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Judgment
Walsh, J.—This is a petition to revise an order of the learned Sessions Judge of West Godaveri directing further inquiry into a complaint of
kidnapping. This complaint of kidnapping had been originally made to the police on 15th March 1931. The police sent a referred charge sheet to
the Subdivisional Magistrate who ordered the police to put in a charge sheet. In reply to this the police again put in a referred charge sheet;
meanwhile the Subdivisional Magistrate who passed the order directing a charge sheet to be put in was succeeded by another.
The latter agreed with the police and by his order on 27th June 1931 directed the ease to be treated as one of a civil nature. An application to
revise this order was made before the Sessions Judge who ordered further inquiry into the complaint and it is against this order that this revision
petition has been filed. The matter really turns upon the question as to whether the Subdivisional Magistrate who directed the police to put in a
charge sheet took cognizance of the case or not. The view of the learned Sessions Judge was that he took cognizance and that therefore the case
could not be disposed of by the order of his successor accepting the referred charge sheet and remained pending. It is agreed both by Mr.
Jayarama Ayyar who argued the case for the petitioner and by Mr. Bewes for the Crown--and it is quite obvious--that the order directing the
police who had put in a referred charge sheet to put in a charge sheet was not a legal order. The police must be allowed to form their own opinion
of a case when submitting their report and a Magistrate cannot ask them to change their opinion merely because he does not agree with them. In
this case the police were quite entitled to do what they subsequently did, and I think they were right, when they still entertained their former
opinion, to submit another referred charge sheet instead of a charge sheet. It is clear from the Code and is not disputed that there are only two
matters which the Sessions Judge can revise; u/s 436, Criminal P.C., he can direct further inquiry to be made into any complaint which has been
dismissed u/s 203 or Sub-section (3), Section 204, or into the case of any person accused of an offence who has been discharged. The first point
urged for the petitioner is that there was no complaint before the Magistrate. With that contention I agree. There are only three ways in which a
Magistrate can take cognizance of an offence and they are described in Section 190, Criminal P.C.;
(a) upon receiving a complaint of facts which constitute such offence; (b) upon report in writing of such facts made by any police officer; and (c)
upon information received from any person other than a police officer, or upon his own knowledge, or suspicion, that such offence has been
committed.
Admittedly neither (a) nor (c) applies in this case. Turning to (b), the words, ""such facts"" have to be read with Clause (a), that is, as being facts
which constitute such offence."" A police referred charge sheet, where, as in this case, it is reported that there has been no offence committed
cannot possibly be called a report on facts which constitute such offence. The learned Sessions Judge has relied on three rulings in 2. Weir--one
case reported in Mallappa Reddy v. Emperor [1904] 27 Mad. 127 and two in L.M. Soares, In re [1904] 2 Weir 246. It may be noted that none
of these cases decided the matter in question. In the first case what was actually decided was that a Magistrate who agreed with the view of a
complaint taken by the police officers that there was no sufficient ground for launching an investigation need not send for and examine the
complainant before dismissing the complaint. That is still good law, if we use ""complaint"" as meaning complaint to the police. But the remark relied
on and which finds a place in the heading is that a police report (apparently of this sort) would give jurisdiction to a Magistrate to enter upon an
inquiry. This decision however was under the Code of 1872. There is no definition there of ""complaint"" and the section which was being dealt with
Section 141 ran:
A Magistrate may entertain a complaint of an offence, whether preferred directly by the complaint, or on report of a police officer, and may issue
process, in the manner hereinafter prescribed, to compel the appearance of persons accused of such offences.
In Section 4(a) of the Code of 1882 the word ""complaint"" was first defined and that definition stands also in the Code of 1898 as amended,
Section 4(h), which runs:
''Complaint'' means the allegation made orally or in writing to a Magistrate, with a view to his; taking action under this Code, that some person,
whether known or unknown, has committed an offence, but it does not include the report of a police officer.
Hence the obiter remarks in Mallappa Reddy v. Emperor [1904] 27 Mad. 127 are not applicable to cases under the present Code. The next
case is L.M. Soares, In re [1904] 2 Weir 246, High Court proceedings dated 24th July 1875, No. 1552. What was held there was that a
complaint made in the form of a police report may be dismissed without examining witnesses, if the facts stated in the report constitute no offence.
That is still good law. This was again under the Code of 1872 and the obiter remarks are therefore no authority in the matter now under
consideration. The next case is on the same page--Criminal Revision Case No. 162 of 1895. It follows the previous cases on the same point and
says that if the complaint had been made by a police charge sheet it was unnecessary to examine the complainant. I think it is clear that the word
complaint"" here is loosely used, particularly as the judgment is very brief and is rested upon the two cases quoted above.
The learned Public Prosecutor did not dispute that there was a referred charge sheet by the police which did not constitute a complaint; but he
argued that though the Subdivisional Magistrate''s order dated 25th April 1931 which directed a charge sheet to be filed was not correct, yet the
force of the whole order amounted to the Court taking cognizance. As observed in Ananta Ram v. Altab Sarkar [1913] 14 Cri. L.J. 425, the
expression ""to take cognizance"" has not been defined in the Criminal Procedure Code and it is difficult to ascertain at what precise stage of a case
cognizance is said to be taken. The learned Sessions Judge relied on Emperor v. Sounindra Mohan [1910] 37 Cal. 412, where it is said that taking
cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the
suspected commission of an offence. The facts of that case are different from those of the present case. In that case there had been a transfer of
the case from the Subdivisional Magistrate to the Headquarters Magistrate That transfer necessarily implied taking cognizance of the offence. I will
set out the order of the Subdivisional Magistrate in the present case dated 25th April 1931. It runs:
The parties are Hindus. Under Hindu law the father is the lawful guardian of his children. A mother cannot claim right to the custody of her
legitimate children adversely to the father. As matters stand two persons are alleged to have taken away the child without the consent of the
guardian (father) in whose custody the child was on the date of the offence, What their defence is not the consideration. The general trend of the
evidence recorded is also in favour of the prosecution story. There can be no question of civil dispute in a case of this sort. The S.H.O. is therefore
directed to file a charge sheet in this case.
No doubt in the words of Emperor v. Sounindra Mohan [1910] 37 Cal. 412, the Magistrate applied his mind to the case to a certain extent, but
what he really did may be interpreted in one of two ways; he either told the police:
think again and see if you cannot come to a different conclusion;
or else he meant, ""I will take cognizance if you file a charge sheet."" It does not appear to me that either of these actions of the Magistrate by which
he referred the matter to the police for a fresh final report can be called taking cognizance."" Although the terms ""charge sheets"" and referred charge
sheets are in constant use, it is well known that no such terms are to be found in the Criminal Procedure Code and even when it was amended in
1923 nothing was done to bring the practice into closer contact with the Procedure Code itself. The Code does of course provide for one sort of
referred charge sheet; that is where the police see no sufficient grounds for investigation. This falls u/s 157(1)(b), which says:
if it appear to the officer in charge of a police station that there is no sufficient ground for entering on an investigation he shall not investigate the
case.
This is followed by a proviso that
in each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1), the officer in charge of the police station shall state in his
said report his reasons for not fully complying with the requirements of that subsection, and in the case mentioned in Clause (b), such officer shall
also forthwith notify to the informant, if any, in such manner as may be prescribed by the Local Government, the fact that he will not investigate the
case or cause it to be investigated.
This obviously does not meet the contingency in which the police have investigated and find the complainant''s case not made out or the offence
undetectable. Although Section 173 which deals with the final report of the police, does not appear to contemplate anything, but a report which
leads to trial if the Magistrate approves of it, nevertheless as the police must send a report after investigation in every case, there is no other section
under which a referred charge sheet after investigation can be brought. I cannot, therefore agree with the argument of the petitioner that Section
173 does not apply to a referred charge sheet. It is well settled now that when the police refer a case as false and the Magistrate orders it to be so
treated this is not a judicial act. A complaint by the Court is not required to prosecute a complainant for making such a false complaint to the police
u/s 211: vide Bhimaraja Venkateswarulu v. Moova Bapula [1912] 13 Cri. L.J. 480, which has been confirmed by a Full Bench and such an order
is admittedly not revisable by the Sessions Judge u/s 436. From this it is fair to argue that and order other than proceeding u/s 203 by sending for
the complainant or u/s 204 by issuing process is also not a judicial act, and consequently not capable of revision u/s 436. It is argued that the mere
application of his mind by the Magistrate to the case amounted to taking cognizance. But even to accept a referred charge sheet the Magistrate
must apply his mind to the case and this is certainly not taking cognizance. Mere application of his mind will not therefore amonnt to taking
cognizance of the offence. In my opinion, therefore the order of the Subdivsional Magistrate dated 25th April 1931 did not amount to taking
cognizance of the offence. His successor, therefore in dealing with the matter when the police again sent up a referred charge sheet, was in the
same position as if he had been dealing with the original report of the police, and his order directing the case to be treated as one of civil nature
was not subject to revision by the Sessions Court. The petition is therefore allowed and the order of the learned Sessions Judge is set aside