HANUMAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the Public Prosecutor for the State.

(2.) THIS petition under Section 482 of the Criminal Procedure Code has been filed by the petitioner against the order dated 13th March, 1991 passed by the learned Munsif and Judicial Magistrate First Class, Rajgarh, District Churu in Crimi- nal Case No. 133/91 State vs. Ishwar and Another. By the aforesaid order the learned Munsif and Judicial Magistrate, on perusal of the record submitted by the Police under Section 173 of the Criminal Procedure Code and after going through the documents annexed thereto and hearing the arguments of the parties came to the conclusion that the case of the prosecution did not come within the purview of Sections 395 and 397 of the Indian Penal Code but prima facie comes under Sections 147, 148, 149, 341, 323, 325 and 179 was made out. He therefore, registrered the case under Sections 147, 148, 149, 341, 323, 325 and 397 of the Indian Penal Code. Relevant portion of his order may reads as under :''

(3.) IN view of above reasons before proceedings to discuss the merits of the argument advanced by the learned counsel for the petitioner it is necessary to scrutinize whether the two assumptions made by the learned counsel for the petitioner (A) that the impugned order was passed at a stage of framing charge against the accused or of committing the case to the Court of Sessions and (B) that the impugned order is an order discharging the accused persons of the offences punishable under Sections 395 and 397 of the INdian Penal Code are correct. I have gone through the whole of the order passed by the learned Judicial Magistrate. Order-sheet dated 12th March, 1991 shows that on that day the learned Judicial Ma- gistrate heard arguments about taking cognizance of the offences because the order sheet reads as below. '' 12-3-1991 ,-ih-ih- mi- vfhk;qdrx. k mi- cgl izlakku lquh xbza oklrs vkns'k 13-3-91 dks is'k gksa** and the order sheet dated 13th March, 1991 which contains the impugned order shows that on that day additional arguments about cognizance were heard and case was ordered to be registered under Sections 147, 148, 149, 341, 323, 325 and 379 of the INdian Penal Code and after taking the accused persons in custody arguments on bail applications were heard and the accused persons were directed to be released on bail and case was ordered to be listed on 20th December, 1991 for ``arguments on charge''. These two order-sheets clearly shows that on 13th March 1991 when the impugned order was passed there was neither the stage of framing charge against the accused nor there was any stage for passing order committal to the Court of Sessions. The stage at which the order was passed by the learned Judicial Magistrate, was the stage of taking cognizance of the offences punishable under Section 190 of the INdian Penal Code which is the stage of institution of the case and was not the stage, of committing the accused to the Court of Sessions under Section 209 of the Criminal Procedure Code nor was that stage of framing the charge or of discharging the accused of any offence. It may be poin- ted out that under the Code of Criminal Procedure the expression ``institution of the case'' has not been defined anywhere. But according to the ruling of the Supreme Court in Jamuna Singh vs. Bhadai Shah (2), a case is said to be instituted when the Magistrate take cognizance of an offence. Their Lordships in the above case observed as below: ``the Code does not contain any definition of the words ``institution of a case''. It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190 (1) of the Code of Criminal Procedure contains the provisions for cognizance of offe- nces by Magistrate. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts that is, facts constituting the offence made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed. Section 193 provides for cognizance of offences being taken by Courts of Sessions on commitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for cognizance being taken by High Court of offence upon a commitment made to it in the manner provided in the Code. An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magis- trate'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 any police officer it is a case instituted in the Magistrate's Court on a police report. ''