HEMLATA Vs. GYANCHANDRA

JUDGEMENT

(1.) THIS revision, filed under section 397/401 Cr.P.C. is by accused persons charged with offences punishable u/s. 294, 506 (B) and 427 IPC and is directed against order dated 28 -4 -1986 passed by the Judicial Magistrate, First Class, Hatta, Dist. Damoh, in Criminal Case No 323 of 1986.

(2.) THE non -applicant is the father -in -law of Applicant No. 1 and filed a complaint before the learned Judicial Magistrate on 17 -12 -1985 alleging offences u/s. 352/327, 341, 452, 342, 427, 477, 204 and 294 IPC against the applicants. Non -applicant No. 2 is the brother and non -applicant No. 3, the father of non -applicant No. 1. It was alleged that the non applicant No. 1 was married to Vijay, the son of the complainant, about 8 years before. They could not, however, live together and obtained divorce about 3 years before. It was further alleged that on the date of incident all applicants came to him from Damoh and informed that they were on their way to Kundalpur on pilgrimage and wanted to spend the night. They were permitted by the complainant to spend the night in his house. The complainant sent his son to arrange for their food and proper reception. As soon as the complainant was alone in the house, applicant Chhedilal asked for papers relating to partnership of the Typing Institute at Seoni and wanted the said document to be handed over (sic). Applicant Dhannoo is alleged to have caught hold of the complainant by his waist and applicant Chhedilal took out the keys from the pocket of the complainant. The keys were given to applicant Hemlata who opened the almirah and took out a box containing documents. She however could not find the partnership deed and hence lit fire to those documents with a match -stick. The witnesses had, by then reached the spot and caught hold of applicant Chhedi. Applicant Dhannoo is alleged to have been armed with deadly weapons and threatened to kill the complainant and his son Vijay Kumar. No report was, however, lodged with the police as the complainant and his son Vijay were both afraid. The incident is said to have taken place on 13 -101985.

(3.) FROM the statement of facts aforesaid, it is clear that the learned Magistrate has not examined the complainant or his witnesses on oath. He has also not relied upon the complainants alone, but has taken into consideration documents and report of the police. Is this procedure correct ? In Jamuna Singh v. Bhadal Shah : AIR 1964 SC 1541 the Supreme Court examined parallel provisions in 1898 Code and held that its examination makes it clear that when the Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute an 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 police officer, it is a case instituted in the Magistrate's Court on a police report. It is well settled now that when a petition of complaint being filed before him, a Magistrate applies his mind for proceeding under various provisions of Chapter XI 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. The Court, for this purpose, recalled its earlier decisions in R.R. Chari v. State of U.P. : AIR 1951 SC 207 and Gopaldas v. State of Assam, AIR 1961 SC 986. Application of this law to the facts of the present case would lead this Court to conclude that the learned Magistrate has not taken cognizance of the complaint on 17 -12 -1985, when he ordered investigation under section 156 (3) of the Code. Under the circumstances, the police was required to submit its report under section 173 of the Code. It is only on receipt of 'police report' that the learned Magistrate could take cognizance of the offence under section 190 (1) (b) of the Code.