The simple facts giving rise to this Cr. Revision are that on 17-7-1966, a case under section 380, P. P.
C. Was registered at Qila Gujar Singh Police Station against two persons, Tajammal Nasir and Muhammad Bashir, at the instance of Muhammad Younas petitioner, who lodged report Exh. P. A.
Alleging theft of some articles of furniture such as chairs, tables, planks etc, The case was investigated by Muhammad Shah A. S. I. Of that Police Station who came to the conclusion that the allegations were false and were made with a view to avoid payment of a sum of Rs. 1,780, which was due from the petitioner to the persons accused by him. As a result of his finding, the Investigating Officer drew up complaint Exh. P. O. Against the petitioner under section 182, P. I'. C. As envisaged by section 195 of the Cr. P. C, the offence being non-cognizable. The petitioner was tried by Ch. Muhammad Salim M. I. C. Lahore and the trial lasted in his conviction with an award of fine of Rs. 400 or one month S. I. In default of payment thereof. The petitioner did not fair any better before the Additional Sessions Judge who upheld his conviction and sentence. Feeling aggrieved, he has preferred the present Cr. Revision.
2. The petition was admitted by me to examine the legal contention whether the complaint filed by the Police Officer was liable to be dismissed on account of his absence on some of the dates of hearing as envisaged by section 247, Cr. P. C. There being no order on the record to show that his attendance had been dispensed with by the learned trial Magistrate. In response to a notice issued by me, the learned Assistant Advocate-General has in all fairness placed a large number of authorities for and against the proposition after having conducted a good deal of research in the matter. These authorities refer to police reports in respect of non-cognizable cases to which category the present case also belongs. In State v. R. V. Mahmood Ghasi Musalman and another (A I R 1962 Raj. 1), Devi Singh and another v. Shiv Ram Singh (AIR 1960 Raj. 150) and State of Madhaya Pradesh v. Abdul Kadir Khan (AIR 1963 Madh. Prad. 125), the view taken was that a police report in a non-cognizable case was not to be treated as a complaint and as such provisions of section 247, Cr. P. C., warranting dismissal of the case on account of the absence of the reporting police officer would not be attracted. A contrary view has, however, been expressed in Public Prosecutor v. A. V.
Ramiah (AIR 1958 Andh. Prad. 39) and Jai Prakash v. State (AIR 1961 All. 377) wherein such police reports have been treated as complaints, and the provisions of section 247 have been deemed to be attractable, warranting dismissal of the complaint on account of the absence of the police officer. In Chiragh Din v. Emperor (AIR 1925 Lah. 258) and Emperor v. Ghulam Hussain (AIR 1925 Lah. 237) a police report under section 182 was treated as a complaint although the question of the applicability of section 247 was not specifically raised in these cases. Nontheless, the presumption would be so attracted.
3. Notwithstanding the divergence of views on the question whether a police report in regard to a non-cognizable offence does or does not amount to a complaint so as to attract the applicability of section 247, Cr. P. C. The learned Assistant Advocate-General has contended that assuming that section 247 was attracted, and the presence of the police officer as com--plainant in the case was essential on each and every date of hearing, the omission or irregularity if any stood fully cured by section 537, Cr. P. C. As amended which cures inter alia any defect in trial, particularly when the police officer did not only appear, as a witness but had also been cross-examined by the petitioner along with other prosecution witnesses deposing against him. It is argued that since the omission or irregularity does not go to the root of the matter and no prejudice whatever has been caused to the petitioner, the defect in the trial, if any, may be deemed to have been fully cured under section 537, Cr. P. C. Reliance is placed on Abdus Subhan and others v. The State (1968 P Cr. L J 263).
4. As against this learned counsel for the petitioner has drawn my attention to the expression `Complaint' as used in section 195, Cr. P. C. Which inter alia covers a police report for initiation of proceedings under section 182, P. P. C. It is argued that the use of the word "Complaint" leaves one in no manner of doubt that a police report has to be treated as a "Complaint" and that section 247 would be fully attracted so as to make the presence of the reporting police officer essential on each and every date of hearing except on pain of the dismissal of the complaint. While trying to elaborate this argument, learned counsel has also drawn my attention to the provision contained in section 200 (a.a) introduced by way of amendment in the year 1923 dispensing with the examination of the reporting police officer as a complaint. Reliance is particularly placed on Arjandas Tulsidas v. G. K. Bhagat (AIR 1954 Ajm. 31), which is stated to be on all fours with the present case. It is further argued that the irregularity is not curable by section 537, Cr. P. C., .As amended. It is contended that the amendment does not materially alter the scope of the original section and is confined only to the addition of a few words. It is further elaborated that it is not a case of error, omission or irregularity pertaining to the mode of trial but is something which goes to the root of the matter having adversely affected the fundamental right of an accused person who would be otherwise entitled to acquittal on the basis of the applicability of section 247, Cr. P. C.
5. In reply to the last contention raises by the learned counsel for the petitioner, learned Assistant Advocate-General contends that the change introduced by the insertion of clause (b) to section 537, as amended, makes a radical change so as to make curable any error, omission or irregularity including the one relating to the mode of trial and as such the error or omission if any stood cured in the instant case.
The divergence of views on the question as to whether a report by a Police officer winder section 182, P. P. C. Is or is no: to be treated as `Complaint' so as to warrant its dismissal on account of the non-appearance of the complainant as envisaged b\ section 247, Cr. P C., except of course when his attendance has been dispensed with by a Magistrate, has inevitably arisen owing to what appears to be a complied the definition of the expression `complaint' as given in section 4(1)(h) of the Cr. P. C., the language of section 195, subsection (1)(A) of the Cr. P. C. And the terms in which section 247 ibid has been couched. The expression `complaint' has been donned in section 4(1)(h) has follows:- "Section 4(1)(h)-`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."
6. Obviously in view of the above definition `complaint' as used in the Cr. P. C. Would not cover the report of a Police Officer which has been specifically excluded from its purview. Section 195 (1)(a), Cr. P. C. Reads as follows:- "S. 195(1)(a).----No Court shall take cognizance of any offence punishable under sections 172 to 188 of the P. P. C. Except on the complaint in writing of public servant concerned, or of some other public servant to whom he is subordinate."
It cannot be denied that a police officer is a public servant in terms of the definition contained in section 21 of the P. N. C. The procedure as laid down in this provision for taking cognizance of offences under sections 172 to 188, P. P. C. Is that the public servant concerned .Who in the instant case is a police officer has to make a complaint in writing under section 182: It would' thus be clear that while on the one hand the definition of the expression `complaint' has expressly excluded a police report, it has on the other specifically referred to a police report under section 182 for initiation of criminal 'proceedings as d complaint. One possible interpretation, as `held in some authorities, would be that since the expression public servant as used in section 195(1)(a), Cr. P. C. Is much more comprehensive referring to various categories of officers including a police officer whose report has been excepted from the definition of complaint, all police reports initiating criminal proceedings under sections 172 to 188 though referred to as `complaint' in this section would be out of the purview of section 247, Cr. P C. But as stated earlier there is no unanimity of judicial authorities on this and we have also rulings in support of the contrary view. In this context a reference to section 190, Cr. P. C. Would not, however be out of place which lays down three different modes or methods whereby a Magistrate can take cognizance of any offence, namely,
(a) upon receiving a complaint of facts which constitute such offence,
(b) upon a report in writing of such facts made by any police officer,
(c) upon information received from any person other than a police officer or upon his own knowledge or suspicion, that such offence has been committed.
Since part (a) does not create any exception against a complaint by a police officer and the expression report by a police officer as used in part (b) refers only to cognizable offences it could perhaps be argued that a police report excepted from the definition of complaint is the one relating only to a cognizable offence and does' not cover a complaint lodged by a police officer under section 182, Cr. P. C. Which otherwise could also be described as a report. This view finds support from Emperor v. Ghulam Muhammad (AIR 1925 Lah. 237), a D. B. Authority by Shadi Lal, C. J.
And L. E. Rossignol, J. A contrary view was, however, expressed in Public Prosecutor v: Ratnavelachetty (AIR 1926 Mad. 865), which was a Full Bench authority. It was held that a report of a police officer mentioned in section 190 (1)(b), Cr. C. P. Was not confined to a report of a cognizable offence but also included police report in a non-cognizable case.
7. Notwithstanding this, however, for the purposes of the determination of the issue before me, neither the resolution of the controversy nor the expression of a choice or preference for one of the conflicting views is essential. If, it is assumed that section 247, Cr. P. C. Is not applicable to a police report under section 182 there would be no objection to the procedure adopted by the trial Court which is taken only on the basis of the contrary view. Assuming that a police report for initiation of criminal proceedings under section 18 2 was to be treated as a complaint, so as to render compulsory personal attendance of the complainant on each date of hearing, except on pain of dismissal of the complaint where the attendance has not been excused, I am clearly of the view that the irregularity, if any, is curable by section 537, Cr. P. C. (West Pakistan Amendment Act of 1964), whereby the following new clause (b) was inserted:- Section 537:- "Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-
(a) ------------------------------------
(b) of any error, omission or irregularity in the charge or mode of trial including any mis-joinder of charges; or
(c) ------------------------------------..
8. Obviously the objection raised in the present petition relates to the mode of trial which has been made curable under the new clause (b), as such it would radical change in the scope of curability or errors omissions or irregularities which has been considerably enlarged as a result thereof. It is well settled that if the alleged error, omission or irregularity as the case may be, has not resulted in any prejudice to an accused person in his defence it is deemed to have been cured under section 537 as amended. As stated earlier I am clearly of the view that no such prejudice has been caused to the petitioner on account of the absence of the complainant police officer in this case. Con-- sequently the irregularity if any, stood fully cured.
9. As a result of the above discussion, the petition fails and is hereby dismissed.