J.D. Jain, J.
(1) The facts giving rise to this petition under Section 482 of the Code of Criminal Procedure (for short 'the Code') are that the petitioner-GK. Chugani is son-in-law of one Shri D.M. Waswani. The respondent-Smt. Dhanwanti claims to be the legally wedded wife of Shri Waiwani. On 8th June 1982, the petitioner instituted a complaint against the respondent under Section 506(2)(2) read with Section 507, Indian Penal Code (for short 'IPC'). It was contended that the respondent had been sending threatening calls on telephone and instigating her associates to make such threatening calls to him and members of his family for about a year. The motive for this was alleged to be the pendency of good deal of litigation between the family of the petitioner on the one hand and the respondent- Smt. Dhanwanti and her associates on the other. It wai pointed out that Smt. Kamla Chugani, wife of the petitioner and Maj. Baldev Chaman, son-in-law of the petitioner were cited as witnesses in some of the criminal cases.
(2) The Metropolitan Magistrate passed an order under Section 156(3) of the Code directing the Station House Officer of the Police Station concerned to investigate the case and submit his report on or before 29th July 1982. On completion of investigation the Sho submitted a charge-sheet under Section 173 of the Code stating that a prima facie case under Section 507 Indian Penal Code was made out against her. Acting on the said report, the learned Magistrate directed vide order dated 7th September 1982 that summons be issued against the respondent to face trial for commission of an offence punishable under Section 507 Indian Penal Code However, on 10th January 1983, the learned Magistrate observed that he having taken cognizance of the offence under Section 190(c) of the Code upon an information received from a person other than a police officer the procedure laid down in Section 191 had to be followed. So, he informed the respondent that she was entitled to have the case enquired into or tried by another Magistrate. The respondent had earlier moved an application for the transfer of the case to some other court of competent jurisdiction on this very ground. Hence, the learned Magistrate referred the case to the Additional Chief Metropolitan Magistrate who transferred it to the court of Sn. T.D. Keshav and the parties were directed to appear before the transferee court. Admittedly, both the parties appeared in the transferee court on 11th January 1983 ax per directions of the Additional Chief Metropolitan Magistrate but the Presiding Officer having gone for the purpose of identification parade, they were informed by the Reader of the court to appear on 12th January 1983. On that day, the petitioner failed to appear although the case was called thrice. However, the respondent appeared through her counsel and her personal appearance was exempted for that day. Eventually, thereforee, the complaint was dismissed for non-prosecution by the petitioner.
(3) Feeling aggrieved, the petitioner moved an application for restoration of the complaint but his application was rejected on the short ground that in view of the decision of the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh, : 1978CriLJ187 , he was not competent to restore the complaint as the order of dismissal amounted to a final order. Reliance was also placed in this context on a decision of a learned Single Judge of this Court in Cr. M. (M) 228/82, Mst. Shakkat Bano & Others v. Parveen Suri & Otheri, decided on 4th January 1983. The instant petition is directed against the aforesaid order dated 2nd August 1983 of the learned Metropolitan Magistrate rejecting the application of the petitioner for restoration.
(4) The learned counsel for the petitioner has canvassed with great fervour that the entire proceedings in this case have proceeded on a wrong legal premises inasmuch as the learned Magistrate fell into grave error in observing in his order dated 10th January 1983 that lie had taken cognizance of the case under Section 190(c) of the Code upon an information received from a person other than a police officer. The real position, however, was that the learned Magistrate did not take cognizance of the corn plaint when it was presented to him on 8th June 1982 and instead he straightway forwarded the same to the Sho of the concerned Police Station for investigation and report under Section 156(3) of the Code Subsequently he took cognizance of the case on the basis of the police report when a charge-sheet under Section 173 of the Code was submitted by the Investigating Officer. Hence, the cognizance had, in fact, been taken under Section 190(1)(b) of the Code upon a police report rather than under Section 190(1)(c) of the Code upon information received from any person other than a police officer as has been wrongly stated by him in his order dated 10th January 1983 So, he contends that neither Section 249 nor Section 256 which are analogous, in that they provide for dismissal of the complaint where the complainant absents himself on the date of hearing could be invoked and the order dated 12th January 1983 was bad in law on this short ground In the alternative he has urged that even if cognizance had been taken under clause (c) of Section 190(1) of the Code, as observed by the Magistrate in his order dated 10th January, 1983, he was not competent to dismiss the complaint under either of the aforesaid provisions of the Code. The submission made, thereforee, precisely is that the order of dismissal in default having been passed without jurisdiction was void ab initio and it was opn to the Magistrate to rectify the legal error committed by him by restoring the case to its original position.
(5) On a consideration of the matter I find great force in this submission. The legal position on the subject has been elucidated at length by the Supreme Court time and again in a long catena of its decisions Under Section 190 of the Code a Magistrate of competent jurisdiction may take cognizance of any offence (a) upon receiving a complaint of fact* which constitute such offence ; (b) upon a police report of inch facts ; and (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. So, the question would arise as to what is meant by taking cognizance. This question too is no longer rest integra as it has been decided by several decisions of the Supreme Court. As far back as 1951, it was held by the Supreme Court in R.R. Chart v. The State of Uttar Pradesh, : 1951CriLJ775 :
'...TAKINGcognizance docs not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence.'
(6) The court endorsed the following observation of Justice Das Gupta in the case of Supdt.di Remembrancer of Legal Affairs, West Bengal v. Atani Kumar, : AIR1950Cal437 . It was to the following effect :
'What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has been cognizance of any offence under Section 190(1)(a), Criminal Procedure Code . 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 Section 200 & thereafter sending it for inquiry & report under Section 200. 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.'
(7) The legal position was further elucidated in Narayandat Bhagwandaa Madhavdas v. The State of West Bengal, : 1959CriLJ1368 . It was observed that :
'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 his mind to the contents of the petition but must have one so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter (i.e. Chapter Xv of the Code)-proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202.'
(8) This legal position has been approved and reiterated by the Supreme Court in several subsequent decisions. (See Devarapalli Lakshminarayana Reddy & others v. V. Narayana Reddy and others, : 1976CriLJ1361 , Tula Ram and others v. Kishore Singh. : 1978CriLJ8 and H.S Gains v. The State (Union Territory of Chandigarh), : 1980CriLJ1308 In the last mentioned case it has been authoritatively laid down that the Magistrate need not necessarily take cognizance of the complaint as soon as it is presented to him but he has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200 and then proceed in accordance with the provisions contained in the subsequent Sections of Chapter Xv viz. Sections 202 & 203. On the other hand, in the very first instance on receipt of a complaint the Magistrate may instead of taking cognizance of the offence order an investigation under Section 156(3), the police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 190 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. Thus, a Magistrate who on receipt of a complaint orders an investigation under Section 156(3) and receives a police report under Section 173(1) and thereafter takes cognizance of the offence on the basis of the police report doc so under Section 190(1)(b). H.S.Bains (supra) is an authority on all fours on this point. Likewise in Devarapalli Lakihmmarayana Reddy (supra) it was observed by the Supreme Court that :
'...INthe case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter Xv, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further than an order made under Sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173.'
(9) The law is thus well settled that a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190 & 200. This is precisely what the Magistrate did in the instant case. Further he took cognizance of the offence on the basis of the police report under Section 173 of the Code. Thus, by no stretch of reasoning can it be said that the cognizance was taken either under clause (a) or under clause (c) of Section 190(1). It was evidently under clause (b) thereof. So, the mere fact that in his order dated 10th January 1983 the learned Magistrate mis-directed himself by holding that cognizance had been taken by him under clause (c) of Section 190(1) would not make it so. As a necessary corollary, thereforee, it would follow that the order of dismissal of the complaint as such was bad in law. It is true that the case was not being prosecuted by the Public Prosecutor as it ought to have been done and the parties appeared before the Magistrate as if it were a complaint case. But that was obviously on a mistaken view of the law and it would not in any way detract from the correct legal position that cognizance had. been taken under clause (b) of Section 190(1) on the basis of the police report. The order of dismissal, thereforee, being void ab initio and a mere nullity could be challenged by the aggrieved party anywhere and everywhere and even the Magistrate was entitled to ignore the same and rectify the glaring error which was certainly of a serious nature resulting in grave miscarriage of justice. By no stretch of reasoning such an order could be called a judicial order or a final order within the meaning of Section 362 of the Code. Consequently the prohibition contained in Section 362 of the Code against recall or alteration of a judgment or a final order by a criminal court cannot operate in the instant case. In other words, the ratio decidendi in Bindeshwari Prasad Singh or in Mit. Shakkat Bano (lupra) adverted to by the learned Magistrate would not be applicable to the facts of this case. I have discussed this aspect of the matter at length in Mata Din etc. v. Ram Babu & another, Cr. Ref. No. 1/84 decided by me on July 1985 and, thereforee, I need not dilate upon the same question over again. Hence, the impugned order is liable to be set aside on this short ground.
(10) There is yet another aspect of the matter which is equally important. As stated above, both the parties were directed by the Additional Chief Metropolitan Magistrate to appear forthwith before the court of Shri T.D. Keshav and admittedly they did so. Since the Presiding Officer had gone out for conducting a test identification parade, the Reader of the court told them to appear on the next following day. There is, however, no such written order/memo on record. Thus, by no stretch of reasoning 12th January 1983 could be taken or deemed to be a date for hearing of the case and it was obviously meant for passing a proper order by the court. An offence under Section 507 is punishable with imprisonment for two years in addition to the punishment awardable under Section 506 Indian Penal Code Evidently, thereforee, the instant would a warrant case as defined in Section 2(x) of the Code and assuming it to be a complaint case. Section 249 of the Code would be applicable in the event of the complainant being absent The said Section clearly contemplates that absence of the complainant may result in dismissal of the complaint if it is posted for hearing So, looked at the matter from this angle too, the order dated 12th January 1983 dismissing the complaint in default is bad in law. The legal position will remain the same even if the instant is held to be a summons case, for Section 256 can be invoked only if the complainant does not appear either on the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned. In the instant case the accused having already entered appearance the case could be dismissed in default only on a date fixed for hearing and not otherwise.
(11) Before concluding I may also make a passing reference to yet another submission made by the learned counsel for the respondent namely, that the punishment provided in Section 507 Indian Penal Code cannot be awarded unless there hag been a conviction under Section 506 i.e to say unless the threat amounted to an offence of criminal intimidation. It is for the reason that punishment under this section is to be in addition to the punishment awardable under Section 506 On a plain reading of Section 507 which opens with the words 'whoever commits the offence of criminal intimidation' it is difficult to take exception to the view propounded by the learned counsel for the respondent. Hence, punishment cannot be awarded to an offender under this Section unless he is found guilty of committing an offence under Section 506 because the offence under Section 507 is only an aggravated form of the offence of criminal intimidation, the aggravation consisting of the threat being communicated anonymously or after having taken precautions to conceal the name or abode of the offender. Reference in this context be made to Queen Empress v Mangesh Jivaji, (1887) 2nd Ii Born 376 (D. B.). However, the contention raised by the learned council for the respondent is premature inasmuch as the stage of framing the charge and for that matter finding the respondent guilty of offence of criminal intimidation has not yet arrived. The respondent has been summoned for an offence graver than that contemplated in Section 506 and, thereforee, it cannot be readily assumed at this stage that the respondent cannot be convicted of an offence of criminal intimidation. This, this submission cannot be looked into at this stage.
(12) The upshot of the whole discussion, thereforee, is that the impugned order suffers from an apparent error of law. Hence, it cannot be sustained. Even the order of dismissal dated 12th January 1983 being bad in law must necessarily be set aside in order to avert grave miscarriage of justice. Needless to lay that the said order is revisable under Section 397(1) of the Code which in terms confers power of suo motu revision on the High Court. The order dated 12th January 1983 too, thereforee, is set aside in the interest of justice, (see Municipal Corporation of Delhi v. Girdhari Lal Sapuru (k Others. : AIR1981SC1169 ). This revision petition is accordingly allowed and the parties are directed to appear before the concerned court on 31st July 1985 for further proceedings.