Judgment.- The question arising in this appeal by the State against acquittal, is whether a complaint forwarded by the Magistrate to the police for investigation and report under section 156 (3) of the Code of Criminal Procedure would continue to retain its character as a complaint even though the police after investigation had sent up final report charging the case. In the present instance complaint was filed under sections 341 and 323 read with section 34, Indian Penal Code, and that was forwarded by the Magistrate to the police under section 156 (3) of the Code. After the receipt of the final report of the police, the trial was proceeded with as if it were a case instituted on police report and on 26th May, 1965, to which date the case stood posted, nobody was present for the prosecution and so the accused was acquitted under section 247 of the Code. Section 247 can apply only to cases instituted on complaint. On behalf of the State, therefore, it is argued that the learned Magistrate has gone wrong in dismissing the complaint under section 247 treating it as a private complaint; the case having been taken cognisance of on the final report of the police it ought to have been treated as a police charge and not as a private complaint for purpose of section 247 of the Code. For the respondents (accused), on the other hand, it is argued that the case continues to be one instituted on complaint and the fact that a report of the police was called for under section 156 (3) of the Code will not deprive it of its character as a private complaint. The question is one not free from difficulty. The acquittal of the accused under section 247, in the circumstances brought out in this case, was possible only in a case instituted on complaint and the appeal from such an acquittal will have to be preferred by the complainant on Special Leave obtained under section 417 (3) of the Code. This will take us to the further question as to when could it be said that the Magistrate had taken cognisance of the offence. The expression ‘to take cognisance’ is not defined in the Code. It is, therefore, difficult to say at what precise stage the case is taken cognisance of by the Magistrate. This will take us to the further question as to when could it be said that the Magistrate had taken cognisance of the offence. The expression ‘to take cognisance’ is not defined in the Code. It is, therefore, difficult to say at what precise stage the case is taken cognisance of by the Magistrate. In some cases it has been held that taking cognisance does not involve any formal action; but occurs as soon as the Magistrate as such applies his mind to the offence complained of. Anyway, taking cognisance is a judicial act and when does the Magistrate first take judicial notice of an offence ? Is it correct to say that judicial notice is taken only when the complainant is examined on oath and not earlier when the complaint is forwarded for report without such examination? If exercise of the judicial mind by the Magistrate is to be the criterion, could it be said that examination of the complainant on oath is an indication that the Magistrate has exercised his judicial mind ? If so, why should the complaint be then sent to the police under section 202 of the Code for an enquiry. A distinction is see 1 drawn in some cases between calling for a report of the police under section 202 and the same under section 156 (3) of the Code for the purpose of determining the stage from which it could be said that the Court has taken cognisance of the case. Under the former, i.e., under section 202, the complaint is forwarded to the police after examining the complainant on oath under section 200; while under the latter i.e., under section 156 (3), the complaint is sent to the police the moment it is received in Court without any more formality. Rulings are to the effect that if the complaint is sent to the police under section 202 it would retain its character as a complaint even after a charge-sheet is filed by the police after investigation, while, on the other hand, if the police report is called for under section 156 (3), and the police reports the commission of a cognisable offence and a charge-sheet is accordingly filed, the case is one instituted on police report. This view is expressed in the decisions S.K. Osman Gani v. Baram deo Singh1 Huchappa v. Venkattaswamy2, Damodaran v. Sippi3. This view is expressed in the decisions S.K. Osman Gani v. Baram deo Singh1 Huchappa v. Venkattaswamy2, Damodaran v. Sippi3. The gist of these decisions is that: "a ‘case’ comes into being only when a Court takes cognisance and so long as no cognisance is taken by a Court, there being no case, no question of a case ‘instituted upon complaint’ arises." A Division Bench of the Allahabad High Court, on a consideration of these decisions has held in a recent case Badri Prasad Gupta v. Kripa Shanker4.- "Instituion of a case is an act of a suitor, while taking cognisance is an act of the Court. A case is instituted when a suitor brings it before a Court, but cognisance is taken of an offence by a Court when it decides to proceed with it. Thus while institution of a case is done by a suitor the taking cognisance is done by a Court. By instituting a case the suitor draws the attention of the Court to the offence and desires that the Court may take cognisance of it. In order to see, therefore, as to how a case has been instituted we have to look to the manner in which it has been brought before the Court by the suitor. In what circumstances how or when the Court takes cognisance of a case will be beside the point....... The Magistrate may take cognisance or he may not take cognisance on receiving a complaint or upon a police report, but the case is conceived as soon as a complaint is filed or a police report is made before him. If he does not take cognisance of the offence, then the case is, in either of these two cases, still-born. If ultimately the Magistrate does take cognisance of the offence, though the case starts from the stage at which cognisance is taken, it does not cease to be instituted upon complaint or upon a police report. Though it is born and it starts on the offence being taken cognisance of, it remains in the womb, as it were, prior to its being taken cognisance of, being conceived on the filing of the complaint or the submitting of the police report. So as soon as it is born by being taken cognisance of, it can safely be said to have been born as a result of the institution of the. So as soon as it is born by being taken cognisance of, it can safely be said to have been born as a result of the institution of the. complaint or of the submitting of the police report. Therefore, in a case where a person files a petition of complaint and upon the complaint the Magistrate orders the petition of complaint to be sent to the officer-in-charge of the police station for necessary action and as a result of the investigation by the police a charge-sheet comes into existence, it could be safely concluded that the case was instituted upon a complaint". The Magistrate may initiate action either on a complaint or on a police report and the gist of the above decision is that the case is " conceived " as soon as a complaint is filed or a police report is made and even if cognisance is taken by the Magistrate in the strict sense of the term only after the final report of the police, and the case proceeds only from that stage, it does not cease to be a case instituted on complaint. Perusing the analogy it must be held that, until the police report is received the case conceived by the filing of the complaint remains in the womb, and it is brought forth — either alive or still-born — after the receipt of the police report. When complaint is sent by the Magistrate to the police it must be presumed that such a step was resorted to by the Magistrate for a further assurance about the truth of the complaint. Putting it differently, the Magistrate is not prepared to proceed on the complaint alone; but thinks it necessary that a police report also should be obtained. The action of the Magistrate will not change the character of the complaint. In other words, the complaint originally filed will not, on that account, assume a different garb when the police report is received. The proceedings will continue to be proceedings instituted on complaint. I think the view expressed by the Division Bench of the Allahabad High Court quoted above reflects the correct position and I would like to fall in line with that reasoning. Applying the above principle to the present case, I hold that the case continues to be one instituted on complaint even after the receipt of the police report. I think the view expressed by the Division Bench of the Allahabad High Court quoted above reflects the correct position and I would like to fall in line with that reasoning. Applying the above principle to the present case, I hold that the case continues to be one instituted on complaint even after the receipt of the police report. The acquittal under section 247, Criminal Procedure Code, is therefore proper. On the date in question neither the complainant nor his Advocate was present and there was no application for adjournment also. Under section 247, acquittal would follow only if the Magistrate thinks that there is no reason to adjourn the case to a future date. Even in this Court the learned State Prosecutor was not able to say why the complainant was absent that day. I see, therefore, no reason to interfere with the order of acquittal. The order is hence confirmed and the appeal is dismissed. M.C.M. ----- Appeal dismissed.