JAMESH SEBASTIAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) WHAT is a 'complaint'under the Code of Criminal Procedure (in short, 'the Code')? How does a 'complaint'differ from a 'police report' as defined in the Code? whether a report, submitted to a Judicial magistrate by police on completion of investigation, which commenced on the basis of a direction issued by a Magistrate in exercise of the latter's powers under S. 202 of the Code, can also be regarded as a 'police report' as defined in the Code? What is 'cognizance'? When a 'complaint' is made to a magistrate alleging commission of a cognizable offence, is the Magistrate bound to take 'cognizance' of the offence, which such a 'complaint' may disclose, or has the Magistrate any discretion to direct registration of the 'complaint' as a First Information Report (in short, 'the FIR') and investigation into the offence as may have been alleged, in the 'complaint,' to have been committed. When the Magistrate applies his mind to the contents of a 'complaint' in order to determine whether or not the 'complaint' discloses commission of an offence, 'cognizable' or 'non-cognizable,' can the Magistrate be said to have been taken 'cognizance' of the offence (s), which such a 'complaint' may disclose, or is it only when the Magistrate decides to examine the correctness or otherwise of the allegations made in the 'complaint' and proceed with the 'complaint,' as a 'complaint case,' that it can be said that the Magistrate has taken 'cognizance'? When can a Magistrate be said to have taken 'cognizance' on the basis of a 'compaint' ? How does taking of 'cognizance' by a Magistrate on the basis of a 'complaint' differ from taking of 'cognizance' on the basis of a 'police report'? What are the various modes of taking 'cognizance'by a Magistrate? can a petition, filed in the Court of Chief Judicial Magistrate, alleging commission of an offence and requesting a direction to the police to investigate the same be treated as a 'complaint' and, if so, whether such a 'complaint' can be sent to the police for registering the same as an FIR and taking up investigation into the commission of offence (s), which such a petition may prima facie disclose to have been committed? Whether a Magistrate has the power to direct investigation by police on a mere 'information' given to him by any person alleging commission of an offence even if no request or prayer has been made, while furnishing such 'information,' that the offence, which such 'information' may disclose to have been committed, be enquired into and investigated? Is it necessary that a person must exhaust the remedies available, under Ss. 154 to 156 of the code, before coming to the Court and lodging a 'complaint' as defined in the Code? these are some of the important questions, which have been raised in the present criminal petition, made under S. 482, Cr. P. C. , by the petitioners, who stand named as accused in the FIR, which has given rise to silchar Police Station Case No. 388/2008 (corresponding to GR Case No. 727/2008)under Ss. 417/325/406/273/34, I. P. C.

(2.) BEFORE dealing with the questions posed above, it is necessary to take note of the material facts, which have led to the making of the present criminal petition. These facts may, in brief, be set out as follows :

(3.) I have heard Dr. B. Ahmed, learned counsel for the accused-petitioners, and Mr. Z. Kamar, learned Public Prosecutor, Assam, appearing on behalf of the opposite party no. 1.