The report of a police officer, whether in a non-cognizable or cognizable offence, does not amount to a complaint, and the challan of a cognizable offence is excluded from the definition of 'complaint.'

Grue—This case has been referred by the Additional Sessions Judge, Jubbulpore, for setting aside a conviction under S. 186, I.P.C. The grounds in support of the reference are, first, that there was no complaint for the institution of proceedings as required by S. 195, Criminal P.C.; and secondly, that no obstruction has been proved. The case was actually started on a police challan put up under S. 332, I.P.C. But the accused was charged under S. 186, I.P.C., convicted under that section and fined Rs. 25.

2. Now the definition of complaint in S. 4 (h), Criminal P.C., is as follows :

'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.

3. Under S. 190 (1) (b), as amended in 1923, cognisance of offences by Magistrates may be taken ''upon a report in writing of such facts made by any police officer.'' Cl. (b) formerly read ''upon a police report of such facts.'' These sections have given rise to conflicting opinions both previous and subsequent to the amendment, on the questions, first, whether S. 190(1)(b) includes a report of a non-cognizable offence, and, secondly, whether a report by a police officer of such an offence can come under the definition of a complaint. The amendment to S. 190(1)(b) seems now to make it clear that it includes a report of a non-cognizable case also. But views about the second proposition are still at variance. In Emperor v. Shivaswami Guruswami, 1927 AIR(Bom) 440 it is held that such report does amount to, or at least can be treated as a complaint in suitable cases. Those who take this view point out that although S. 190 (b) was amended, the wording of S. 4 (h) remains the same and therefore it should be confined to a report of a police officer as mentioned in S. 173, Criminal P. C, that is a report in a cognizable case only. Similarly, is Radhika Mohan Das v. Hamid Ali, 1927 AIR(Cal) 405, the two sections were distinguished and the report of an Excise sub-Inspector was held to be a police report only for the purposes of S. 190, Criminal P.C., and not of S. 4(h) Criminal P.C. That decision, however, turned on the effect of S. 74 (4), Excise Act which, says that such a report shall be deemed to be ''a police report only for the purpose of S. 190 of the Code and not of S. 4 (h).'' On the other hand in Lachmi Devi v. Emperor, 1931 AIR(Cal) 122 the view was expressed that the state of law has been materially altered both with regard to S. 190 (b) and with regard to the interpretation of ''complaint.'' This reasoning evidently assumes that the wording with regard to the report of a police officer in the two sections means the same thing. Similarly in Woodroffe's Criminal Procedure, p. 12, the learned author says:

A police report in a non-cognizable case was treated either as a complaint under S. 2, Cl. (h) or as a police report under S. 190 (1) (b). But now S. 190, Cl. (b) has been amended so as to include any report whether in cognizable or non-cognizable cases and therefore the term 'complaint' will exclude both.

4. It seems to me that, even though S. 4 (h) has not been amended, the words in it, as it stands, are sufficiently wide to include a report of a non-cognizable offence and that the meaning of the phrase in the two Ss. 190 and 4 (h), although the wording is different, amounts to the same thing. I am therefore inclined to the view which holds that the report of a police officer, whether in a non-cognizable or in a cognizable offence does not amount to a complaint. In the present case, however, I think that the reference should be upheld whichever of the two views is accepted. Clearly the challan of a cognizable offence is excluded from the definition of 'complaint' and what the police did was to put up such a challan under S. 332, I.P.C. The facts were similar in an unreported case decided by Mt. D