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Report No. 37

Appendix 3

Note on Section 4 - Definition of "Complaint"

According to the definition of "complaint", in section 4(h), a complaint does not include a report of a police officer. Now, the Code uses different expressions relating to reports of police officers, as follows:-

(i) 'Police report,'1

(ii) 'Report of a Police Officer,'2

(iii) 'Report in writing made by any police officer,'3

(iv) "report" simpliciter4

(Sometimes, the expression "information"5-6 or "intimation" is used also.)7

1. Sections 133(1), 145(1), 147, 157, 170, 173, 207, 207A, 208, 251 and 251A.

2. Sections 4(1)(h) and 114. See also sections 62, 157 and 168.

3. Section 190(1)(b).

4. Section 62 and section 174(1).

5. Section 153(2); see Bansidhar v. State, AIR 1959 Raj 191 (193), para. 8.

6. Section 250; see Muhammad Hashim v. Emp., AIR 1940 Sind 134 (135) (FB).

7. Section 174(1).

Certain questions have arisen as to the meaning of some of these expressions, with reference to section 4(1)(h), section 190(1)(b), and sections 207A and 251A, in relation to reports made under various sections of the Code or under other enactments. The questions are interlinked with each other.

(1) With reference to section 190(1)(b) which empowers the Magistrate concerned to take cognizance of an offence upon a "report in writing" of such facts of any police officer), the main question that is to be considered is, whether, a report made by the police in a non-cognizable case investigated without obtaining the orders of a Magistrate as is required by section 155(2) does or does not fall under clause (b) of section 190(1).

Before the amendment of 1923, the wording in section 190(1)(b) was "upon a police report of such facts". On these words, the question arose whether a communication by a police officer in respect of an offence which is non-cognizable, made of his own motion, fell under clause (b). The leading case answering the question in the negative was a Bombay one.1

1. K.E. v. Sada, (1902) ILR 26 Bom 150 (FB).

In one Patna case,1 before the 1923 amendment, it was stated that the police report mentioned in section 190(1)(b) is a police report under section 173, i.e., a report in course of the investigation of a cognizable offence.

1. Ram Lal v. Emp., AIR 1920 Pat 614 (Das J.).

In another Patna case,1 the failure to examine a complainant on oath was regarded as fatal. In yet another Patna case,2 section 24 of the Police Act3 whereunder it shall be lawful for any police officer to lay any information "before a Magistrate and to apply for a summons, warrant against any person committing an offence" was considered. An application of the Sub-Inspector of Police to the Magistrate stating that a riot had taken place for the benefit of certain persons who claimed interest in the subject-matter of the dispute, it seems, had led to the issue of a summons against those persons under section 155, I.P.C. (liability of a person for whose benefit riot is committed).

The complainant was not examined on oath, and the question arose under which clause of section 190 the cognizance has been taken. It was held, that while a complaint by a private person comes under clause (a), and information by a private party comes under clause (c), a report to a magistrate by the police comes under clause (b). The only limitation laid upon the report is, that it must state facts which constitute an offence.

1. Mangu v. Emp., AIR 1920 Pat 670 (Das J.) (Case-law discussed).

2. Abdul Ali v. Emp., AIR 1920 Pat 700 (702) (Jwala Prasad J.) (Case-law reviewed) (relied on section 24, Police Act).

3. Section 24, Police Act, 1861 (5 of 1861).

Now, when a police officer acts under section 24 of the Police Act and submits his information regarding the commission of the offence to the Magistrate and applies for action to be taken thereon, it becomes a "report" of that officer within section 190(1)(b), as the definition of complaint does not say that the report must be a report under Chapter 14 or report only of a cognizable offence. The decision in Ram Lal v. Emp., AIR 1920 Pat 614 (Das J.). was dissented from.

In a Lahore case,1 decided before the 1923 Amendment a challan was sent up by the police in an offence for which rule 25(2) of the Defence of India Rules, 1915 required a complaint. The challan was regarded as a complaint by the High Court. (The Punjab Government had empowered all District Magistrates to order or authorise complaints for the offence in question, and accordingly, the District Magistrate had directed the Superintendent of Police to make an "inquiry", complete the case and send it up for trial, and in due course the police put up a 'challan' before the District Magistrate). It was held, that this was a "complaint", following the Bombay case.2

The history of section 190(1)(b) (upto 1898) was thus traced in a Bombay case,3 where a police constable had filed a complaint for a non-cognizable offence.4

1. Khushall Singh v. Emp., AIR 1921 Lah 345.

2. K.E. v. Sada, 1902 ILR 26 Bom 150 (FB).

3. K.E. v. Sada, 1902 ILR 26 Bom 150 (156, 157).

4. Offence under section 61(j), Bombay District Police Act, 1890 (4 of 1890) (obeying a call of nature in a street).

"Under Act 10 of 1872, section 140, a Magistrate might take cognizance of an alleged offence:-

(a) upon a police-report under Chapter 10 (powers of the police to investigate, answering to Chapter 14 of the present Code);

(b) upon information or report by a Police officer as to non-cognizable offence: such information or report was to be regarded as a complaint;

(c) upon complaint;

(d) upon suspicion;

and under Chapter 16 the Magistrate might in a summons case dismiss the complaint as frivolous or vexatious and award compensation.

"There was no definition of "complaint", but it is clear that whether a police officer made a formal complaint or a report of a non-cognizable summons case, his report was to be regarded as a complaint which could be dismissed as frivolous or vexatious, compensation being awarded. The Code of 1882 did away with the "report of a Police officer in a non-cognizable case, except by the order of a Magistrate. Under the Code of 1882, as also under the present Code, in the case of a non-cognizable offence the informant is referred to a Magistrate.

There is no section empowering a Police officer to make a report in such a case without the orders of a Magistrate. If there is no informant, and the Police officer has himself seen the alleged offence being committed, there is no obstacle to his making a complaint in the court of law, and asking for the issue of process. But there is no provision by which he can in such a case make a police report, and it has become necessary since 1882 to exclude from the definition of "complaint" the report of a police officer. There is an intimate connection between-

(a) "the report of a Police officer" which is by section 4(1)(h) of the Code excluded from the definition of "complaint";

(b) the report of a cognizable offence, which a police officer is to send to a Magistrate empowered to take cognizance of such offence upon a Police report (sections 157, 173); and

(c) the cognizance of any offence, which a Magistrate may take upon a police report of the same (section 190(1)(b)).

"If the alleged offence is a non-cognizable one, there is no section in the Code which empowers a police officer of his own motion to make any report to a Magistrate; and therefore there is no ground for holding that when he does file a formal complaint he is, in fact, making a report, and so what purports to be complaint is by the definition not a complaint at all."

It would be desirable to state the reasons for the 1923 Amendment. The Amendment Bill of 1914 proposed a change in section 190(1)(b), and then gave the reasons for the change as follows:1

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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