1. The only point for determination is, whether on the facts of this case, the provision of law that is applicable is Section 252 or Section 251-A of the Code of Criminal Procedure.
2. The material facts of this case are as follows: A private complaint was filed against the petitioners before the Judicial Magistrate, First Class, 2nd Court, Gadag. On receiving the private complaint, the learned Magistrate examined the complainant under Section 200, Cri. P. C. Thereafter, he sent the papers to the police for an enquiry under Section 156(3) of the Cr.P.C. After enquiry, the police submitted a charge-sheet. The learned Magistrate took on file the charge sheet and proceeded to frame a charge under Section 251-A of the Code of Criminal Procedure without examining the prosecution witnesses, but after perusing the police report. The question for determination is, whether the case in question is one that was instituted on a police report and thus coming within the ambit of Section 251-A of the Cr.P.C. or whether it is a case instituted other than on a police report thus falling under Section 252 of the Cr. P.C.
3. It is urged by Shri B.V. Deshpande the learned counsel for the petitioners that the learned Magistrate must be deemed to have taken cognizance of the case under Section 190 of the Cr.P.C. as soon as he chose to examine the complainant on oath. According to him. once the Magistrate decides to examine the complainant under Section 200 of the Cri P.C., he has no jurisdiction to refer the case for a police enquiry under Section 156(3); all that he can do is, either dismiss the complaint at take the case on file or hold an enquiry under Section 202 Cr.P.C. This submission does not appear to me to be correct.
Taking cognizance is a mental act. It is also a judicial act. Taking cognizance ordinarily means, that the concerned Magistrate has come to the conclusion that there is a case to be enquired into On receiving a complaint and on examining the complainant, if the Magistrate comes to the conclusion, that in his judgment, there are no good grounds to proceed with the case, he has to dismiss the complaint under Section 203 Cr.P.C. If he comes to the conclusion that there is a case to take cognizance of, then, he must take cognizance of the complaint under Section 190 Cr.P.C. On the other hand, if he is unable to come to either of the conclusions referred to above, he may either order an enquiry under Section 202 Cr.P.C. or he may refer the matter to the police for an enquiry under Section 156 (3). if a further enquiry is ordered under Section 202 Cr.P.C., the complaint will continue to be private complaint.
It is for the Magistrate after considering the result of the enquiry under Section 202, Cri. P. C. to decide finally, whether he should take cognizance of the case or not. In other words, in a case where a further enquiry is ordered under Section 202, Cri. P. C., the decision whether cognizance of the complaint should be taken or not is postponed till the result of the further enquiry is available to the Magistrate. On the other hand, if he refers the complaint for a police enquiry under Section 156 (3), the police are required to investigate into the case under Chapter XIV of the Code of Criminal Procedure. If, as a result of such an investigation, the police submit a charge sheet, then, the complaint which was received as a private complaint loses its original character and becomes a final report under Section 173 Cr.P.C. If the Magistrate takes cognizance of the police report, he has to proceed under Section 251-A.
Shri Deshpande is not correct in his submission, that merely because the learned Magistrate has chosen 16 examine the complainant on oath, he must be deemed to have taken cognizance of the case. The decision to the cognizance can be taken at any stage. But ordinarily, the examination of the complainant, enquiry under Section 202 or enquiry under Section 156 (3) are all held with a view to find out whether cognizance should be taken or not.
4. The aforementioned view of mine gains considerable support from the decision of the Supreme Court in Gopal Das v. State of Assam, AIR 1961 SC 986. In that case the Supreme Court laid down that the provisions of Section 190 do not mean that once a complaint is filed a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence.
The word 'may' in Section 190 cannot be construed to mean 'must'; the reason is obvious; a complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156 (3) to the police for investigation; there is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police: on the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence; if he does so then he would have to proceed in the manner provided by Chapter XVI of the Code; when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chap. XVI tout for taking action 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.
5. For the reasons mentioned above, theRevision Petition is dismissed.
6. Petition dismissed.