S.N. Deedwania, J
1. This petition under Section 482, Cr P.C. is against the order dated October 26, 1978 of the learned Sessions judge Pratapgarh, whereby certain objections of the petitioners as to the legality of their commitment were overruled.
2. Briefly, stated the facts relevant for disposal of this petition are these. On 5-7-77, in the morning Mohanlal and Bothlal along with seven other persons went to the field of Heeralal and picked up a quarrel. They gave a beating to Heeralal and his wife Mst. Geetabai. Heeralal succumed to his injuries. A case under Section 302 and 307, IPC was registered. The police filed a chargesheet against Prabhulal, Davaram, Ratanlal, Ramlal, Geu(sic)ilal, Bhanwarlal, Mathuralal, Shivlal and Sohanlal for the aforesaid offences. The police, however, did not challan petitioners Bothlal, Mohanlal and Heeralal. Uda complainant felt aggrieved and filed a petition against all the accused including the three petitioners. Learned Magistrate on this protest petition observed that from the challan and the police papers, the offence was also disclosed against Mohanlal and Both Lal. Leaned Magistrate, therefore took cognizance against them. However, Heeralal was not proceed with. Bothlal and Mohanlal then filed a petition Under Section 482. Cr. P.C. in the High Court, which was disposed of by order dated January 16, 1978. The petition was accepted with the following observations:
It will not, however, be out of place to mention that in view of she clear provisions contained in Sub-section (2) of Section 210, Cr. P.C. for procedure to be followed when there is a complaint case and police investigation in respect of the same offence I think it proper to pass an order that the Judicial Magistrate Nimbahera, shall inquire into together the complaint case and the case arising out of the police challan as if both the cases were instituted on a police report.
The application under Section 482, Cr. P.C. is, therefore,, accepted and the impugned order passed by the Judicial Magistrate, Nimbahera, on 7th November, 1977, taking cognizance and issuing warrant; against the petitioners is set aside arid the case is sent back to him for inquiry into the matter according to law and in the light of she observations made above.
The learned Magistrate, therefore, made an inquiry in the complaint and along with the seven other accused committed the three petitioners to the Sessions.
3. I have heard the learned Counsel for the petitioners and the learned Public Prosecutor for the State and perused the record of the case carefully.
4. It was argued by the learned Counsel far the petitioners that the learned Magistrate Had already taken cognizance of the offence on the charge sheet filled by the police. He, therefore, could not cake cognizance of the offence over again on the complaint of Uda, complainant and, therefore, could not commit the three petitioners as the challan and police papers did not prima facia disclose their involvement in the crime as held in the order rated January 16, 1978 by this Court.
5. On the other hand, it was argued by the learned Counsel for the non-petitioners that there was no bar against taking the cognizance again if the police chose to let of some of the accused and did not faithfully collect the evidence during the course of investigation. The aggrieved complainant could cot be without any remedy in such a contingency.
6. I have considered the rival contentions carefully. The arguments advanced on behalf of the petitioners are based on the following observations in the case of Raghubana Duby v. State of Bihar : 1967CriLJ1081 :
Similarly, Section 207(b) can only apply if the case was instituted otherwise than on a police report. On the facts of this case it is quite clear that the case does not fall within Section 190(1)(a) or Section 190(1)(c) because the Sub-Divisional Magistrate bad taken cognizance of the offence on April 5,1961. But, says Mr. Latin, that though it is true that cognizance was taken on April 5,1961 the cognizance was taken of the office as far as other accused were concerned and net as tar as the appellant was concerned; as a matter of fact that appellant had been rightly or wrongly discharged. In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an off nee and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police tome other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taken cognizance of an offence. As pointed out by this Court in 1965(1) SGR 269; AIR 1965 SG 1185, the term 'complaint' would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190(1)(a) on the basis of a complaint of facts it would be instituted even though persons who had committed the offence were not known at that time The same position prevails, in out view, under Section 190(1)(b).
7. I have considered the authority carefully. No doubt, the cognizance is taken of an offence and not of the offenders. Once the cognizance of an offence is taken, it is the duty of the Magistrate to find out who the offenders really are. However, this authority no where lays down that the cognizance cannot be taken against those offenders who were not sect up for trial by the police and it is only possible to proceed against them on the basis of charge sheet and papers filed along with it. It was thus observed in Mukania and Anr. v. Achalia and Ors. , though slightly for in different context.
It follows, therefore, that if a Magistrate has both a complaint and a police report before him about the same offence, he can lake cognizance of that offence on the basis of both. The further question whether after taking cognizance on the basis of both, he can amalgamate them and hold a joint trial of the accused named in the police repot t as well as in the complaint depends upon Section 239 of the Criminal P.C. and the discretion of the Magistrate, which has to be exercised according to the circumstances of each case.
8. It was thus observed in the following cases:- (1) Khetra Basi Samal and Anr. v. The State of Orissa : 1SCR880 .
Where, in respect of offences committed by several accused persons in the course of the same transaction two cases-one instituted against some accused initially upon a police report and the other instituted against remaining accused upon a complainant--are clubbed under Section 239 and all accused are acquitted then an appeal against the acquittal of accused, against whom cognizance was taken upon the police report, will not lie at the instance of the complainant under Section 417(3) but will only be maintainable if preferred by State Government under Section 417(1). The two cases retain their individuality except for the convenience of the trial. The cases being separate cases of which cognizance was taken separately the mere clubbing of the two cases together for the purposes of trial will not alter the nature of the oases so as to effect their appealability under Section 417. If appeal is not preferred by the State the complainant may invoke the powers of High Court under Section 439 if proper grounds for revision are present.
12. Bhimappa Bassappa Bhu Sunnavar v. Laxman Shivarcyappa Samagrudo and Ors. : 1970CriLJ1132 .
Certain house was set on fire to cause loss to its owner B. On a report the police arrested respondents 1 and 2 and submitted a charge sheet against them in the Court of the Magistrate. B was dissatisfied that the police had rot prosecuted one M, respondent 3, also and he filed a complaint in the same Court in which he charged the two respondents with respondents with the same offence of mischief by fare but with the aid of Section 34, Penal Code. The Magistrate inquired into the two cases together and finding a prima facie case established committed the first two respondents and the third respondent separately to the Court o Sessions. The two sessions cases were separately numbered. The Sessions Judge held the respondents not guilty and acquitted them. The appellant then applied under Section 417(3), Criminal P.C. for special leave to appeal against the acquittal of the three respondents.
Held that there could foe no manner of doubt that one of the cases was instituted on the report of a police officer and the other on the complaint of the complainant. These could be ns question of merger because the identity of the two cases was maintained right up to the end of the Sessions trial. The police did not present a charge-sheet against respondent No. 3 and his trial could be said to be in the other case and not in the case filed by the police. In this view it was plain that respondent No. 3 was entitled to move the High Court for special leave under Section 417(3). Criminal P.C. in his own case.
9. 1 refer to these cases to show that it is possible to proceed against some of the accused on a police report and against the others on a private complaint, though both the private complaint and the police challan relate to some offerces. Numerous cases from Law Journaly can easily be cited, where the cognizance in respect of the same offence with regard to different set of the accused was taken on a police report and also on a private complaint. I am therefore of the view that the learned Magistrate committed no illegality in proceeding against the petitioners on the basis a private complaint. I could find nothing wrong in the order of the Magistrate committing them to fact trial. In this view of the matter, I find no force in the petition.
10. In the result, this petition being devoid of any force is dismissed.