RAMLAKHAN MAHTO Vs. RAMESHWAR MAHTO

JUDGEMENT

(1.) THE petitioner (complainant -informant) has filed this revision petition far setting aside the order dated the 18th March, 1969, passed by the Sub -Divisional Magistrate, Madhubani and the under dated the 23rd November, 1970, passed by the Sessions Judge, Darbhanga.

(2.) IT is said that on the 7th April, 1968, at about 7 A.M., the members of the opposite party killed one Dasrath Mahto. The petitioner (informant) lodged a fardbeyan before the officer -in -charge of the police station. The police reached the place of occurrence on the same day, that is, 7th April, 1968. The investigating officer examined the eye -witnesses on the same day. It is said that the Divisional Inspector of Police also supervised the investigation of this case. It is said that the investigating officer submitted a final report under the directions of the superior officers. It is said that the Divisional Inspector, while holding supervision did not take the statements of any of the prosecution witnesses. It is said that he examined a boy who stated that Dasrath died when the tree fell on the body of Dasrath. The Magistrate in his order dated the 18th March, 1969, has held as follows :

(3.) THE word "cognizance" has not been defined in the Code. The word "cognizance" means 'to apply the mind in respect of the facts constituting the offence'. When the Magistrate applies his mind not for the purpose of proceeding under Chapter XVI but for taking action under Section 156(3) of the Code or for issuing a search warrant during investigation, he cannot be said to have taken cognisance of the offence under Section 190(1) of the Code. In other words, if the Magistrate applies his mind to the facts constituting the offence under Section 190(1) of the Code, then he is bound to proceed under Chanter XVI of the Code. But, if the Magistrate applies his mind not for the purpose of taking cognisance of the offence under Section 190(1) but for taking action under Section 156(3) or for issuing search warrant or for any other purpose, then it cannot be said that the Magistrate applied his mind for the purpose of taking cognizance. In this connection, another decision of the Supreme Court in R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207 : (52 Cri LJ 775) was referred to. In that case, a Special Bench decision of this Court in Gopal v. Emperor, AIR 1943 Patna 245 : (45 Cri LJ 177) was also referred to. In the Supreme Court case, it has been held that when the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of the Chapter, but for taking an action of some other kind, as for example, ordering investigation under Section 156(3) or issuing search warrants for the purpose of investigation, he cannot be said to have taken cognisance of the offence.