N. M. Kasliwal Ali, J. - (1.) The brief facts leading to this case arc that S. H. O., Police Station, Jhalra-patan District Jhalawar, filed a complaint against Durga Lal under Section 182 IPC. The case was fixed on August 1, 1974 for the recording the evidence of the complainant and his witnesses. On the aforesaid date the complainant did not appear but the accused was present. The learned Magistrate in the purported exercise of his powers under Section 247 Cr. P. C. 1898 corresponding to Section 256 Cr. P. C. 1973 passed an order acquitting the accused Durga Lal. The State aggrieved I against the order of acquittal filed an appeal before this Court. Sidhu J. held that a Division Bench of this Court in State of Rajasthan v. Iqbal Hussain : ILR (1963) 13 Raj. 164 failed to notice the provisions of See. 195 of the old code and as such the case required reconsideration by a larger Bench. Sidhu J. took the view that Section 195 of the old code which is identical with Section 195 of the new code, somehow escaped notice by the Division Bench. This Section lays down, inter alia, that no Court shall take cognizance of any offence punishable under Sections 172 to 188 IPC except "on the complaint in writing of the public servant concerned". In other words, the learned Magistrate could not have possibly taken cognizance of the offence punishable under Section 182 IPC except on the complaint in writing of the S. H. O. Police Station Jhalra-patan. The law did not permit him to take cognizance of this offence on a police' report. The learned single Judge further held as 1 under : "Now, if the learned Magistrate was not legally competent to take cognizance of the offence punishable under Section 182 Indian Penal Code, on a police report, and if he himself says that he has taken cognizance of the said offence, on a complaint, as distinguished from a police report it would not be correct for any court to say that the Magistrate must, nevertheless, be deemed to have taken cognizance on a police report. On the contrary, it may be legitimately presumed that the learned Magistrate exercised only such power as was vested in him by law. The only manner in which the learned Magistrate could have taken cognizance of this offence was on a complaint in writing of the Station House Officer concerned. Such a complaint in writing was submitted by the Station House Officer of Police Station, Jhalra-patan. The Magistrate had no power to treat this complaint as a police report. By the same token, this court is also incompetent to read into this complaint the elements of a police report merely because the person making the complaint happens to be a police officer. In my opinion, the learned Magistrate rightly treated this document to be a complaint and correctly took cognizance of the offence punishable under Section 182 IPC on the basis of this complaint. As already stated, this was the only followed it. In this view of the matter, he was within his power to acquit the accused for non-appearance of the complainant on the date fixed for hearing in the case."
(2.) We are perfectly in agreement with the view taken by Sidhu J as mentioned above and we hold that the view taken by Division Bench in State of Rajasthan v. Iqbal Hussain (Supra) does not lay down the correct law and as such we over-rule the same.
(3.) In order to further reinforce the view taken by Sidhu J., it may be observed that under Section 2 (r) "police report" means a report forwarded by a police officer to a Magistrate under sub-Sec. (2) of Section 173. A report under sub-Sec. (2) of Section 173 is forwarded by the officer in charge of the police station after completing the investigation done under Chapter XII of the code. Font offence under Section 182 IPC no investigation is done by the police officer under Chapter XII of the Code. In view of these circumstances the complaint filed by that Station House Officer under Section 182 IPC cannot be considered as a police report within the meaning of Section 2(r) of the Code. In this view' of the matter also w uphold the view taken by Sidhu J. and hold that the law laid down by the Division bench in State of Rajasthan v. Iqbal Hussain (supra) does not lay down the correct law. We further find support in our view from a decision of Division Bench of this Court in (Sindhi) Nathuram Atmaram v. State and others : AIR 1958 Raj, 89 In the above case it was held as under : "When the words "complaint in writing" appear in section 195 (1) (a), they refer to a formal complaint as defined in section 4(1) (h). It will not be correct to say that the words "complaint in writing" appearing in Section 195 (1) (a) do not refer to a complaint as defined in Section 4 (1) (h) of the f Criminal P. C. and what they really meant is that the proceedings culminating in a complaint or challan before the court should have been started k the instance of the public servant concerned or of his superior. A police officer can certainly make a complaint in the court if he is obstructed in tie execution of his duties.";