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PETITIONER: JAMUNA SINGH AND OTHERS

       Vs.

RESPONDENT: BHADAI SAH

DATE OF JUDGMENT: 04/10/1963

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS SINHA, BHUVNESHWAR P.(CJ) HIDAYATULLAH, M.

CITATION:  1964 AIR 1541            1964 SCR  (5)  37  CITATOR INFO :  RF         1972 SC2639  (35)  RF         1976 SC1672  (5)  RF         1977 SC2401  (12)  RF         1979 SC 777  (13)

ACT:      Criminal Trial--Cognizance of an offence on a  complaint, when   taken--Magistrate  proceeding  under  provisions   of Chapter   XVI   of   the   Code,   if   amount   to   taking cognizance--Appeal against acquittal by complainant under s. 417 (3)--Propriety of  Code Criminal Procedure, 1898 ( V  of 1898), ss. 190(1), 200-204 and 417(3).

HEADNOTE:     The  respondent  lodged  a  complaint  before  the  Sub- Divisional Magistrate alleging that the appellants assaulted him  with lathis and forcibly took away currency notes  from his  pocket.  After completing the examination under s.  200 of  the Code of Criminal Procedure, the Magistrate made  the following order "Examined the complaint on s.a.  The offence is  cognizable one.  To S.I. Baikunthpur for  instituting  a case and report by 12.12.56." Ultimately, a charge-sheet was submitted by the police and the appellants were committed to the court of sessions but the trial ended in acquittal.   On appeal  by  the respondent under s. 417(3) of  the  Code  of Criminal Procedure, the order of acquittal was set aside  by the  High Court and the appellants were convicted  under  s. 395  of the Penal Code and sentenced to two  years  rigorous imprisonment.   It  was  mainly  urged  on  behalf  of   the appellants that in this case no appeal lay to the High Court under s. 417(3) as the case against them was not  instituted on any complaint but on a police report.     Held:  (i) When on a petition of complaint  being  filed before  him  a Magistrate applies his  mind  for  proceeding under  the various provisions of Chapter XVI of the Code  of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however  he applies  his mind not for such purpose but for  purposes  of ordering  investigation under s. 156(3) or issues  a  search warrant for the purpose of investigation. he cannot be  said to have taken cognizance of any offence.

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   R.R. Chari v. State of U.P., [1951] S.C.R. 312 and Gopal Das v. State of Assam, A.I.R. 1961 S.C. 986, applied.     In  the present case, as it is clear from the very  fact that the Magistrate took action under s. 200 of the Code  of Criminal  Procedure,  that he had taken  cognizance  of  the offences  mentioned in the complaint, it was open to him  to order  investigation  only  under s. 202 and  not  under  s. 156(3)  of  the Code of Criminal Procedure.   Therefore,  it must be held that though the Magistrate used the words  "for instituting  a  case" in his order he  was  actually  taking action under s. 202 of the Code, that being the only section under which he was in law entitled to act. 38     Cognizance  having already been taken by the  Magistrate before  he made the order there was no scope  of  cognizance being  taken  afresh of the same offence  after  the  police officers’ report was received.  Thus the case was instituted on  complaint and not on the police report submitted  later. The  contention therefore that the appeal d d not lie  under s. 417(3) must be rejected.     (ii)  The order of the Magistrate asking the  police  to institute  a case and to send a report should  properly  and reasonably  be read as one made under s. 202 of the Code  of Criminal Procedure.  So the contention that he acted without jurisdiction  cannot be accepted. At most it might  be  said that in so far as he asked the police to institute a case he acted  irregularly, but there is no reason to think that  it has resulted in any failure of justice.

JUDGMENT:     CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal NO. 56 of 1960.     Appeal  by  special leave from the  judgment  and  order dated November 27,  1959 of the Patna High Court in Criminal Appeal No. 63 of 1957.  D.P. Singh, for the appellants.  K.K. Sinha, for the respondent.     October  4,  1963.   The  Judgment  of  the  Court   was delivered by     DAs  GUPTA J.-These seven appellants were tried  by  the Assistant Sessions Judge, Saran, on charges under s. 395  of the  Indian Penal Code and also under s. 323 of  the  Indian Penal Code but were acquitted by him of both the charges.     The prosecution case was that on November 15, 1956  when Bhadai  Sah,  a  businessman belonging  to  Teotith,  within police  station, Baikunthpur, was passing along the  village road  on  his way to purchase patua,  the  seven  appellants armed with lathis surrounded him and demanded that he should hand  over the monies he had with him.  Bhadai had  Rs.  250 with him but he refused to part with them.  Kesho Singh  one of  the appellants tried to take away forcibly the  currency notes from his pocket but Bhadai caught hold of his arm  and raised  an alarm.  On this all the appellants assaulted  him with  their lathis and as he fell injured Kesho  Singh  took away  the money from his pocket.  Bhadai thereupon  filed  a petition  of complaint in the Court of  the   Sub-Divisional Magistrate, Gopalgunj, on November 22, 1956. The 39 Magistrate after examining him on solemn affirmation made an order  asking the Sub-Inspector of police,  Baikunthpur,  to institute   a  case  and  report  by  December   12,   1956. Ultimately,  a charge-sheet was submitted by the Police  and the  accused  persons  were  committed  to  the’  Court   of

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Sessions.   The Sessions trial ended, as already stated,  in the acquittal of all the appellants.     Against  the  order of acquittal, Bhadai  Sah  filed  an appeal under s. 417(3) of the Code of Criminal Procedure  in the High Court of Judicature at Patna. On the Following  day two  learned Judges of the High Court made the order:   "The appeal  will be heard". The appeal then came up for  hearing before  two other learned Judges of the Court who  being  of opinion  that  the learned Sessions Judge had  rejected  the prosecution evidence "on unsound standards without any  real effort  to assess the credibility of the evidence" and  that the prosecution case was Fully established by the  evidence, set   aside  the  order  of  acquittal  and  convicted   the appellants  under  s.  395  of the  Indian  Penal  Code  and sentenced them to two years’ rigorous imprisonment.    Against  this order of the High Court the present  appeal has been filed by special leave of this Court.    The  main  contention urged in  support of the  appeal  is that  in this case no appeal  lay to the High Court  against an  order  of acquittal    under s. 417(3) of  the  Code  of Criminal  Procedure.      This  provision  in  s.  417   was introduced  in  the Code by the Amending Act XXVI  of  1955, giving  a  complainant a right of appeal  against  acquittal where  a case is instituted upon a complaint.   Before  this new legislation, only the State Government had the right  to appeal against an order of acquittal.  The result of the new provision  in sub-s. 3 is that if an order of  acquittal  is passed  by  any  court other than a High  Court  in  a  case instituted   upon  a  complaint,  the  High  Court   on   an application made to it by the complainant in this behalf may grant  special leave to appeal from the order  of  acquittal and on such leave being granted the complainant may  present such an appeal to the High Court.  It 40 is  to be noticed that this right is limited only  to  cases instituted upon a complaint.  On behalf of the appellants it is  argued that the case against them was not instituted  on any complaint but was instituted on a police report.     The  Code does not contain any definition of  the  words "institution of a case".  It is clear however and indeed not disputed,  that  a case can be said to be instituted   in  a court  only when the  court takes cognizance of the  offence alleged  therein.   Section 190(1) of the Code  of  Criminal Procedure contains the provision for cognizance of  offences by  Magistrates.  It provides for three ways in  which  such cognizance  can  be  taken.  The first  is  on  receiving  a complaint of facts which constitute such offence; the second is  on  a report in writing of such  facts--that  is,  facts constituting  the offence--made by any police  officer;  the third  is  upon information received from any  person  other than a police officer or upon the Magistrate’s own knowledge or suspicion that such offence has been committed.   Section 193  provides  for cognizance of offences   being  taken  by courts of sessions on commitment to it by a Magistrate  duly empowered   in  that  behalf.   Section  194  provides   for cognizance being taken. by the High Court of offences upon a commitment made to it in the manner provided in the Code.     An  examination of these provisions makes it clear  that when  a  Magistrate  takes cognizance  of  an  offence  upon receiving  a.  complaint  of  facts  which  constitute  such offence, a case is instituted in  the Magistrate’s Court and such a case is one instituted on a complaint.  Again, when a Magistrate takes cognizance of any offence upon a report  in writing  of such. facts made by any police officer it  is  a case  instituted  in  the Magistrate’s  court  on  a  police

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report.     To decide whether the case in which the appellants  were first acquitted and thereafter convicted was instituted on a complaint  or not, it is necessary to find out  whether  the Sub-Divisional  Magistrate,  Gopalgunj, in whose  Court  the case was instituted, took 41 cognizance  of the offences in question on the complaint  of Bhadai Sah filed in his Court 0n November 22, 1956 or on the report  of  the  Sub-Inspector  of  Police  dated  the  13th December,  1956.   It  is well settled now that  when  on  a petition  of complaint being filed before him  a  Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held  to have taken cognizance of the offences mentioned  in the  complaint.   When however he applies his mind  not  for such  purpose  but for purposes  of  ordering  investigation under  s.  156(3)  or  issues a  search  warrant   for   the purpose  of  investigation  he cannot be said to have  taken cognizance  of any offence. It was so held by this Court  in R.R.  Chari v. State of U. P.(1) and again in Gopal  Das  v. State of, Assam(2)     In  the  case  before  us  the Magistrate after  receipt of Bhadai  Sah’s  complaint  proceeded to examine him  under s.  200  of the Code of Criminal  Procedure.   That  section itself  states that the Magistrate taking cognizance  of  an offence on a complaint shall at once examine the complainant and  the  witnesses  present,  if  any,  upon  oath.    This examination  by the Magistrate under s. 200 of the  Code  of Criminal Procedure puts it beyond doubt that the  Magistrate did  take  cognizance  of  the  offences  mentioned  in  the complaint.  After completing such examination and  recording the  substance  of it to writing as required by s.  200  the Magistrate could have issued process at once under s. 204 of the  Code of Criminal Procedure or could have dismissed  the complaint  under s. 203 of the Code of  Criminal  Procedure. It  was  also  open to him, before taking  either  of  these courses, to take action under s. 202 of the Code of Criminal Procedure.    That  section  empowers  the   Magistrate   to "postpone the issue of process for compelling the attendance of  persons complained against, and either enquire into  the case  himself  or  if  he  is  a  Magistrate  other  than  a Magistrate  of  the  third  class,  direct  an  enquiry   or investigation to be made by any Magis (1) [1951] S.C.R. 312. (2) A.I.R (1961) S.C. 986. 42 trate subordinate to him, or by a police officer, or by such other   person  as  he  thinks  fit,  for  the  purpose   of ascertaining  the truth or falsehood of the  complaint."  If and when such investigation or inquiry is ordered the result of  the  investigation  or  inquiry has  to  be  taken  into consideration  before the Magistrate takes any action  under s. 203 of the Code of Criminal Procedure.     We find that in the case before us the Magistrate  after completing  the  examination  under s. 200 of  the  Code  of Criminal  Procedure and recording the substance of  it  made the order in these words :--                      "Examined  the complaint on  s.a.   The               offence is cognizable one.  To S.I. Bakunthpur               for   instituting   a  case  and   report   by               12.12.56."     If  the  learned  Magistrate had  used  the  words  "for investigation" instead of the words "for instituting a case" the  order  would clearly be under s. 202 01’  the  Code  of

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Criminal Procedure.  We do not think. that the fact that  he used   the  words  "for  instituting  a  case"   makes   any difference.   It has to be noticed that the  Magistrate  was not  bound to take cognizance of the offences on receipt  of the  complaint.  He could have, without  taking  cognizance, directed an investigation of the case by the police under s. 156(3)  of the Code of Criminal Procedure.  Once however  he took  cognizance he could order investigation by the  police only under s. 202 of the Code of Criminal Procedure and  not under s. 156(3) of the Code of Criminal Procedure.  As it is clear  here from the very fact that he took action under  s. 200  of  the Code of Criminal Procedure, that he  had  taken cognizance  of the offences mentioned in the  complaint,  it was open to him to order investigation only under s. 202  of the  Code of Criminal Procedure and not under s.  156(3)  of the Code.  It would be proper in these circumstances to hold that though the Magistrate used the words "for instituting a case"  in  this order of November 22, 1956 he  was  actually taking  action  under  s.  202  of  the  Code  of   Criminal Procedure, 43 that  being  the  only section under which  he  was  in  law entitled to act.     The  fact that the Sub-Inspector of Police  treated  the copy  of the petition of complaint as a first  in  formation report  and  submitted "charge-sheet"  against  the  accused persons  cannot  make any difference. In the  view  we  have taken of the order passed by the Magistrate on November  22, 1956,   the  report  made  by  the  police  officer   though purporting  to  be  a report under s. 173  of  the  Code  of Criminal  Procedure should be treated in law to be a  report only under s. 202 of the Code of Criminal Procedure.     Relying  on  the provisions in s. 190 of the  Code  that cognizance could be taken by the Magistrate on the report of the  police officer the learned counsel for  the  appellants argued  that when the Magistrate made the order on  November 22,  1956  his intention was that he would  take  cognizance only  after receipt of the report of the police officer  and that cognizance should be held to have been taken only after that report was actually received in the shape of a  charge- sheet  under s. 173 of the Code, after  December 13,   1956. The  insuperable  difficulty in the way  of  this  argument, however,  is  the  fact  that  the  Magistrate  had  already examined  the  complainant  under  s. 200  of  the  Code  of Criminal Procedure.  That examination proceeded on the basis that he had taken cognizance and in the face of this  action it  is not possible to say that cognizance had  not  already been  taken  when  he  made  the  order  "to  sub-Inspector, Baikunthpur, for instituting a case and report by 12.12.56."     Cognizance  having already been taken by the  Magistrate before  he made. the order there was no scope of  cognizance being  taken  afresh of the same offence  after  the  police officer’s  report  was received. There is thus   no   escape from  the conclusion that the case was instituted on  Bhadai Sah’s  complaint on November 22, 1956 and not on the  police report submitted later toy the Police Sub-Inspector, Baikun- 44 thpur.  The contention that  the appeal did not lie under s. 417(3)  of the Code of Criminal Procedure must therefore  be rejected.    The next contention raised on behalf of the appellants  is that  the High Court was not justified in  interfering  with the  order  of  acquittal passed by  the  learned  Assistant Sessions   Judge.   The  reasoning  on  which  the   learned Assistant  Sessions  Judge  rejected  the  evidence  of  the

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prosecution witnesses and the reasons for which the  learned Judges of the  High Court were of opinion that there was  no real  effort  by the learned’ Sessions Judge to  assess  the credibility   of the  evidence have  been placed before  us. It  is quite clear that the High Court examined  the  matter fully and carefully and on a  detailed consideration of  the evidence  came  to  the conclusion that  assessment  of  the evidence had resulted in a serious failure of justice.   The principles  laid down by this Court in a series of cases  as regards  interference  with orders of  acquittal  have  been correctly  followed  by the High Court.  There  is  nothing, therefore, that would justify us in reassessing the evidence for  ourselves.   As  relevant parts of  the  evidence  were however  placed before us, we think it proper to state  that on  a consideration of such evidence we are  satisfied  that the decision of the High Court is correct.    As  a last resort the learned counsel for the  appellants argued that the Magistrate had acted without jurisdiction in asking the police to institute a case and so the proceedings subsequent to that order were all void.  As we have  already pointed  out, the order of the Magistrate asking the  police to institute a case and to send a report should properly and reasonably  be read as one made under s. 202 of the Code  of Criminal  Procedure.   So,  the argument  that  the  learned Magistrate  acted without jurisdiction cannot  be  accepted. At  most  it  might be said that in so far  as  the  learned Magistrate  asked the police to institute a  case  he  acted irregularly.  There  is absolutely no  reason,  however,  to think 45 that irregularity has resulted in any failure justice.   The order  of conviction and sentence passed by the  High  Court cannot   be   reversed  or  altered  on  account   of   that irregularity.           In the result, the appeal is dismissed.                                            Appeal dismissed.