MOHAMMAD JAKAULLAH Vs. NOOR MOHAMMAD KHAN

JUDGEMENT

(1.) In this application filed under Section 482, Criminal Procedure Code, the informant has assailed the revisional order dated 16-1-1992 of the Addl. Sessions Judge, Bhadrak in Criminal Revision No.41 of 1991 quashing the cognizance taken by the Sub-Divisional Judicial Magistrate, Bhadrak under Sections 506 / 34, I. P. C. in G.R. Case No.1060 of 1990.

(2.) The factual backdrop of the case that emerges on perusal of the application and the lower court records, may be short stated thus: On the report of the petitioner, the station diary entry bearing No. 79 of 1990 was made with regard to the occurrence which is alleged to have taken place on 3-6-1990. Since the police did not take any action in the matter, the petitioner made a complaint before the learned S.D.J.M., Bhadrak who sent it to the police for investigation under Sec.156(3), Cr.P.C. On investigation the police submitted final form under S. 173, Cr. P.C. The learned Magistrate registered G. R. Case No. 1060 of 1990 and by order dated 14-11-1990 directed issue of notice to the informant for appearance. Thereafter a petition was filed by the informant requesting the Magistrate not to accept the final report on which the learned Magistrate by his order dated 15-12-1990 called for the case diary from the investigating Officer and posted the case to 15-2-1991 for consideration of the protest petition. A petition was filed by the Advocate appearing for the informant to record the statements of some of the witnesses named in the complaint petition under S.164, Cr. P. C. The learned S.D.J.M. directed the Judicial Magistrate, Ist Class, to recoord 164 statements of the PWs. The 164 statements of the witnesses were duly recorded by the Judicial Magistrate, Ist Class on 20-3-1991 and the case record was sent to the S.D.J.M. Thereafter by order dated 22-3-1991, the learned S.D.J.M. took cognizance of the offence under Ss.506/34, I. P. C. The order reads as follows:--

(3.) Against the cognizance order passed by the learned S. D. J. M., the accused persons filed Criminal Revision No. 41 of 1991 which was disposed of by the learned Addl. Sessions Judge by the impugned order. The revisional court allowed the revision petition and set aside the cognizance order. On perusal of the order it appears that the learned Addl. Sessions Judge after taking note of the three alternative courses which were available to the Magistrate on receiving the police report under S. 173(1), Cr. P. C. held that the learned Magistrate had taken cognizance of the offence under S.190(1)(a), Cr. P. C. on the basis of the original complaint without following the procedure prescribed under Chapter XV of the Code of Criminal Procedure and therefore, the cognizance order was vitiated. He expressed his views in the following words: