M S NANDO Vs. BHARAT GOWDO

JUDGEMENT

(1.) THIS Criminal Revision Case has been filed against the order of the Sub -Divisional Magistrate, Srikakuiam, setting aside the conviction of the accused by the Judicial Sub -Magistrate of Pathapatnam and directing a retrial.

(2.) THE facts of the case may be briefly stated thus : - A complaint was made by the petitioner to the Sub -Magistrate of Pathapatnam alleging the commission by the accused of offences punishable under Sections 143 and 379, Indian Penal Code. The complaint petition itself was entitled an application under Section 156 (3) of the Code of Criminal Procedure, and it sought an order for investigation thereunder. The Sub -Magistrate registered it as Criminal Miscellaneous Petition No. 26 of 1953, and directed investigation by the Sub -Inspector of police, Kasibugga. After investigation, the police themselves, filed a charge -sheet against the accused which was taken on file and registered as C.C. No. 6 of 1954, and after due trial, the accused were convicted. The accused thereupon presented an appeal, Criminal Appeal No. 85 of 1954, to the Sub -Divisional Magistrate, Srikakuiam. without going into the merits of the appeal, the learned appellate Magistrate dealt with what he calls a pure point of law. It was argued before him that when a complaint is made before a Magistrate, he cannot direct investigation by the police under Section 156 (3), Criminal Procedure Code, but can only proceed under Chapter XVI of that Code (sections 200 and the following) after taking cognisance under Section 190 (1) thereof. It was urged that because the Magistrate did not immediately examine the complainant on oath and follow the procedure prescribed under that Chapter, the whole trial was vitiated by a basic invalidity which rendered the conviction one without jurisdiction. This argument found favour with the learned appellate Magistrate. He held that the Sub -Magistrate had really no jurisdiction to try the case upon a charge -sheet once a petition of complaint was filed before him, that he had no jurisdiction to refer the matter to the police for investigation after the receipt of such a complaint, and that these errors being errors of jurisdiction, the conviction had to be set aside.

(3.) I cannot agree with the reasoning of the learned appellate Magistrate. On an examination of the relevant provisions of the Code, I am satisfied that it is not obligatory upon a Magistrate immediately to follow the procedure prescribed by Chapter XVI upon the receipt of a complaint by him. He may or may not take cognisance of the offence at once. If he takes cognizance, he will have to follow the procedure prescribed by Chap. XVI. If he does not, then, there is nothing to detract from his power as a Magistrate to give such directions as he could give under Section 156 (3), Criminal Procedure Code. Section 200, Criminal Procedure Code, it is to be noted, refers to a Magistrate taking cognisance of an offence. Therefore, it is clear to my mind that Chapter XVI can only apply to a Magistrate of that character, i.e., a Magistrate who is taking cognisance. Taking cognisance, of course, has not been defined in the Code of Criminal Procedure, and his lack of definition has occasioned conflict of judicial opinion. But it seems to me that the matter has now been set at rest by the decision of the Supreme Court in R. R. Chari v. State of Uttar Pradesh AIR 1951 SC 207 in which their Lordships discussed the meaning of the word "cognizance" at length and approved of the observations of His Lordship Das Gupta, J., in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar AIR 1950 Calcutta 437 in regard to what is meant by "taking cognisance." The passage which has received the approval of the Supreme Court is as follows : "What is taking cognisance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognisance of any offence under Section 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind, e.g. order investigation ........under section 156 (3), or issuing a search warrant for purpose of investigation he cannot be said to have taken cognisance of the offence." Here, the Sub -Magistrate, when he received the complaint, did not take cognisance of the offence, but directed investigation under section 156 (3), Criminal Procedure Code. He could also have directed a search, whether, he did the one or the other, he could not be said to have taken cognizance. Now, therefore, it cannot be held that the Sub -Magistrate on receiving the complaint acted illegally or improperly in directing an investigation under Section 156 (3), Criminal Procedure Code. That being so, the whole superstructure of the reasoning of the learned appellate Magistrate falls to the ground.