Pakenham Walsh, J.
1. This is a petition to revise an order of the learned Sessions Judge of West Godavari directing further enquiry into a complaint of kidnapping. This complaint of kidnapping had been originally made to the Police on 15th March, 1931. The Police sent a referred charge-sheet to the Sub-divisional Magistrate who ordered the Police to put in a charge-sheet. In reply to this the Police again put in a referred charge-sheet; meanwhile the Sub-divisional Magistrate who passed the order directing a charge-sheet to be put in was succeeded by another. The latter agreed with the Police and by his order on 27th June, 1931, directed the case to be treated as one of a civil nature. An application to revise this order was made before the Sessions Judge who ordered further enquiry into the complain and it is against this order that this revision petition has been filed.
2. The matter really turns upon the question as to whether the Sub-divisional Magistrate who directed the Police to put in a charge-sheet took cognizance of the case or not. The view of the learned Sessions Judge was that he took cognizance and that therefore the case could not be disposed of by the order of his successor accepting the referred, charge-sheet and remained pending. It is agreed both by Mr. Jayarama Aiyar who argued the case for the petitioner and by Mr. Bewes for the Crown - and it is quite obvious--that the order directing the Police who had put in a referred charge-sheet to put in a charge sheet was not a legal order. The Police must be allowed to form their own opinion of a case when submitting their report and a Magistrate cannot ask them to change their opinion merely because he does not agree with them. In this case the Police were quite entitled to do what they subsequently did, and I think they were right, when they still entertained their former opinion, to submit another referred charge-sheet instead of a charge-sheet. It is clear from the Code and is not disputed that there are only two matters which the Sessions Judge can revise; under Section 436, Criminal Procedure Code, he can direct further enquiry to be made into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged.
3. The first point urged for the petitioner is that there was no complaint before the Magistrate. With that contention I agree. There are only three ways in which a Magistrate can take cognizance of an offence and they are described in Section 190, Criminal Procedure Code:
(a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; and (c) upon information received from any person other than a police officer, or upon his own knowledge, or suspicion, that such offence has been committed.
4. Admittedly neither (a) nor (c) applies to this case. Turning to (b), the words 'such facts' have to be read with clause (a), that is, as being 'facts which constitute such offence'. A Police referred charge-sheet, where, as in this case, it is reported that there has been no offence committed cannot possibly be called a report on facts which constitute such offence. The learned Sessions Judge has relied on three rulings in 2 Weir - one case reported in 2 Weir 119 and two in 2 Weir 246. It may be noted that none of these cases decided the matter in question. In the first case what was actually decided was that a Magistrate who agreed with the view of a complaint taken by the police officers that there was no sufficient ground for launching an investigation need not send for and examine the complainant before dismissing the complaint. That is still good law, if we use 'complaint' as meaning complaint to the Police. But the remark relied on and which finds a place in the heading is that a Police report (apparently of this sort) would give jurisdiction to a Magistrate to enter upon an enquiry. This decision however was under the Code of 1872. There is no definition there of 'complaint' and the section which was being dealt with - Section 141 - ran
A Magistrate may entertain a complaint of an offence, whether preferred directly by the complainant, or on report of a police officer, and may issue process, in the manner hereinafter prescribed, to compel the appearance of persons accused of such offences.
5. In Section 4(a) of the Code of 1882 the word 'complaint' was first defined and that definition stands also in the Code of 1898 as amended, Section 4(h), which runs:
'complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer
6. Hence the obiter remarks in 2 Weir 119 are not applicable to cases under the present Code. The next case is 2 Weir 246 - H.C. Proceedings, dated 24th July, 1875, No. 1552. What was held there was that a complaint made in the form of a police report may be dismissed without examining witnesses, if the facts stated in the report constitute no offence. That is still good law. This was again under the Code of 1872 and the obiter remarks are therefore no authority in the matter now under consideration. The next case is on the same page - Criminal Revision Case No. 162 of 1895. It follows the previous cases on the same point and says that if the complaint had been made by a Police charge-sheet it was unnecessary to examine the complainant. I think it is clear that the word 'complaint' here is loosely used, particularly as the judgment is very brief and is rested upon the two cases quoted above.
7. The learned Public Prosecutor did not dispute that there was a referred charge-sheet by the Police which did not constitute a complaint; but he argued that, though the Sub-divisional Magistrate's order, dated 25th April, 1931, which directed a charge-sheet to be filed was not correct, yet the force of the whole order amounted to the Court taking cognizance. As observed in Ananta Ram Ternary v. Sheikh Altab Sarkar (1913) 17 C.W.N. 795 the expression 'to take cognizance' has not been defined in the Criminal Procedure Code and it is difficult to ascertain at what precise stage of a case cognizance is said to be taken. The learned Sessions Judge relied on Emperor v. Sourindra Mohan Chuckerbutty I.L.R. (1910) 37 C. 412 where it is said that 'taking cognizance does 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.' The facts of that case are different from those of the present case. In that case there had been a transfer of the case from the Sub-divisional Magistrate to the Headquarters Magistrate. That transfer necessarily implied taking cognizance of the offence. I will set out the order of the Sub-divisional Magistrate in the present case, dated 25th April, 1931. It runs:
The parties are Hindus. Under Hindu Law the father is the lawful guardian of his children. A mother cannot claim right to the custody of her legitimate children adversely to the father. As matters stand two persons are alleged to have taken away the child without the consent of the guardian (father) in whose custody the child was on the date of the offence. What their defence is, is not the consideration. The general trend of the evidence recorded is also in favour of the prosecution story. There can be no question of civil dispute in a case of this sort. The Section H.O. is therefore directed to file a charge-sheet in this case.
8. No doubt in the words of Emperor v. Sourindra Mohan Chuckerbntty I.L.R. (1910) 37 C. 412 the Magistrate applied his mind to the case to a certain extent, but what he really did may be interpreted in one of two ways : he either told the Police, 'Think again and see if you cannot come to a different conclusion'; or else he meant, 'I will take cognizance if you file a charge-sheet'. It does not appear to me that either of these actions of the Magistrate by which he referred the matter to the Police for a fresh final report can be called 'taking cognizance'. Although the terms 'charge-sheets' and 'referred charge-sheets' are in constant use, it is well known that no such terms are to be found in the Criminal Procedure Code and even when it was amended in 1923 nothing was done to bring the practice into closer contact with the Procedure Code itself. The Code does of course provide for one sort of referred charge-sheet; that is where the Police see no sufficient grounds for investigation. This falls under Section 157(1)(b), which says,
if it appear to the officer in charge of a police station that there is no sufficient ground for entering on an investigation he shall not investigate the case.
9. This is followed by a proviso that
in each of the cases mentioned in clauses (a) and (6) of the proviso to Sub-section (1), the officer in charge of the police station shall state in his said report his reasons for not fully complying with the requirements of that Sub-section, and in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Local Government, the fact that he will not investigate the case or cause it to be investigated.
10. This obviously does not meet the contingency in which the Police have investigated and find the complainants' case not made out or the offence undetectable. Although Section 173 which deals with the final report of the Police, does not appear to contemplate anything but a report which leads to trial if the Magistrate approves of it, nevertheless, as the Police must send a report after investigation in every case, there is no other section under which a referred charge-sheet after investigation can be brought. I cannot therefore agree with the argument of the petitioner that Section 173 does not apply to a referred charge-sheet. It is well settled now that when the Police refer a case as false and the Magistrate orders it to be so treated this is not a judicial act. A complaint by the Court is not required to prosecute a complainant for making such a false complaint to the Police under Section 211 vide Bhimaraja Venkateswaruln v. Moova Bapula (1912) 15 I.C. 320 which has been confirmed by a Full Bench) and such an order is admittedly not revisable by the Sessions Judge under Section 436. From this it is fair to argue that any order other than proceeding under Section 203 by sending for the complainant or under Section 204 by issuing process is also not a judicial act, and consequently not capable of revision under Section 436. It is argued that the mere application of his mind by the Magistrate to the case amounted to taking cognizance. But even to accept a referred charge-sheet the Magistrate must apply his mind to the case and this is certainly not taking cognizance. Mere application of his mind will not therefore amount to taking cognizance of the offence.
11. In my opinion, therefore, the order of the Sub-divisional Magistrate, dated 25th April, 1931, did not amount to taking cognizance of the offence. His successor, therefore, in dealing with the matter when the Police again sent up a referred charge-sheet, was in the same position as if he had been dealing with the original report of the Police, and his order directing the case to be. treated as one of civil nature was not subject to revision by the Sessions Court.
12. The petition is therefore allowed and the order of the learned Sessions Judge is set aside.