K.D. Sharma, J.
1. This is a reference made by the learned Additional Sessions Judge No. 2, Jodhpur, with a recommendation for setting aside the order of the learned Munsiff Magistrate, Jodhpur District, Jodhpur, dated 4th July, 1972 and for directing him to comply with the order passed by his predecessor-in-office (i.e. the Additional Sessions Judge No; 2 Jodhpur) on 17th February, 1972, without taking into consideration the statement of Mst. Hira which she had given in some other case.
2. The relevant facts giving rise to this reference may be briefly stated as follows. One Khinva Ram son of Salu Ram Jat, resident of Parasla lodged a first information report with the police at police station, Osian, on 18th April, 1971, that the non-petitioner Ala Ram had robbed his wife Mst. Hira of her silver ornaments, i.e. a pair of silver 'Karis', a pair of silver 'Karas', one silver 'Hansali', a pair of 'Karas' worn on hands and one 'Bor', of the value of Rs. 650/-. The incident of robbery was alleged to have takea place on Cnet Sudi 2 Smt. year 2028. On the basis of this report the Station House Officer, Osian, registered a criminal case under Section 392, IPC and conducted the usual investigation. After completing the investigation, the Station House Officer submitted a charge sheet for the offence of robbery against the non-petitioner in the court of Munsiff-Magistrate, Jodhpur District, Jodhpur, who, after going through the relevant record, refused to take cognizance of the case: vide his order dated 26th August, 1971, and cancelled the bail bonds of the non-petitioner. Aggrieved by this order the State filed an application in revision in the court of Sessions Judge, Jodhpur, from where the case was transferred for disposal to the court of learned Additional Sessions Judge No. 2, Jodhpur. The learned Additional Sessions Judge vide her order dated 17tb February, 1972, accepted the revision-petition and sent the case back to the learned Magistrate for further inquiry in accordance with law. The learned Munsiff Magistrate, however, again refused to take cognizance of the case: vide order dated 4th July, 1972 because in his opinion no case of robbery was made out against the non-petitioner. For arriving at the above conclusion he relied upon a certified copy of the statement of Mst. Hira, which was alleged to have been given by her in the court of the Munsiff Magistrate, Jodhpur District, Jodhour, in some other case (Padma v. Koja, Criminal Case No. 172 of 1971) pending in his court. Against this order of the learned Magistrate the State went in revision and the learned Additional Sessions Judge, Jodhpur, heard the revision petition and came to a conclusion that the learned Magistrate committed a grave error in taking into consideration the certified copy of the statement of Mst. Hira, which she had given out in some other case (as stated above) relating to this incident and that he should have complied with the previous order of that court directing further inquiry into the case. He, therefore, has reported the matter for the orders of the High Court with a recommendation that the order passed by the learned Magistrate on 4th July, 1972, be set aside.
3. I have carefully gone through the record and heard the arguments advanced by the learned Counsel for Ala Ram and the learned Deputy Government Advocate. The main point that arises for consideration in this case is whether the order passed by the learned Magistrate on 26th August, 1971, was as order of discharge under Sub-section (2) of Section 251A. Cr P.C or whether it was an order of refusal to take cognizance of the case under Section 190(1)(b). The learned Additional Sessions Judge, vide her order dated 17th Feb. 1972 treated the crier of the learned Munsiff-Magistrate dated 26th Augusts 1971 to be an order of discharge and interferred with and set it aside in revision on the ground of its being incorrect and improper Thereafter when the learned Magistrate again refused to take cognizance of the case, the learned Additional Sessions Judge No. 2, Jodhpur, in his order of reference clearly stated that the order dated 26th August, 1971 was an order of discharge falling within the ambit of Sub-section (2) of Section 251-A. Cr. P.C. and that it was revisable under Section 436, Cr. P.C. and that the learned Magistrate ought to have complied with the order of the revisional court From a bare perusal of the orders of the learned Magistrate dated 26th August, 1971 and 4th July, 1972, it appears that no order had been passed for initiating proceedings against the non-petitioner under the provisions of Section 190 of the Criminal Procedure Code. Hence these orders could not be held to have been passed under Sub-section (2) of Section 251-A. Cr. P.C. These orders now complained of must be taken to be the orders refusing to initiate proceedings under Section 190, Cr. P.C. upon a report made in writing by a police officer. An act of taking cognizance is a judicial act which signifies that the court had applied its mind to the offence with the intention of initiating judicial proceedings against the accused in respect of the offence. In order to find out whether cognizance has been taken in any particular case or not, it has to be seen whether a court has applied its mind to the offence in its judicial capacity In the present case it is evident from the orders of the learned Magistrate that he had not applied his mind to the offences mentioned in the police report with the intention of initiating judicial proceedings against the non-petitioner in respect of that offence. Therefore, I have no hesitation in holding that the case had not reached the stage at which action should be taken under Section 251-A. (2), Cr. P.C. The learned Additional Sessions Judge committed an error in holding that the two orders passed by the learned Magistrate on 26th August, 1971 and 4th July,1972 were orders of of discharge and that they were revisable by him under Section 436, Cr. P.C.
4. The next question that arises for consideration is whether the kerned Magistrate was bound to take cognizance of an offence upon a report in writing made by the police officer in this case. It is contended on behalf of the non- petitioner that the expression 'may take cognizance of any offence' used in Sub-section (1) of Section 190, Cr. P.C. clearly indicates that it is not imperative on a Magistrate to take cognizance of an offence even if there is no material before him to show that an offence has been committed by a person and that the Magistrate is bound to take cognizance only when a report in writirg made by any police officer discloses an offence committed by a certain person. In support of the above contention reliance has been placed on a decision of the Supreme Court in Gopal Das v. State of Assam AIR 1961 SC 986, wherein their Lordships were pleased to make the following observations in this regards:
We cannot read the provisions of Section 190 to 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. We are unable to construe the word 'may' in Section 193 to mean 'must'. The reason is obvious. A complaint disclosing cognizance 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 XV of the Code.
The learned Additional Sessions Judge has made an attempt to distinguish this authority of the Supreme Court on the ground that it relates to a case where the Magistrate did not take cognizance of the offences mentioned in the complaint to be sent to the police for investigation. Of course the facts before their Lordbhips of the Supreme Court were that that the Additional District Magistrate without taking cognizance of any offence staled in the complaint sent it under Section 156(3), Cr. P.C. to the police for investigation, but while interpreting the word 'may' used in Section 190, Cr. P.C. their Lordships clearly observed that the word 'may' in Section 190, cannot be construed to mean 'must'. These observations equally apply to cases instituted otherwise than upon a complaint. It is, therefore, essential under Section 190(1)(b) that a report in writing made by any police officer must contain a statement of facts which constitute an offence. If the report made by the police officer in writing does not disclose the facts constituting the offence or offences, any cognizance by the Magistrate on such a report is illegal. Likewise the Magistrate is empowered to take cognizance of any offence under Clause (c) of Sub-section (1) of Section 190. Cr P.C. only if he receives an information from any person other than a police officer or if he acts upon his own knowledge or suspicion that such offence has been committed. Reliance in support of my above view may be placed on the following authorities: Badamilal v. The State AIR 1955 Bhopal 20, In re Shivlingappa Bhagappa AIR 1930 Bom 372 and Sonia v. The State 1952 RLW 297. Thus the position of law that emerges is that if the report of the police contains a statement of facts which constitute an offence a Magistrate under Section 190, Cr. P.C. a Magistrate is not justified in refusing to take cognizance of such offence, unless cognizance is barred by any provisions of law. If, on the other hand, the report fails to comply with either of the provisions of Section 173(1)(a) or Section 190(1)(b), Cr P. C and does not prima-facie show that an offence has been committed by a person, the Magistrate is not empowered to take cognizance on such police report.
5. The last question that remains to be considered is whether the report in writing made by a police officer in this case complies with the essential requirements of Section 173(1)(a) or Section 190(1)(b), Cr. P.C. From a bare reading of the report it is evident that the allegations against the non-petitioner were that he robbed Mst. Hira of her silver ornaments and that the ornaments were recovered from his possession at his instance in consequence of his information recorded under Section 27 of the Evidence Act. The police officer has submitted all the relevant documents and statements of the witnesses which he had prepared and recorded during the course of investigation. In his report he has clearly stated that upon investigation he had arrived at a conclusion that the non-petitioners had committed an offence punishable under Section 392, Indian Penal Code. In view of these prima-facie allegations made in the report, the learned Magistrate was not justified to decline to take cognizance of the offence upon the police report. The learned Magistrate appears to have arrived at a conclusion that the police report did not prima-facie disclose commission of any offence on the grounds that the first information report of the incident was lodged with the police after considerable delay of about 20 days for which no explanation was put forth by the prosecution and that in a subsequent statement recorded by him in another criminal case No. 172 of 1971 Padma v. Koja; Mst. Hira alleged to have been robbed of her silver ornaments by Booma's wife with the help of Koja A certified copy of the subsequent statement made by Hira in the aforesaid criminal case was produced by Ala Ram accused before the learned Magistrate. The learned Magistrate took this statement into consideration and refused to take cognizance because in his opinion this subsequent statement clearly proved the innocence of the non-petitioner and implicated some other persons in the commission of the crime of robbery. It will not be out of place to mention that this deposition given by Mst. Hira may be admissible against her in this case if it is proved that she was the person who had given out this statement Her identity as the maker of this statement must first be established before a presumption allowed by Section 80 of the Evidence Act could be made In my opinion, she may be cross-examined in regard to this statement and if she denies to have given it out, she may be confronted with and contradicted by the relevant portions thereof. The learned Magistrate merely referred to the admissions contained in this statement and presumed them to be true without insisting upon the proof as to the identity of the maker thereof. If there is delay in making the first information report, its effect on the prosecution case would be considered at the proper stage in the light of the explanation, if any, given out by the prosecution. Similarly the alleged statement of Mst. Hira given in another case relating to this incident may be used at the proper stage to discredit her testimony. The order of the learned Magistrate refusing to take cognizance on the police report is, therefore, not proper and is liable to be set aside.
6. Consequently, I accept the reference but on the grounds other than those mentioned by the learned Additional Sessions Judge No. 2, Jodhpur and quash the order of the learned Magistrate and send the case back to him for necessary action according to law.