Decided on June 03,1968



- (1.) THE recent decision in State of Kerala v. Wilfred, 1968 Ker LT 57 by Sadasivan, j. , has been responsible for this revision petition.
(2.) THE petitioner filed a complaint before the magistrate and the magistrate sent the complaint under Section 156 (3) of the Code of Criminal Procedure to the police for investigation. After investigation the police laid a charge-sheet; and when the case came up for further trial, objection was taken that in view of the decision mentioned above, the Public Prosecutor should not conduct the prosecution and the petitioner, as complainant, must make his own arrangements for the prosecution of the case. This the magistrate has accepted; and the correctness of this decision is being challenged before me.
(3.) SADASIVAN J. refers to the Division Bench ruling of the Allahabad High Court in badri Prasad Gupta v. Kripa Shanker, AIR 1967 All, 468 and observes: "the Magistrate may initiate action either on a complaint or on a police report and the gist of the above decision is that the case is "conceived" as soon as a complaint is filed or a police report is made and even if cognizance is taken by the Magistrate in the strict sense of the term only after the final report of the Police, and the case proceeds only from that stage, it does not cease to be a case instituted on complaint. Pursuing the analogy further it must be held that until the police report is received the case conceived by the filing of the complaint remains in the womb, and it is brought forth -- either alive or still-born -- after the receipt of the police report. When a complaint is sent by the Magistrate to the police it must be presumed that such a step was resorted to by the magistrate for a further assurance about the truth of the complaint. Putting it differently, the Magistrate is not prepared to proceed on the complaint alone; but thinks it necessary that a police report also should be obtained. The action of the Magistrate will not change the character of the complaint. In other words, the complaint originally filed will not on that account, assume a different garb when the police report is received. The proceedings will continue to be proceedings instituted on complaint. " Sadasivan, J. , also refers to the decision of this Court in K. Damodaran V. V. K. Sippi, AIR 1960 Ker 389, wherein Raman Nayar, J. has held, in interpreting section 417 (3), Code of Criminal Procedure, that any case instituted upon complaint means 'any case of which the Court has taken cognizance upon complaint'. Raman Nayar, J. , has also held that 'complaint' does not include a police report.;

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