Research › Browse › Judgment

Kerala High Court · body

1952 DIGILAW 72 (KER)

Saramma Zachria v. State

1952-07-22

KOSHI

body1952
Judgment :- 1. This revision petition is directed against the decision of the Division First Class Magistrate of Chengannur in Criminal Appeal No. 6 of 1951 whereby the learned Magistrate confirmed the conviction and sentence which the Taluk Second Class Magistrate of Thiruvalla passed against the petitioner in C.C. No. 52 of 1950, for commission of an offence punishable under S.288, Travancore Penal Code (S.290 I.P.C.) The punishment awarded is a fine of Rs. Eight and in default to undergo simple imprisonment for seven days. 2. Of the two points raised in the revision I may at once state that there is absolutely no merit in the contention that the act attributed to the petitioner did not constitute an offence under S.288. That she used vulgar language against P.W. 4 in a public place and that it caused annoyance to the public have concurrently been found by the two courts below. Sitting in revision I cannot interfere with those findings. It is futile to argue that such conduct in a public place will not amount to public nuisance. 3. Nor is there any substance in the other point, namely that the Magistrate had no jurisdiction to take cognizance of a noncognizable offence like the offence under S.288 on a report by a Police Officer. Under S.186(1) of the Travancore Criminal Procedure Code (S.190(1) of Act V of 1898) any magistrate may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence or (b) upon a report in writing of such facts made by any police officer. Cl. (b) adopts the language of S.190(1)(b) of Act V of 1898 as amended in 1923. There is almost consensus of judicial opinion that after that amendment a criminal court could take cognizance of even a non cognizable offence upon a police report. See Sohini's Criminal Procedure Code (14th Edn.) p. 359 and B.B. Mitra's Commentaries (11th Edn.), Vol. 1, pp. 546 and 547. Further if a report to a Magistrate by the Police with respect to a non-cognizable offence could not be considered as a report within the meaning of S.186(1)(b) such report will constitute a complaint as that expression is defined in S.4(1)(d) (S.4(1)(h) of Act V of 1908). See I.L.R. 26 Bom. 150 (F.B.) A.I.R. 1924 Lah. 258, A.I.R. 1927 Bom. 440, A.I.R. 1932 Bom. 610 and 17 T.L.J. 816. 4. See I.L.R. 26 Bom. 150 (F.B.) A.I.R. 1924 Lah. 258, A.I.R. 1927 Bom. 440, A.I.R. 1932 Bom. 610 and 17 T.L.J. 816. 4. It is therefore clear that if not under S.186(1)(b) the Magistrate could have taken cognisance of the offence under S.186(1)(a). In fact after S.200, Criminal Procedure Code (Act V of 1898) was amended in 1923 by the addition of proviso (aa) the controversy whether a report by the police to a Magistrate regarding the commission of a non-cognizable offence would amount to a police report has ceased to have any practical importance. Proviso (aa) to S.200 corresponds to proviso (b) to S.198 of the Travancore Criminal Procedure Code, Act VIII of 1117 and it enacts that when the complaint is made in writing the Magistrate is not bound to examine the complainant on oath before entertaining it in any case in which the complaint has been made by a court or by a public servant acting or purporting to act in the discharge of his official duties. This aspect is referred to in the Full Bench decision in A.I.R. 1926 Mad. 865. That case laid down that by virtue of S.190(1)(b) and proviso (aa) to S.200 of the Criminal Procedure Code, the Magistrates mentioned in S.190 are entitled to take cognizance of even non-cognizable offence upon a report made in writing by a police officer without examining the office upon oath. The provision in S.186(2) (S.190(1)(c), Act V of 1908) that a Magistrate may also take cognizance of an offence upon information received from any person other than a police officer that such offence has been committed has a bearing on the true import of the antecedent provisions. It contemplates the possibility of information other than a formal report under S.171 (173) being received by a Magistrate from the police and shows that the legislature did not intend that the Magistrate though empowered to take cognizance on information from any other person must, when he receives information from a police officer upon a non-cognizable offence, hold his hand and decline to take cognizance. The proceeding in this case therefore really started under proper legal auspices. Dismissed.