(1) The question which arises for determination in this Criminal Petition is as to whether the petitioner is entitled under sub-s(3) of S. 417of the Commissioner. P. C. To apply for special leave to appeal from the order of acquittal which has been passed by the First Class Magistrate, Doddaballapur, in Criminal Case No. 12 of 1958 on the file of his Court. In that criminal case, the Police of Dodbelavangala had placed a charge-sheet against the accused persons, for offences under Ss. 454, 451, 427 and 379 I.P.C. The Magistrate has passed an order of acquittal under sub-s. (11) of S. 251-A of the Cr.P.C.
Having regard to the fact that it was the Police that had placed the charge-sheet before the Magistrate, the High Court officer entertained a doubt as to whether the present petitioner could under S. 417(3) of the Commissioner. P. C., ask for leave to appeal. The Hon'ble Admission Judge before whom the papers had been placed, ordered that it may be posted for orders on the question of maintainability. Thereafter, the matter came up before this Bench and in view of the importance of the question raised. Shri Shankar Chetty the learned Additional Assistant Advocate General was requested to assist the Court. Sri H. L. Narasimha Sastry has argued on behalf of the petitioner that the application is maintainable under S. 417(3) of the Criminal P. C.
(2) The stand which have been taken on behalf of the present petitioner is that though the Police had placed the charge-sheet, it was the complainant that first started the proceedings by presenting a complaint to the Magistrate and it was on that complaint, that the Magistrate ordered the investigation which resulted in the Police placing the charge-sheet. The learned Additional Assistant Advocate General's contention is that as the Magistrate took cognizance of the offence not on the complaint of the petitioner, but only on the complaint of the petitioner, but only on the charge-sheet placed by the police, the order of acquittal subsequently passed was not on 'any case instituted upon complaint' and that, therefore, Section 417(3) of the Cr.P.C. would not entitle the petitioner to apply for special leave. For the reasons which will be presently stated we are of the opinion that the contention of Sri Shankar Chetty has to prevail.
(3) On a careful reading of sub-section (3) of Section 417 of the Commissioner. P. C. It will be seen that it is not sufficient for the purposes of that sub-section if merely a complaint had been made and an order of acquittal has been subsequently passed; it is also necessary that such an order of acquittal should have been passed in a 'case' instituted upon complaint. The contention of Sri Shankar Chetty is that until a Magistrate has taken cognizance of an offence, there is no 'case' before the Magistrate and it is urged by him that as the Magistrate did not take cognizance of the offence on the present petitioner's complaint, the subsequent order of acquittal has not been passed in a 'case' instituted upon complaint, within the meaning of sub-section (3) of Section 417 of the Cr. P.C.
(4) The contention that the mere fact that there is a complaint before a Magistrate is not equivalent to there being a 'case' before the Magistrate derives support from the wordings of Section 190 and 191 of the Cr.P.C. Section 190 relates to the Magistrate taking cognizance of offence, in any of the manners mentioned thereafter the Magistrate has taken cognizance of an offence under clause (c) of sub-section (1) of Section 190; this indicates that it is after a Magistrate has, under clause (c) of sub-section (1) of Section 190 of the Commissioner. P. C., taken cognizance of an offence, that there is a 'case' before the Magistrate. So far as sub-s. (1)(b) of Section 190, Commissioner. P. C. (Which relates to a report in writing made by a Police Officer) is concerned, the stage of cognizance by the Magistrate is when a final report or a charge-sheet is placed before the Magistrate. As observed by D. Mookerjee J. in Parul Bala Sen Gupta v. The State, : AIR1957Cal379 it is only at this stage that Section 190(1)(b) of the Cr.P.C. Comes into play. On the Magistrate taking cognizance of any offence in respect of which such a report is made, 'case' is brought into existence. At page 381 of the report of the said decision, the learned Judge states as follows:--
'This report may be what is popularly called a final report in which the police after investigation finds that no case is made out: or it may be what is called a charge-sheet or challan submitted to a competent Magistrate for the purpose of taking cognizance of the offence. It is only here at this stage that S. 190(1)(b) of the Code of Criminal Procedure comes into play. It provides that a Magistrate named in the section may take cognizance of the offence upon a report in writing of the facts made by the police officer. That report is undoubtedly a report under S. 173 of the Code of Criminal Procedures. Therefore, it is only when such a report is made and the Magistrate takes cognizance of the offence that a 'case' is brought into existence......................'
Section 190(1)(b) relates to a complaint, on receipt of which the Magistrate may take cognizance of any offence disclosed therein. As to what exactly is meant by the Magistrate taking cognizance of an offence upon receipt of a complaint has been explained by Das Gupta J. in Supdt. and Remembrancer of Legal Affairs. West Bengal v. Abani Kumar : AIR1950Cal437 his Lordship has stated as follows:--
'What is 'taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under S. 190(1)(a), Criminal P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,--proceeding under S. 200, and thereafter sending it for enquiry and report under S. 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 S. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence'.
This view of the learned Judge has been approved by the Supreme Court in R. R. Chari v. State of Uttar Pradesh : 1951CriLJ775 . Merely because a complaint has been presented before a Magistrate, it cannot be said that there is a 'case' before him, even though the Magistrate has not taken cognizance of any offence upon such a complaint. In a very recent decision of the Calcutta High Court reported in Osman Gani v. Baramdeo Singh : AIR1959Cal145 , Guha Ray J., while dealing with the meaning of the expression any case instituted upon complaint in Section 417(3) of the Cr.P.C., has stated as follows at page 147:--
'A case is a cause before the Court and there is no cause before the Court until the Court initiates proceedings on the basis of it. As soon as the proceedings are initiated there is a cause before the court so that the expression any case instituted upon complaint must, in my opinion mean only that class of cases where not merely complaint but the Magistrate takes cognizance of the offence or offences alleged on the basis of that complaint.'
We are in respectful agreement with this view of his Lordship.
(5) In the present case, the Magistrate did not take cognizance of any offence upon receipt of the petitioner's complaint, but he, admittedly, ordered investigation under Section 156(3) of the Cr.P.C. It was only after the police had placed the charge-sheet that the Magistrate really took cognizance of the offences disclosed in the charge-sheet. There was no 'case' before he took cognizance of the offences disclosed in the charge-sheet. The Magistrate not having taken cognizance of any offence upon receipt of the petitioner's complaint, it is clear that there was no case instituted upon complaint within the meaning of sub-section (3) of Section 417 of the Cr.P.C. Under these circumstances, the petitioner is not entitled under sub-section (3) of Section 417 of the Cr.P.C., to make an application for special leave to appeal. His application is not maintainable and is, therefore, rejected.
Iqbal Husain, J.
(6) I agree.
(7) Application rejected.