STATE OF KERALA Vs. SREEDHARAN

JUDGEMENT

(1.) THIS is an appeal filed by the State against the order of acquittal passed in a case started on a report made by the Preventive officer, Kunnathur range. For the non-appearance of the complainant on the date of hearing the learned Magistrate acquitted the accused under S. 247 Cr. P. C. The argument that is raised is that the case does not come within the operation of S. 247, for the reason that the case was not started on a complaint but on the report of the prohibition officer. It is only the report of a police officer which will not come within the meaning of the term'complaint ' under S. 4 (h) of the Criminal Procedure Code. The expression 'complaint' is comprehensive enough to include reports of public officers except those specifically excluded from its operation. The report of the prohibition officer, therefore, falls within the definition of S. 4 (h) of the Criminal Procedure code and consequently S. 247 Cr. P. C. , would apply. THIS view of mine is reinforced by a judgment of a Bench of the Calcutta High Court in Radhik Mohan Das v. Hamid Ali (ILR. 54 Cal. 371) and the case of the Andhra high Court in Public Prosecutor v. Shaik Dawood (1956-2 A. W. R. 642 ).

(2.) IT is next argued that the learned Magistrate ought to have dispensed with the attendance of the complainant and proceeded with the case as he is a public servant within the meaning of the proviso to S. 247. IT cannot be stated that the presence of this officer was not required. There is no allegation that there was any other witness present in court who could have been examined by the learned Magistrate. IT is also not obligatory on the magistrate to dispense with the attendance of the complainant suo mote and proceed with the case. The proviso no doubt gives a discretion to exempt the personal attendance of the complainant. Whether the Magistrate has exercised the discretion in a proper manner or in an arbitrary fashion would depend upon the facts of each case. In this case the learned State Prosecutor has not been able to satisfy me that the discretion has not been properly exercised. Why the Preventive Officer failed to appear on the date of hearing has not been mentioned even in the memorandum of criminal appeal. If a complaint is filed it is the duty of the Preventive Officer to have appeared in court on the date of hearing and if he fails to do so and the accused is acquitted he has only himself to blame. No grounds exist for interference with the order of acquittal. Appeal is dismissed. Dismissed.