STATE OF RAJASTHAN Vs. DURGA LAL

JUDGEMENT

(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 Sec. 182 IPC. The case was fixed on Aug. 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 Sec. 247 Cr. P. C. 1898 corresponding to Sec. 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 Vs. 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 Sec. 195 of the old code which is identical with Sec. 195 of the new code, somehow escaped notice by the Division Bench. This Sec. lays down, inter alia, that no Court shall take cognizance of any offence punishable under Sections 172 to 188 Penal Code 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 Sec. 182 Penal Code 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 :

(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 Vs. 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 Sec. 2 (r) "police report" means a report forwarded by a police officer to a Magistrate under sub-Sec. (2) of Sec. 173. A report under sub-Sec. (2) of Sec. 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 Sec. 182 Penal Code 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 Sec. 182 Penal Code cannot be considered as a police report within the meaning of Sec. 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 Vs. 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 Vs. State and others : AIR 1958 Raj, 89 In the above case it was held as under :