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Judgment
Natarajan, J.—The accused who are the revision Petitioners contended before the Sub Divisional Judicial Magistrate, Tirupattur, that the Magistrate had taken cognizance of the case against them even when he examined the complainant u/s 200, Code of Criminal Procedure, and as such he should proceed with the case u/s 244, Code of Criminal Procedure and not u/s 242, Code of Criminal Procedure.
The facts are that, on the second Respondent filing a complaint, the Magistrate examined him under Code of Criminal Procedure 200, Code of Criminal Procedure and then sent the papers to the police/first Respondent, for an enquiry being made under Code of Criminal Procedure 156 (3), Code of Criminal Procedure. After enquiry, the police submitted a charge-sheet under Sections 420 and 120-A, I.P.C. The Petitioners were issued summons and after questioning them, charges were framed u/s 420 read with 120-A, I.P.C
The Petitioners contended before the Magistrate that since the case had been taken on tile and the Magistrate had taken cognizance of the case on a private complaint, the trial should be proceeded with on the basis that the case had been instituted otherwise, than on a police report. The learned Magistrate placed reliance on the ratio contained in Shivangowda v. Veerappa AIR 1964 Mys. 124, and held that if a private complaint is referred to the police for enquiry u/s 156(3), Code of Criminal Procedure., and after enquiry the police filed a charge-sheet, then the case will automatically become one instituted on a police report and therefore the trial of the case should proceed only trader Section 242; Code of Criminal Procedure. Aggrieved by the order of the Magistrate, the Petitioners have preferred this, revision.
The contention of the Petitioners is that since the second Respondent had filed a private complaint and the Magistrate had examined the second Respondent u/s 200, Code of Criminal Procedure it must be held that the Magistrate had taken cognizance of the case on a private Complaint and consequently the trial will have to be held only in accordance with the provisions of Sections 244 to 247, Code of Criminal Procedure. The contention of the Petitioners is clearly unsustainable as there are numerous decisions holding that when the Magistrate sends a private complaint for enquiry by the police u/s 156(3) Code of Criminal Procedure, the Magistrate cannot be deemed to have taken cognizance of the case on the basis of the private complaint. The relevant authorities are as under.
In Vijayaraghavachariar and Ors. v. State 1928 (sic) M.W.N. (Cri.) 341, it was held that, if a Magistrate asked the police to make enquiry u/s 156(3), Code of Criminal Procedure, after he issued process, such order to make enquiry would be without jurisdiction and the enquiry would be illegal, but the mere fact, that he ordered issue of process does not takeaway from him the power to ask the police to enquire into the case. It was further held that the mere fact that a private complaint is filed in Court and the Magistrate takes cognizance of it does not and cannot deer the police from making enquiry and the police are entitled to prosecute the case after laying a chargesheet.
In Pacha alias Naran Naskar and Others Vs. The King, , it was held that if a Magistrate does not take cognizance on a complaint being made to him, but merely forwards the complaint to the police for investigation and for taking cognizance he acts u/s 156(3), Code of Criminal Procedure, and any further proceedings based on the charge sheet submitted by the police would be quite valid in law.
In Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, , it was pointed out that when a complaint is filed before the Magistrate, he might take cognizance of it u/s 190(1)(a), Code of Criminal Procedure. and proceed to examine the complaint u/s 200, Code of Criminal Procedure, and thereafter proceed according to the subsequent sections of the Code, or in the alternative, he may not take cognizance and may instead send it to the police for investigation under the provisions of Section 156(3), Code of Criminal Procedure. It was also observed that if the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of the Chapter, but for taking action of some other kind, e.g., ordering investigation u/s 156(3), Code of Criminal Procedure or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.
The Supreme Court has held in Gopal Das Sindhi v. State of Assam 1961 M.W.N. Cri.39, that when a complaint is filed before the Magistrate, Section 190(1) Code of Criminal Procedure does not make it obligatory foe the Magistrate to take cognizance of the case and it is open to the Magistrate to send it u/s 156(3) Code of Criminal Procedure, to the police: few investigation and any action of the Magistrate in directing the police to investigate the complaint u/s 156(3) Code of Criminal Procedure, will pot amount to the Magistrate taking cognizance of the case. To the same effect is the decision of Ramakrishnam, J. in Arumugha Gounder v. State 1961 M.W.N. Cri.167.
In Shivangowda v. Veerappa AIR 1964 Mys 129, it was held that merely because a Magistrate chose to examine the complainant on oath u/s 200 , Code of Criminal Procedure, it cannot be said that he must be deemed to have taken cognizance of the case on a private complaint and that if the police after making an enquiry submits a chargesheet, then the private complaint loses its; original character and becomes a final report u/s 173, Code of Criminal Procedure, and the trial of the case is to proceed on the basis that the case was one instituted on a police report.
In Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, it was held that, if a complaint was referred to the police for investigation by a Magistrate u/s 156(3), Code of Criminal Procedure, the enquiry by the police would be of the same nature and character as one the police are en titled to conduct under Sub-section (1) and (2) of Section 156, Code of Criminal Procedure. It was then observed at Page 2651 that if the Magistrate had applied his mind only for ordering an investigation u/s 156(3), Code of Criminal Procedure, or issuing a warrant for purposes of investigation, he cannot be said to taken cognizance of the offence.
In view of the plethora of authorities on the question raised by the Petitioner, it goes without saying that the learned Magistrate was perfectly right in holding that, since the police had filed a charge sheet in the case, the trial would have to proceed on the basis that the case has been instituted on a police report and not on the basis of a private complaint. The order sought to be revised is perfectly in accordance with law and therefore the revision has to fail. Accordingly, it will stand dismissed.