Judgment :- 1. The first of these references is in C. C. No. 410 of 1971, the next in C. C. No. 951 of 1971 and the last in C. C. No. 126 of 1972, of the Sub Magistrate's Court, Neyyattinkara-II.C.C.No. 410 of 1971 is in respect of charges under S.279, I. P. C., C.C. No. 951 of 1971 for charges under S.434 read with S.34 IPC. and C.C, No. 126 of 1972 in respect of charges under S.447 and 379 IPC. read with S.34 IPC., C.C. No. 410 of 1971 came up for hearing before the Magistrals on 8-5-1972 and the Magistrate acquitted the accused as the complainant was absent, under S.247 Crl. PC. Similarly in C. C. No. 951 of 1971. the accused was acquitted under S.247 Cr.PC. on 30 171 and in C.C. No. 126 of 1972 the accused was acquitted under the same section on 27 51972. 2. The common ground raised before me in all these cases is that the acquittal of the accused under S.247 Cr. PC. when the charge is laid by the police is not correct on account of the absence of the complainant S.247 Cr. PC., it is contended, can be invoked only in cases when the proceedings are started on a complaint which is defined under S.4(1)(b) Cr. PC. The District Magistrate, Trivandrum made these references to this Court to set aside the acquittal orders as they are found to be illegal. 3. We have to examine each of these cases separately as they deal with different aspects on the question of fact as well as law. 4. Crl. Ref. No. 22 of 1972 I will take up for consideration the reference in C.C. No. 951 of 1971 first. The charge in that case was filed on 26 61971 on the basis of a police complaint against the accused for offence under S.434 read with S.34, IPC. The Magistrate stated that he gave three chances for the prosecution to furnish copies of the documents as required by S.173 Cr. P. C. but no documents had been given to the accused. On the date of the order, viz., 30101971 neither the complainant nor the Sub Inspector who instituted the complaint was present in court. But the accused were present. Under those circumstances the acquittal order was passed under S.247 Cr. P. C. The question is whether the order under S.247 Cr. On the date of the order, viz., 30101971 neither the complainant nor the Sub Inspector who instituted the complaint was present in court. But the accused were present. Under those circumstances the acquittal order was passed under S.247 Cr. P. C. The question is whether the order under S.247 Cr. P. C. is sustainable in the first instance. This section has been considered by a Division Bench of this Court in State of Kerala v. M. P. Ali (1964 KLT. 535) where it was found that a report of a police officer on a non-cognizable offence which was not authorised by a competent Magistrate to investigate would amount to a complaint under S.190 (1) (a) and the provisions of S.247 Cr. P. C. are therefore applicable to such a case. This conclusion was arrived at on a consideration of the various other decisions. It is evident that there exists a fundamental and clear distinction between cognizable and non-cognizable offences under the Criminal Procedure Code. The police will not arrest the person who commits a non-cognizable offence without a warrant from the Magistrate. They will not also investigate any such offence without an order from the Magistrate. So whenever they get any information as to the commission of a non-cognizable offence they might ask the informant such cases to approach the Magistrate. It is not incumbent upon the police in such cases to send a report to the Magistrate, but to say that the police officers are prohibited from making a complaint of the commission of a non-cognizable offence in their official capacity is not correct. Under certain special laws, the police officers ere bound to make complaints to the Magistrate even in anon-cognizable offence. If this line of argument is to be accepted, it can be said that a complaint filed by a Magistrate will come within the ambit of clause (a) of S.190(1) Cr. P.C. Clause (a) of S.190 (1) in relation to S.4 (1) (h) Cr. P. C. was considered by the Division Bench in the decision referred to above. If this line of argument is to be accepted, it can be said that a complaint filed by a Magistrate will come within the ambit of clause (a) of S.190(1) Cr. P.C. Clause (a) of S.190 (1) in relation to S.4 (1) (h) Cr. P. C. was considered by the Division Bench in the decision referred to above. The word "complaint" is defined is S.4 (1) (h) of the Criminal Procedure Code as follows: "complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer". In this regard, the observation in Emperor v. Shivaswami (AIR. 1927 Bombay 440) may be seen. It is stated therein that the amendment of clause (b) of S.190 (1) was intended "to cover a report made in a non-cognizable case, which a Police Officer has been authorised by a Magistrate to investigate". This Court therefore held as follows: "What was decided in those cases was that the 'police report' in S.190 (1) (b) and the report of a police officer in S.4 (1) (h) mean the same thing, i.e. the police report mentioned in S.173 a report sent by the police after an investigation under Chapter XIV of Criminal Procedure Code. This interpretation of the term'police report' naturally had its effect on the meaning attached to the term 'complaint' also. A complaint under S.4(1)(h) was taken to mean as excluding only a report of a police officer sent under S.173, ie. regarding a cognizable offence or a non-cognizable offence the investigation of which was authorised by a competent Magistrate. Now if we are to hold that under S.190 as it now stands a'complaint' will exclude even a report by the police on a non-cognizable offence they are not authorised to investigate by a Magistrate, the effect of it would be that what will amount to a complaint under S.4(1)(h) becomes a police report under S.190. Now if we are to hold that under S.190 as it now stands a'complaint' will exclude even a report by the police on a non-cognizable offence they are not authorised to investigate by a Magistrate, the effect of it would be that what will amount to a complaint under S.4(1)(h) becomes a police report under S.190. It appears to us that if the intention of the amendment to S.190 (1) (b) in 1923 were to bring within its purview every police report without exception, a corresponding change would have been made in S.4 (1) (h) also." In the light of the above decision of the Division Bench it has to be said that a report of a police officer in a non-cognizable offence which he was not authorised by a competent Magistrate to investigate would amount to a complaint under S.190 (1) (a). Accordingly the provisions of S.247 Cr. P. C. are applicable to such a case. The case on band is similar to the one which was the subject-matter of consideration in the above decision. The learned Magistrate was correct therefore in applying S.247 Cr. P. C. in acquitting the accused in C. C. No. 951 of 1971. There is no flaw in the order of acquittal. Crl. Reference No. 22 of 1972 is therefore rejected. 5. Crl. References Nos. 21 and 24 of 1972. In the other two references, the conclusion arrived at by the Sub Magistrate that the accused persons shall be acquitted is not correct. In these cases, the accused were not even present in court when the order was passed. The two cases were respectively posted to 8-5-1972 and 25-5-1972. The case covered by Crl. Ref. No. 24 of 1972 is a warrant case. There is a well defined procedure prescribed in the Code of Crl. Procedure for the trial of a warrant case. The acquittal under S.247 Cr. P. C. in that case is incompetent. The acquittal covered by these two references is also not correct as the charges are in respect of cognizable of fences. The learned Sub Magistrate did not also give valid reason for acquitting the accused. The acquittal, both on the ground of fact as well as of law, in these two cases have therefore to be set aside. Those two cases will be sent back to the Sub Magistrate for disposal in accordance with law. Criminal References Nos. The learned Sub Magistrate did not also give valid reason for acquitting the accused. The acquittal, both on the ground of fact as well as of law, in these two cases have therefore to be set aside. Those two cases will be sent back to the Sub Magistrate for disposal in accordance with law. Criminal References Nos. 21 and 24 of 1972 are accepted.