N B DEVARAJ Vs. V N WILT

JUDGEMENT

(1.) THIS revision case has been filed by the accused in C. C. 1756 of 1963 on the file of the Additional First Class Magistrate, Coonoor. One Wilt filed a complaint against them for offences punishable under Ss. 341, 451 and 454 I. P. C. The learned additional First Class Magistrate, Coonoor, before whom the complaint w filed, sent it for investigation to the police who referred the case as one of a civil nature. Thereupon Wilt filed a protest Memo before the Additional First Class Magistrate, coonoor, who directed him to fill it in a complaint form. After this was done, the complaint was taken on file and proceeded with by the learned first Class magistrate, who however found no sufficient ground for proceeding further in the matter and dismissed the complaint under S. 203 Cr. P. C. Simultaneously, he is said to have lodged the previous complaint already referred by the police. When, however, the dismissal order was taken in revision before the Sessions Judge of coimbatore, he set aside not only the order of the learned Magistrate dismissing the second complaint, but also his order lodging the first complaint and directed the District Magistrate by himself or by any other magistrate subordinate to him to make further enquiry into the complaint dated 23-11-1963, and dispose of it in accordance with law. It is the validity of this order of the learned Sessions Judge that is questioned before me.

(2.) THE learned Sessions Judge appears to be under the impression that where the magistrate takes cognizance of an offence on a complaint made to him and considers, before issue of process to be accused, that the matter should be investigated, he should order such investigation only under the provisions of S. 202 Cr. P. C. and cannot order it under S. 156 (3) of the Code. He seeks support for this position from a ruling of the Calcutta High Court in Bissen Singh v. Prameswari Singh, In Gopaldas v. State of Assam, AIR 1961 sc 986 the Supreme Court has held that the provisions of S. 190 Cr. P. C. do not mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence and that a complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under S. 156 (3) to the police for investigation. As pointed out by the Supreme Court, there is no reason why the time of the magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so, then he would have to proceed in the manner provided by Ch. XVI of the Code. But when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind e. g. , ordering investigation under Section 156 (3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.

(3.) NOW, the position in the case before me seems to be this. After the police referred the first complaint of Wilt as of civil nature, he filed a protest petition which was converted into a complaint and proceeded with by the Magistrate. The magistrate taking cognizance of such complaint is entitled to deal with it under S. 202 Cr. P. C. which specifically lays down that. "any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under S. 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person 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 magistrate 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. In this particular case, the learned Additional First Class Magistrate examined the complaint, Wilt, and two other witnesses and also considered the materials before him. He then found that there was no case against the accused (petitioners herein) for proceeding further in the matter and dismissed the complaint under S. 203 Cr. P. C. He was competent to pass such an order, nor could any legal objection be taken to such an order being passed by him.