TMI Blog1977 (10) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... it may also be necessary to consider the legal import and significance of the term taking cognizance as used in sections 190, 200 and 202 of the Code. Before however considering the various aspects of the matter it may be necessary to summarise the facts which have led to the enquiry in the appeal before us. A Criminal case was registered by the Police Officer. Police Station, Guru Har Sahai on the basis of F.I.R. filed by Avinash Chandra against Mohd. Sadiq and others for having caused the murder of one Balbir Singh. This case was committed to the Court of Sessions by the Committing Magistrate. A cross complaint appears to have been filed before in the Court of Judicial Magistrate, First-Class, Ferozepore, on 30th December, 1974 by Kishore Singh the brother of the deceased Balbir Singh containing a counter version of occurrence mentioned in the case registered by the police. On receipt of the complaint the Magistrate ordered the police to investigate the case under section 156(3) of the Code by his order dated 1.1.1975. The police submitted a final report on 8.3.1975 indicating that no case was made out against the accused. The Court after considering the report on 2nd Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spected commission of an offence . While considering the question in greater detail this Court endorsed the observations of Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee A.I.R. 1950 Cal. 347 which was to the following effect It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Criminal Procedure Code, he must not only have applied Ms mind to the contents of the petition but he must have done so far the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding under section 200 and thereafter sending it for inquiry 'and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence . Section 190 of the Code runs thus 190.(1) Subject to the provisions of this Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the police to submit a charge-sheet on a final report being submitted by the police. In such cases a Magistrate can either order reinvestigation or dispose of the complaint according to law. Analysing the scheme of the Code on the subject in question it would appear that section 156(3) which runs thus: Any Magistrate empowered under section 190 may order such an investigation as above mentioned. appears in Chapter 12 which deals with information to the Police and the powers of the police to investigated a crime. This section, is therefore placed in a Chapter different from Chapter 14 which deals with initiation of proceedings against an accused person. It is, therefore, clear that sections 190 and 156(3) are mutually exclusive and work in totally different spheres. In other words, the position is that even if a Magistrate receives a complaint under section 190 he can act under section 156(3) provided that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post cognizance stage Chapter 12 so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say once a Magistrate starts acting under section 190 and the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate. In the instant case, there is nothing to show that the Magistrate had taken cognizance, of the complaint. Even though the complaint was filed by the Magistrate, he. did not pass any order indicating that he bad applied his judicial mind to the facts of the case for the purpose of proceeding with the complaint. What he had done was to keep the complaint aside and order investigation even before deciding to take cognizance on the basis of the complaint. After the final report was received the Magistrate decided to take cognizance of the case on the basis of the complaint and accordingly issued notice to the 'Complainant. Thus, it was on 2nd April, 1975 that the Magistrate decided for the first time to take cognizance of the complaint and directed the complainant to appear. Once cognizance was taken by the Magistrate under section 190 of the Code it was open to him lo choose any of the following alternatives : (1) Postpone the issue of process and enquire into the case himself; or (2) direct an investigation to be made by the Police Officer; or (3) any other person. In the instant case as the allegations made against the accused made out a case exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of some other kind, e.g. ordering investigation under section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. To the same effect is the decision of this Court in Jamuna Singh Ors.v. Bhadai Sah [1964] 5 S.C.R. 37,41. 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 XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offence 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 offence. In these circumstances the inescapable conclusion is that in the present case the Magistrate had not taken cognizance of the case and ordered investigation by the police under section 156(3) before applying his mind to the complaint. This being the position it was always open to the Magistrate to take cognizance of the complaint and dispose it of acco ..... 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