ASHA DAS Vs. STATE

JUDGEMENT

(1.) THIS is a reference under Section 438, Criminal P. C., from the Additional Sessions Judge, U. A. D.

(2.) THE facts giving rise to the reference are as follows :

(3.) THE first question that arises in the case is whether in the circumstances of the case it can be said that the learned Magistrate had taken cognizance of the offence complained of on the complaint under chap. XVI. Section 200 of chap, XVI provides that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant and also by the Magistrate. It seems to the quite clear that the examination of the complainant under Section 200 follows the 'taking cognizance' of the offence. It is only on taking cognizance that he has to proceed to examine the complainant. Where therefore a complainant has been examined on his complaint under Section 200 there can be no manner of doubt that cognizance has been taken. If before examining the complainant, any order or direction is issued to the police that order would not be covered by any section of chap, XVI, for without examining the complainant no order under Section 202 can be passed. Any enquiry that the Magistrate may think fit to make or order under Section 202 can be made or ordered after the examination of the complainant under Section 200. This is clear from the proviso to Section 202 which lays down that save where the complaint has been made by a Court, no such direction (as is permissible under Section 202) shall be made unless the complainant has been examined on oath under the provisions of Section 200. Beading the two sections together it is obvious that an order for investigation even to the police under Section 202 can be made only after the examination of the complainant. Where a Magistrate examines a complainant under Section 200, there cannot be any doubt that he has taken cognizance of the case. For he could examine the complainant only on taking cognizance and not without it. If he proceeds 'further ' and passes any order under Section 202, there would not be merely the cognizance of the case, but also the indication of the way that the Magistrate has thought fit to proceed. He may instead of issuing the process for compelling the attendance of the person complained against, either inquire into the case himself or if he is a Magistrate other than the 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 such other person as he thinks fit. He can choose any of the three courses for the preliminary enquiry if he decides not to issue a process. Acting under Section 202 would be in pursuance of a decision to proceed under chap. XVI.