Doman Yadav v. Manik Chand Yadav — 1968 DIGILAW 161 (PAT)

JUDGMENT : M.P. Verma, J. 1. This appeal has been filed under the provisions of Section 417(3) of the Code of Criminal Procedure, because all the eleven respondents who were tried for charges under Sections 147, 148 and 426 of the Indian Penal Code were acquitted by the Munsif Magistrate, 1st class, Gaya, on the 3rd March, 1966. The following facts leading to the, present appeal may be summarised as under. 2. In village Gangti, about nine miles away from police station Shergatty in the district of Gaya, lies plot No. 222 which was adjacent to the house of the appellant. In the plot, the appellant had grown vegetables as well as creepers of Kakari and Tarbuja and the plot had been fenced. On 10-6-1963 at about 8 A.M. it is alleged that all the respondent variously armed with Garansa, Bhala, Khanti, Lathi, etc. went there and started demolishing the fencing and Damaging vegetables and the creepers. When a protest was made by the appellant, the respondents assaulted him and thereafter respondent No. 2 and others began beating on the roof of the cowshed. Thereafter on the ORDER :of the respondent No. 1 (Manik Chand Yadav) respondent No. 4 (Saudagar Yadav) set fire to the cow-shed of the appellant and the result was that the thatch of the cow-shed was burnt. On hulla, the other P.Ws. of the case appeared and extinguished the fire and they also made protests to the respondents not to indulge in high-handedness. The appellant then went to the police-station and lodged the first information report. The police after investigating the case submitted a final report to the effect "True but accusation doubtful". The appellant then filed a protest petition before the Sub-divisional Magistrate, Gaya, who called for a charge-sheet from the police after perusing some connected records. The police, ultimately, submitted charge-sheet against the respondents under Sections 436, 426, 148 and 147 of the Indian Penal Code. The respondents then preferred a revision application No. 340 of 1963 against the ORDER :of the learned Magistrate calling for the charge-sheet, but the same was dismissed by the Sessions Judge of Gaya. Thereafter a commitment proceeding was started. The police, ultimately, submitted charge-sheet against the respondents under Sections 436, 426, 148 and 147 of the Indian Penal Code. The respondents then preferred a revision application No. 340 of 1963 against the ORDER :of the learned Magistrate calling for the charge-sheet, but the same was dismissed by the Sessions Judge of Gaya. Thereafter a commitment proceeding was started. The learned committing Magistrate found that there was no substantial material on the record to make out a prima facia case under Section 436 of the Indian Penal Code; so he directed that the case should be tried by the Magistrate only under Sections 426, 147 and 148 of the Indian Penal Code. The trial proceeded against the respondents under these sections and as stated before they were acquitted. 3. The appellant, thereafter, filed a special leave application (no. 83 of 1966) and the permission was granted. Thereafter this appeal was filed. 4. Mr. Awadh Kishore Pd. the learned Counsel for the respondents, raised a preliminary objection to the effect that as the criminal case was started upon a police report, this appeal was incompetent because such a remedy of appeal is confined only to those cases in which the proceeding are started upon a complaint, 5. The word "complainant", not being defined in the Code has to be interpreted in the light of the definition of the word "complaint" in Section 4(1)(h). Thus interpreted, a complainant would be a person who moved the Magisterial court by making certain allegations before it for taking action against a person who had infringed the laws. So, there cannot be any doubt as to which person is a complainant. The real thing, in my opinion, to be considered, is as to in what manner the Magistrate had taken cognizance of the offence, because the right under Section 417(3) of the Code of Criminal Procedure is limited to a case instituted upon a complaint i.e. to say, wherein takes cognizance of the offence upon receiving a complaint of facts which constitute as such an offence. The expression "taking cognizance" has not been defined in the Code; but it can be pointed out; that cognizance is taken to an offence as soon as the court competent for the purpose applies its mind to the offence with the intention of initiating judicial proceeding against the offender in respect of the alleged offence. The expression "taking cognizance" has not been defined in the Code; but it can be pointed out; that cognizance is taken to an offence as soon as the court competent for the purpose applies its mind to the offence with the intention of initiating judicial proceeding against the offender in respect of the alleged offence. The difficulty arises when in a criminal case, there is a first information report lodged with the police and there is also a complaint on a protest petition filed by the complainant against the police report or enquiry by the police. Then only the question would arise whether the case was instituted upon Complaint or upon police report. In the present case I find that a copy of the first information report had been forwarded to the Sub-divisional Magistrate who perused the same on 5-6-1963 and waited for the final form. The final report was perused by the Sub-divisional Magistrate on 26-8-1963, and the ORDER :-sheet shows that before that day a protest petition had already been filed. On 18-10-1963, the learned Sub-divisional Magistrate perused the case diary and heard the learned lawyer for the informant as well as the Senior District Prosecutor. He, thereafter, passed an ORDER :that the police should submit a charge-sheet in this case. After some adjournments charge-sheet was received and cognizance was taken on 26-12-1963, against the person as per charge-sheet. The case was then transferred to Shri V. N. Mahoretra, Munsif Magistrate, who held commitment enquiry and ultimately dropped the charge under Section 436 of the Indian Penal Code directing further that the trial would take place for the other charges; It further appears from the ORDER :-sheet of the learned Magistrate that he followed the procedure for the trial of this case as provided by Section 251-A of the Code of Criminal Procedure. The Assistant District Prosecutor was directed from time to time to furnish the copies of documents to the defence and to produce the witnesses. Thereafter on 3-3-1963, he delivered JUDGMENT : acquitting the accused persons under Section 251-A (11) by giving benefit of doubt. In such circumstances, it must be held that this case had proceeded upon a police report and this was not a case instituted upon a complaint petition. The complainant was never examined on solemn affirmation when he filed his protest petition. In such circumstances, it must be held that this case had proceeded upon a police report and this was not a case instituted upon a complaint petition. The complainant was never examined on solemn affirmation when he filed his protest petition. The learned Counsel for the appellant as well as the respondents have cited a number of cases before me and I would, therefore, very briefly refer to them. At the outset it must be observed that the question whether a case was instituted upon a complaint or on a police report had to be decided on the facts and circumstances available in each case. In the case of Usman Gani v. Baramdeo Singh AIR1959Cal145 it was observed that when the complainant came to court with a petition of complaint but the Magistrate did not take cognizance on that complaint but referred it to the police and then on receipt of it from the police cognizance was taken. Then in those circumstances, it can not be held that the case was instituted on a complaint within the meaning of the expression in Section 417(3) of the Code. In the case of Promdas v. Lalloo Ram and Ors. AIR1961MP143 the facts are. somewhat different. In that case, the police had submitted a charge-sheet against two persons (Ramanath and Baijnath). Thereafter a petition was filed by the complainant on the basis of which four other persons were added as accused. The Magistrate did not examine the petitioner under Section 200 of the Code. The trial proceeded and in the end the persons who had been added as accused on petition of the complainant were acquitted. The Court held that the action against the accused acquitting them was taken in the course of the proceeding already instituted on the charge-sheet and so the complainant or the petitioner had no right to appeal under the provisions of Section 417(3) of the Code against the four acquitted persons. In the case of Harbans Singh v. Daroga Singh AIR1962Pat27 a Division Bench of this Court held that where a complaint case was amalgamated with the case instituted on the police charge-sheet the effect of the ORDER :of the amalgamation was that the complaint case was merged with the police case which alone retained its identity. In the case of Harbans Singh v. Daroga Singh AIR1962Pat27 a Division Bench of this Court held that where a complaint case was amalgamated with the case instituted on the police charge-sheet the effect of the ORDER :of the amalgamation was that the complaint case was merged with the police case which alone retained its identity. Hence it could not be said that the case had been instituted upon complaint within the meaning of Sub-section 3 of Section 417. In that case Harbans Singh had lodged a first information report on 12-1-1956, and a copy of the same was sent to the Sub-divisional Magistrate. While the police investigation was in progress, Harbans Singh filed a protest petition before the Sub-divisional Magistrate who learned it as a complaint and examined Harbans Singh on solemn affirmation. Another case was started on its basis. After some adjournments that case was amalgamated with the police case and in those circumstances it was held that the complaint case had lost its identity. In the case Kartar Singh v. Bajrangi Lall AIR1964Pat61 the complainant had come to the court of the Sub-divisional Magistrate with a petition of complaint but the Magistrate without examining him on solemn affirmation forwarded his petition to the police with a clear direction that the allegations disclosed a cognizable case and it was for the police to institute the case and conduct the investigation. Thereafter a charge-sheet was received and the case was tried. The learned Judge held that the case was instituted upon police report and as such the question of the application of Section 417(3) did not arise. In the case of Jamuna Singh and Ors. v. Bhadai Shah 1964CriLJ468 the Magistrate examined the complainant on oath under Section 200 and recorded the substance on it and then passed the ORDER :as follows : Examined the complaint on s.a. The offence is cognizable one. To S.I. Baikuntpur for instituting a case and report by 12-12-1965. This ORDER :would clearly be under Section .202 of the Code. It was further held that the fact that the learned Magistrate used the words "for, instituting case" did not make any difference. Once, therefore, when he took cognizance he could ORDER :investigation by the police only under Section 202 and not under Section 156(3). This ORDER :would clearly be under Section .202 of the Code. It was further held that the fact that the learned Magistrate used the words "for, instituting case" did not make any difference. Once, therefore, when he took cognizance he could ORDER :investigation by the police only under Section 202 and not under Section 156(3). The fact that the police treated the copy of the petition of complaint as a first information report and submitted charge-sheet against the accused persons could not make any difference. So when cognizance had already been taken by the Magistrate before he passed the above mentioned ORDER :, there was no scope of cognizance being taken afresh of the same offence after the police report had been received. In those circumstances, the court held that it was a case instituted on a private person's complaint and not on the police report. Similarly in the case of Sudhakar Das v. Dayanidhi Mohanty Sudhakar Das had lodged a first information report with the police on 16-6-1961, but there was some delay by the police in completing the investigation of the alleged theft of the coil, then Sudhakar Das filed a complaint petition in the court of the Sub-divisional Magistrate on 29-7-1961. The Magistrate examined the complainant on oath but as it was disclosed that as first information report had already been lodged with the police, the Magistrate asked the officer-incharge of the police-station to submit a report. The police did not submit any final report for about one year and so informing the Assistant Superintendent of Police, the Magistrate took cognizance of the case on 10-8-1962 and summoned the accused. In the meantime the police had started a G. R. case and sent the charge-sheet. The Magistrate then directed on 30-8-1962 that G. R. Case should be clubbed with the complaint case. In such circumstance, it was held by the learned Judge that it could not be said that the case was instituted upon a complaint so as to attract the provisions of Section 417(3) and allow a private person to file an appeal against the acquittal of accused. Similarly, in the case of State of Bihar v. Sakaldip Singh and Ors. In such circumstance, it was held by the learned Judge that it could not be said that the case was instituted upon a complaint so as to attract the provisions of Section 417(3) and allow a private person to file an appeal against the acquittal of accused. Similarly, in the case of State of Bihar v. Sakaldip Singh and Ors. AIR1966Pat473 , it was held that though a complaint case was amalgamated with the police case, the Magistrate had not passed any ORDER :under Section 202(1) of the Code on receipt of complaint, rather he took cognizance of the case on the charge-sheet and so the case must be considered as a case instituted on a police report. In a recent case of Sundar Mandal v. Dhanukhi Yadav 1968 BLJR 380 this Court had reviewed the position to some extent and had come to the conclusion that when the Magistrate took cognizance and summoned the accused, the fact that a Fardbeyan had been lodged earlier and thereafter a charge-sheet was submitted could not make the complaint case lose its identity and that being the position an appeal under Section 417(3) of the. Code of Criminal Procedure was maintainable. 6. So from the above discussion, it is amply clear that the facts and circumstances of each case have to be taken into account in ORDER :to arrive at a conclusion whether the case was instituted upon a complaint or on a police report. In the instant case the cognizance was taken on the police report and no action had been taken on the protest (objection) petition which, therefore, could not be treated as a complaint. In such circumstance, it must be held that this appeal is incompetent and the private complainant has no remedy in the present action. 7. I need not proceed to discuss the merits of the case because, in my opinion, the appeal fails on the preliminary ground. This appeal is, therefore, dismissed as being non-maintainable. Appeal Dismissed.