Applicability of the provisions of Section 247.

Anna Chandy, J.-

The question that arises for decision in this appeal is whether a person on trial for a non-cognizable offence can be acquitted under section 247 of the Criminal Procedure Code for the absence of the complainant if the case was charged by the police. The accused was charged with an offence under rule 56 (3) (b) of the Kerala Motor Vehicles Rules read with section 112 of the Motor Vehicles Act (a non-cognizable offence) and was tried by the1 Sub-Magistrate, Perinthalmanna who acquitted him under section 247 of the Criminal Procedure Code on the ground that neither the complainant (The Sub-Inspector of Police, Nattakal) nor his representative was present when the case was called for hearing.

The learned Public Prosecutor takes objection to this order mainly or the ground that section 247 cannot be made to apply to a case instituted by the police.

Section 247 of the Criminal Procedure Code reads thus:

“If the summons has been issued on complaint, and upon the day appointed for this 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.”

The section therefore applies only to cases where “summons has been issued on complaint.” To decide whether the present case is one such we will have to see under which provision of the Code the learned Magistrate took cognizance of the case. A Magistrate may take cognizance of a case in one of the three ways as provided in section 190 which reads thus:

“(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may 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.

(2)* * * * * *”

In the present case, though the Magistrate has proceeded as if the communication he received from the police was a ‘complaint’ and took cognizance under clause

(a) of the sub-section, the learned Prosecutor argues that since what the Magistrate received was a “ report in writing of such facts made by a Police Officer ” the Magistrate could have taken cognizance of it only under clause ( b). An impressive array of precedents have also been cited in support of this view. On the other hand the learned defence Counsel contends that report of the police officer referred to in clause (b) is the report sent by the police regarding cognizable offences and those they are authorised to investigate, but not to any communication sent by the police involving non-cognizable offences which they have no right to investigate or report. Authorities are not wanting which support this view also.

On the face of it, the wording of clause (b) seems to support the interpretation put on it by the learned Prosecutor. Giving the words ‘such facts’ in clause (b) its proper meaning, the provision would read that the Magistrate may take cognizance of an offence upon a report in writing of the facts which constitute such offence made by any Police Officer. This seems pretty well to cover the whole field of police reports. This interpretation gains additional support if we take the view that the amendment of the Criminal Procedure Code in 1923 by which clause

(b) which used to read “upon a police report of such facts” was changed to its present form, was to counter the effect of judicial decisions which had interpreted the words “upon a police report” referred only to reports submitted after an investigation under Chapter XIV of the Criminal Procedure Code, i.e., an investigation into a cognizable off