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1963 SCC OnLine SC 263 : (1964) 5 SCR 37 : AIR 1964 SC 1541 :
(1964) 2 Cri LJ 468
In the Supreme Court of India
(BEFORE B.P. SINHA, C.J. AND M. HIDAYATULLAH AND K.C. DAS GUPTA, JJ.)
JAMUNA SINGH AND OTHERS … Appellant;
Versus
BHADAI SHAH … Respondent.
Criminal Appeal No. 56 of 1960*, decided on October 4, 1963
Advocates who appeared in this case:
D.P. Singh, Advocate, of Ramamurthi and Co., Advocates, for the
Appellants;
K.K. Sinha, Advocate, for the Respondent.
The Judgment of the Court was delivered by
K.C. DAS GUPTA, J.— These seven appellants were tried by the
Assistant Sessions Judge, Saran, on charges under Section 395 of the
Indian Penal Code and also under Section 323 of the Indian Penal Code
but acquitted by him of both the charges.
2. The prosecution case was that on November 15, 1956 when
Bhadai Sah, a businessman belonging to Teotith, within police station,
Baikunthpur, was passing along the village road on his way to purchase
patua the seven appellants armed with lathis surrounded him and
demanded that he should handover the monies he had with him.
Bhadai had Rs 250 with him but he refused to part with them. Kesho
Shingh, one of the appellants tried to take away forcibly the currency
notes from his pocket but Bhadai caught hold of his arm and raised an
alarm. On this all the appellants assaulted him with their lathis and as
he fell injured Kesho Singh took away the money from his pocket.
Bhadai thereupon filed a petition of complaint in the Court of the Sub-
Divisional Magistrate, Gopalganj, on November 22, 1956. The
Magistrate after examining him on solemn affirmation made an order
asking the Sub-Inspector of Police, Baikunthpur, to institute a case and
report by December 12, 1956. Ultimately a charge-sheet was submitted
by the police and the accused persons were committed to the Court of
Sessions. The Sessions Trial ended, as already stated, in the acquittal
of all the appellants.
3. Against the order of acquittal, Bhadai Sah filed an appeal under
Section 417(3) of the Code of Criminal Procedure in the High Court of
Judicature at Patna. On the following day two learned Judges of the
High Court made the order:“The appeal will be heard”. The appeal then
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came up for hearing before two other learned Judges of the Court who
being of opinion that the learned Sessions Judge had rejected the
prosecution evidence “on unsound standards without any real effort to
assess the credibility of the evidence” and that the prosecution case
was fully established by the evidence, set aside the order of acquittal
and convicted the appellants under Section 395 of the Indian Penal
Code and sentenced them to two years' rigorous imprisonment.
4. Against this order of the High Court the present appeal has been
filed by special leave of this Court.
5. The main contention urged in support of the appeal is that in this
case no appeal lay to the High Court against an order of acquittal,
under Section 417(3) of the Code of Criminal Procedure. This provision
in Section 417 was introduced in the Code by the Amending Act 26 of
1955, giving a complainant a right of appeal against acquittal where a
case is instituted upon a complaint. Before this new legislation, only the
State Government had the right to appeal against an order of acquittal.
The result of the new provision in sub-section (3) is that if an order of
acquittal is passed by any court other than a High Court in a case
instituted upon a complaint the High Court on an application made to it
by the complainant in this behalf may grant special leave to appeal
from the order of acquittal and on such leave being granted the
complainant may present such an appeal to the High Court. It is to be
noticed that this right is limited only to cases instituted upon a
complaint. On behalf of the appellants? it is argued that the case
against them was not instituted on any complaint but was instituted on
a police report.
6. 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 provision for cognizance of offences by
Magistrates. 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 offences upon a commitment made to it in
the manner provided in the Code.
7. An examination of these provisions makes it clear that when a
Magistrate takes cognizance of an offence upon receiving a complaint of
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facts which constitute such offence, a case is instituted in the
Magistrate'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 fact's made by any police officer it is a case instituted
in the Magistrate's Court on a police report.
8. To decide whether the case in which the appellants were first
acquitted and thereafter convicted was instituted on a complaint or not,
it is necessary to find put whether the Sub-Divisional Magistrate,
Gopalganj, in whose Court the case was instituted, took cognizance of
the offences in question on the complaint of Bhadai Sah filed in his
Court on November 22, 1956 or on the report of the Sub-Inspector of
Police dated December, 13, 1956. It is well settled now that when on a
petition of complaint being filed before him a Magistrate applies his
mind for proceeding under the various provisions of Chapter 16 of the
Code of Criminal Procedure, he must he held to have taken cognizance
of the offences mentioned in the complaint. When however he applies
his mind not for such purpose but for purposes of ordering investigation
under Section 156(3) or issues a search warrant for the purpose of
investigation he cannot be said to have taken cognizance of any
1
offence. It was so held by this Court in R.R. Chari v. State of U.P. and
2
again in Gopal Dass v. State of Assam .
9. In the case before us the Magistrate after receipt of Bhadai Shah's
complaint proceeded to examine him under Section 200 of the Code of
Criminal Procedure. That section itself states that the Magistrate taking
cognizance of an offence on a complaint shall at once examine the
complainant and the witnesses present, if any, upon oath. This
examination by the Magistrate under Section 200 of the Code of
Criminal Procedure puts it beyond doubt that the Magistrate did take
cognizance of the offences mentioned in the complaint. After
completing such examination and recording the substance of it to
writing as required by Section 200 the Magistrate could have issued
process at once under Section 204 of the Code of Criminal Procedure or
could have dismissed the complaint under Section 203 of the Code of
Criminal Procedure. It was also open to him, before taking either of
these courses, to take action under Section 202 of the Code of criminal
Procedure. That section empowers the Magistrate to “postpone the
issue of process for compelling the attendance of persons complained
against, and either enquire into the case himself or if he is a Magistrate
other than a 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 by such other person as he thinks fit, for the purpose
of ascertaining the truth or falsehood of the complaint”. If and when
such investigation or inquiry is ordered the result of the investigation or
inquiry has to be taken into consideration before the Magistrate takes
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any action under Section 203 of the Code of Criminal Procedure.
10. We find that in the case before us the Magistrate after
completing the examination under Section 200 of the Code of Criminal
Procedure and recording the substance of it made the order in these
words:
“Examined the complaint on Sections. The offence is cognizable
one. To S.I. Baikunthpur for instituting a case and report by
12.12.56”.
If the learned Magistrate had used the words “for investigation” instead
of the words “for instituting a case.” the order would clearly be under
Section 202 of the Code of the Criminal Procedure. We do not think that
the fact that he used the words “for instituting a case” makes any
difference. It has to be noticed that the Magistrate was not bound to
take cognizance of the offences on receipt of the complaint. He could
have, without taking cognizance, directed an investigation of the case
by the police under Section 156(3) of the Code of Criminal Procedure.
Once however he took cognizance he could order investigation by the
police only under Section 202 of the Code of Criminal Procedure and not
under Section 156(3) of the Code of Criminal Procedure. As it is clear
here from the very fact that he took action under Section 203 of the
Code of Criminal Procedure, that he had taken cognizance of the
offences mentioned in the complaint, it was open to him to order
investigation only under Section 202 of the Code of Criminal Procedure
and not under Section 156(3) of the Code. It would be proper in these
circumstances to hold that though the Magistrate used the words “for
instituting a case” in this order of November 22, 1956 he was actually
taking action under Section 202 of the Code of Criminal Procedure, that
being the only section under which he was in law entitled to act.
11. The fact that the Sub-Inspector of Police treated the copy of the
petition of complaint as a first information report and submitted
“charge-sheet” against the accused persons cannot make any
difference. In the view we have taken of the order passed by the
Magistrate on November 22, 1956, the report made by the police officer
though purporting to be a report under Section 173 of the Code of
Criminal Procedure should be treated in law to be a report only under
Section 202 of the Code of Criminal Procedure.
12. Relying on the provisions in Section 190 of the Code that
cognizance could be taken by the Magistrate on the report of the police
officer the learned counsel for the appellants argued that when the
Magistrate made the order on November 22, 1956 his intention was
that he would take cognizance only after receipt of the report of the
police officer and that cognizance should be held to have been taken
only after that report was actually received in the shape of a charge-
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sheet under Section 173 of the Code, after December 13, 1956. The
insuperable difficulty in the way of this argument, however, is the fact
that the Magistrate had already examined the complainant under
Section 200 of the Code of Criminal Procedure. That examination
proceeded on the basis that he had taken cognizance and in the face of
this action it is not possible to say that cognizance had not already
been taken when he made the order “to Sub-Inspector, Baikunthpur,
for instituting a case and report by 12.12.56.”
13. Cognizance having already been taken by the Magistrate before
he made the order there was no scope of cognisance being taken afresh
of the same offence after the police officer's report was received. There
is thus no escape from the conclusion that the case was instituted on
Bhadai Sah's complaint on November 22, 1956, and not on the police
report submitted later by the Police Sub-Inspector, Baikunthpur. The
contention that the appeal did not lie under Section 417(3) of the Code
of Criminal Procedure must therefore be rejected.
14. The next contention raised on behalf of the appellants is that the
High Court was not justified in interfering with the order of acquittal
passed by the learned Assistant Sessions Judge. The reasoning on
which the learned Assistant ‘sessions Judge rejected the evidence of
the prosecution witnesses and the reasons for which the learned Judges
of the High court were of opinion that there was no real effort by the
learned Sessions Judge to assess the credibility of the evidence have
been placed before us. It is quite clear that the High Court examined
the matter fully and carefully and on a detailed consideration of the
evidence came to the conclusion that that assessment of the evidence
had resulted in a serious failure of justice. The principles laid down by
this Court in a series of cases as regards interference with orders of
acquittal have been correctly followed by the High Court. There is
nothing, therefore, that would justify us in reassessing the evidence for
ourselves. As relevant parts of the evidence were however placed before
us, we think it proper to state that on a consideration of such evidence
we are satisfied that the decision of the High Court is correct.
15. As a last resort the learned counsel for the appellants argued
that the Magistrate had acted without jurisdiction in asking the police
to institute a case and so the proceedings subsequent to that order
were all void. As we have already pointed out, the order of the
Magistrate asking the police to institute a case and to send a report
should properly and reasonably be read as one made under Section 202
of the Code of Criminal Procedure. So, the argument that the learned
Magistrate acted without jurisdiction cannot be accepted. At most it
might be said that in so far as the learned Magistrate asked the police
to institute a case he acted irregularly. There is absolutely no reason,
however, to think that that irregularity has resulted in any failure of
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justice. The order of conviction and sentence passed by the High Court
cannot be reversed or altered on account of that irregularity.
16. In the result, the appeal is dismissed.
———
*
Appeal by Special Leave from the Judgment and Order dated 27th November 1959 of the-
Patna High Court in Criminal Appeal No. 63 of 1957.
1
1951 SCC 250 : (1951) SCR 312
2
AIR 1961 SC 986
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