A.H. Khan, J.
1. The facts out of which this reference arises are that the non-applicants (Gulab son of Jhunna, Halker son of Girdhari and, Onkar son of Langra Sansi) were produced before the Magistrate, First Class Biora under Sections 457 and 380, I. P, C,. for remand. The remand was granted but when the Police did not produce the case-diary, the Magistrate Biora admitted the accused to bail. Later on, because the Police did not put up the Challan for quite a long time, the Magistrate at Biora eventually released the accused on 24-7-57. Thereafter on 23-8-57, the Police filed a Challan against Jangalia and also against Gulab, Halker and Onkar, who were already released on 24-7-57. The learned Magistrate, while taking cognizance of the case against Jangalia, refused to proceed against Gulab, Halker and Onkar, on the ground that he had already released these persons on 24-7-57. Against this order, a revision was filed before the Additional District Magistrate, Rajgarh, who has sent this case with the recommendation that the Magistrate be directed to take cognizance of the case against Gulab, Halker and Onkar also.
2. From the facts stated above, it is obvious that the learned First Class Magistrate, Biora released Gulab, Halker and Onkar in sheer disgust because of the procrastination of the Police in presenting the Challan. However regrettable the delay by the Police may be, what we have to consider is not the release granted to these persons by the Magistrate, but the effect of such a release. The release by the Magistrate before the Challan was filed was at a stage when the Police was investigating the case. Such a release is neither a discharge nor an acquittal under Section 251-A, Criminal Procedure Code. A Magistrate takes cognizance of an offence under Section 190, Cr. P. Code when a report is filed by the Police. In this view of the matter, I am afraid that the learned Magistrate is not justified in refusing to take cognizance of the case against the accused, though in assessing evidence against them he may take the factor of delay in consideration.
3. For reasons stated above, the reference isaccepted and the First Class Magistrate at Biora isdirected to take cognizance of the Challan now putup against Gulab, Halker and Onkar. This orderwould not in any way prevent the Magistrate fromreleasing the accused on bail, should he think it proper to do so.