, passed against the petitioner by the Railway Magistrate, First Class, Jodhpur, sentencing him to pay a fine of Rs. 20/- under the above section by his judgment dated 10th July, 1960.

2. The relevant facts giving rise to the reference are that on 7th February, 1960, at Railway Station Binabap while the train from Hanumangarh to Sadulpur was passing on that route the petitioner, who was travelling in a First Class compartment of the train with certain fellow passengers, started smoking in the compartment. His fellow passengers protested against his smoking but the petitioner persisted in his conduct, asserting that he would get them charged fox ticketless travelling. Shri Gauri Shankar, a police officer, made a complaint of the incident under sec.110 of the Indian Railways Act against the petitioner. On that complaint the Magistrate having taken cognisance of the offence proceeded to try and convict the petitioner as aforesaid. According to the case of the petitioner he pleaded that he stopped smoking when the fellow passengers raised objection. The learned Magistrate on the evidence of the prosecution witnesses accepted the case in the complaint that inspite of protest the petitioner continued to smoke and rejected his version to the contrary. Against this order the petitioner moved the learned Sessions Judge who has made this reference for quashing his conviction.

3. The order of reference is an unduly long order ; and a perusal thereof shows that the recommendation for quashing the conviction is based mainly on two grounds. The first ground is that the offence under sec. no of the Indian Railways Act was a non-cogn:sable offence; and, therefore, the Magistrate was not competent to take cognisance on the complaint made by the police officer in respect of any such offence and the irregularity, if any, could not be cured by sec. 537 of the Code of Criminal Procedure. The second ground taken by the learned Sessions Judge is that sec. no of the Railways Act did not apply to railway employees. It applied only to railway passengers. Having examined the matter carefully I am of opinion that none of the two grounds given by the learned Sessions Judge can be sustained.

4. Sec. 190 of the Code of Criminal Procedure provides that a competent Magistrate can take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police-officer;

(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.

In this case there was a report made by the Station House Officer who was a police officer about the commission of a non-cognizable offence. The Magistrate treated it as a complaint and took cognizance of the offence on the basis of that report. In the case of a complaint of course the Magistrate is required to examine the complainant on oath under sec. 200 of the Code. There is, however, a proviso to sec. 200 which says that—

"When the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties."

Even if it is held to be doubtful whether in this case the Station House Officer was acting in the discharge of his official duties in presenting the report in writing which may amount to a complaint, yet the omiss on to examine the officer can be at best regarded as an irregularity ; and if the Magistrate has proceeded to take cognizance and 10 try the accused, the conviction cannot be set aside merely because of this irregularity. Sec. 529 of the Code provides that if the Magistrate was competen

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