Ramlakhan Mahto vs Rameshwar Mahto and Others

B.P. Jha, J.—The petitioner (complainant-informant) has filed this revision petition for setting aside the order dated the 18th March. 1969. passed bv the Sub-Divisional Magistrate. Madhubani. and the order dated the 23rd November, 1970, passed bv the Sessions Judge. Darbhanga.

It is said that on the 7th April. 1968. at about 7 A. M., the members of the opposite partv killed one Dasrath Mahto. The petitioner (informant) lodged a fardbeyan before the offlcer-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 anv of the prosecution witnesses.'' It is said that he examined a boy who stated that Dasrath died when the tree fell on the bodv of Dasrath. The Magistrate in his order dated the 18th March, 1969. has held as follows:

It is true that some of the P. Ws. of the F. I. R. supported the version of the prosecution before the I. O. But the fact that these P. Ws. belong to, the side of the informant cannot be ruled out.

In my opinion, the learned Sub-Divisional Officer, while taking cognizance of the offence, ought not to have acted as a trial Court If there is prima facie evidence on the record to suggest the correctness of the prosecution case, he ought to have taken cognizance of the offence. In the meantime, the petitioner lodged two protest petitions! on the 9th May 1968 and 5th August, 1968 before the Sub-Divisional Magistrate. The Magistrate directed bv order dated the 10th Mav. 1968. to keep the protest petition on record. The Magistrate, while passing the order on the 18th March, 1969. was pleased to accept the final report and reiect the protest petition of the petitioner. The Magistrate rejected the protest petition without examining the complainant (petitioner) on solemn affirmation u/s 200 of the Code of Criminal Procedure (Hereinafter referred tot as ''the Code''). '' .

It is well settled that the Magis-j trate is not bound to take cognizanca u/s 190(1)(a) of the Cod o the basis of the complaint petition if if seems1 to him that the petition is a frivols ous one. In this connection, learned Counsel for the opposite partv cited a decision of the Supreme Court in Gopal Das Sindhi and Others Vs. The State of Assam and Another In that case, it has been held (i) that the provfe sions of Section 190 do not mean thai once a complaint is filed, a Magistrate is bound to take cognizance of the offence and (ii) that the word ''mav'' in Section 190(1) cannot be construed! to mean ''must1. Theia Lordships of the. Supreme Court mean fa say that if once the Magistrate takes cognizance of an offence u/s 190(1), then the Magistrate is bound to proceed under Chapter XVI of the Code. In oth''eai words, their Lordships are of opinion thai if the cognizance is taken bv the MagiSg trate in respect of a complaint, the Maaij trate is bound to proceed under, Section 200 of the Code. In Bihar, a protest petition is treated as a complaint petition provided it satisfies the requirement of Section 4(1)(h) of the Code. In the present case, one of the protest petitions satisfies the requirements of Section 4(1)(h) of tha'' Code. and. as sueh. I treat the protesl petition filed on the 9th Mav, 1968 as as complaint petition. , If it is so. the Sub>i Divisional Magistrate was bound in law] to examine the complainant (petitioner! on oath u/s 200 of the Code The contention of learned counsel of tha opposite partv is that the Magistrate wag not bound to take cognizance of the ofi fence u/s 190(1)(a) of the Coda on the basis of the protest petition (comi plaint petition) in view of the decision oi the Supreme Court in Gopal Das Sindhi and Others Vs. The State of Assam and Another . Their Lordships of the Supreme Court in paragraph 7 have clearly "held that Chapter XVI of the Coda would come into plav if the Magistrate had taken cognizance of an offence on the complaint filed before him. In the present case, the Magistrate directed the protest petition to be kept on record. If once the Magistrate intends to. take cognizance of the offence on the basis of a protest petition, then he is bound to examine the complainant on oath u/s 200 of the Code. If he fails to dispose of the protest petition without examining the complainant on oath, the order is not in accordance with law. In the present case, although the protest petition was filed on the 9th Mav. 1968. the Magistrate did not care to examine the complainant on oath and disposed of (the protest petition without examining the complainant on oath. In this connection, reference was also made to a decision of the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, . In that case, it was held at page 1164 as follows:

When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while1 not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case mav call for.

On this analogy. I would direct that the petitioner be examined on oath u/s 200 of the Code and thereafter the Magistrate will dispose of the complaint petition in accordance with law.

The word "cognizance''1 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 u/s 156(3) of the Code or for issuing a search warrant during investigation, he cannot be said to have taken cognizance of the offence u/s 190(1) I of the Code. In other words, if the Magistrate applies his mind to the facts constituting the offence under S, 190.(1) of the Code, then he is bound to proceed under Chapter XVI of the Code. But. if the Mailhitrate applies his mind not for the purpose of taking cognizance of the .offence u/s 190(1) but for [taking aption u/s 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 Vs. The State of Uttar Pradesh, was referred to. In that case, a Special Bench derision of this1 Court in Gonal v. Emperor. 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 r>roceedin under the subsequent sections of the Chapter, but for taking an action of some other kind, as for example, ordering investigation u/s 156(3) or issuinsr search warrants for the purpose of investigation. he cannot be said to have taken cognizance of the offence.

In my opinion, the word ''cognizance'', (as already stated above) means ''to apply mind for the purpose of taking cognizance in respect of the facts constituting the offence''. Therefore, if the Magistrate applies his mind not for the purpose of taking action under Chapter XVI but for taking action u/s 156(3) or for issuing search warrant or for anv other purpose, then he cannot be said to have taken cognizance of the offence u/s 190(1) of the Code. But. if he applies his mind! not for directs ing investigation u/s 156(3) or for issuing search warrant or for anv other purpose, then in that case he is bound to apply his mind for the purpose of takinff cognizance and he will have to proceed under Chapter XVI of the Code in respect of a complaint. In other words, frvr illustration, if a complaint or protest petition is lodged before the Magistrate, the Magistrate is bound to proceed under Chapter XVI for the simple reason that either he will have to dismiss the complaint u/s 203 of the Code or to take cognizance. In either of the case, the Magistrate is bound to proceed under Chapter XVI. If the Magistrate does not direct investigation un''der Section 156(3) or issue search warrant or anv other kind then the Magistrate is bound to proceed under Chapter XVI if a complaint or a protest petition is filed before him. The Magistrate has no option to sav in this case that he does not intend to proceed under Chapter XVI. If a complaint is lodged or a protest petition is filed then he has no alternative but to proceed under Chapter XVI of the Code. If he proceeds under Chapter XVI of the Code, then he will have to follow the procedure laid down under that Chapter.

In the result, trip application is allowed: the orders dated the 18th March, 1969 and 23rd November, 1970. passed bv the Sub-Divisional Magistrate. Madhu-bani. and the Sessions Judge. .Darbhanaa, respectively are set aside: and the matter, is remanded to the Sub-Divisional Magistrate. Madhubani, to examine the petitioner on oath u/s 200 of the Code and dispose of the protest petition in accordance with law. If he does so. it will be within the discretion of the Magistrate to send the case for encmirv u/s 202 of the Code.