Judgment : Against the order of the Chief Judicial Magistrate, Salem, dated 20th December, 1978, discharging the respondent herein under section 245 (1), Criminal Procedure Code, the above criminal revision has been filed. 2. It appears from the facts of the case that the respondent was the Sub-Inspector of Police, Mettur. He filed C.C. No. 839 of 1975 against the petitioner and others under sections 506 (II) and 148,Indian Penal Code, alleging that the petitioner herein attempted to beat the respondent with a tyre lever of a motor car by throwing it on the respondent and that the petitioner had also instigated his men to finish the respondent. C.C.No. 839 of 1975 filed by the respondent herein was hotly contested by the petitioner herein, with the result, petitioner was acquitted on 23rd April, 1976. Thereafter, the petitioner filed a private complaint against the respondent under section 190, 211, Indian penal Code, before the Judicial First Class Magistrate, Salem, which was subsequently transferred to the Chief Judicial Magistrate’s Court and numbered as C.C No. 131 of 1978. 3. The petitioner in the aforesaid C.C No. 131 of 1978 contended that the respondent was a Sub-Inspector of police, that he had enmity and bitter feelings towards him and that, because of that enmity, a criminal complaint was filed against the petitioner by the respondent on 3rd April, 1975 under sections 147, 353 and 506 (II), Indian Penal Code. The said case was numbered as C. C. No. 839 of 1975 in which the petitioner was acquitted. The petitioner further averred that the respondent had levelled a false charge of a cognizable offence against the petitioner knowing fully well that it was a false charge, that the respondent prosecuted trie petitioner with intent to cause him injury and that, by levelling such false charges, the petitioner’s status and reputation was damaged. The petitioner further averred, that the respondent, wilfully and with the knowledge that there was no just ground for such a charge, had foisted a false case against him, which ended in his acquittal. Under the circumstances, the petitioner contended that the respondent herein has committed an offence under section 911, Indian Penal Code, and prayed that suitable action be taken against the respondent. Under the circumstances, the petitioner contended that the respondent herein has committed an offence under section 911, Indian Penal Code, and prayed that suitable action be taken against the respondent. A sworn statement of the petitioner was also recorded by the trial Court and the complaint was taken on file under section 211, Indian Penal Code, and the case was posted to 29th August, 1978. 4. The respondent, on receipt of notice filed an application, Criminal M. P. No. 797 of 1978 regarding the maintainability of the case against him. He contended that the petitioner ought to have filed a complaint against the respondent, on the allegation alleged, within three years from the date of knowledge of the falsity of the complaint, that the petitioner, having kept quiet for a period of more than three years, cannot now file the present complaint against the respondent for the alleged false charge under section 211, Indian Penal Code, and hence, the case filed against the respondent by the petitioner after the lapse of so raany years was a motivated one and is statutorily barred and has to be dismissed. The respondent further contended in his petition that, in regard to the alleged false charge which is alleged to have been made in or in relation to the proceedings in a Court, a complaint from the Magistrate is necessary to prosecute the respondent and that, in the absence of such complaint from the Magistrate to prosecute the respondent, no cognizance of any complaint levelled by the petitioner can be taken against the respondent under section 195 (L), Criminal Procedure Code. It was further averred by the respondent that there is no specific finding by the Magistrate in his judgment in C. C. No. 839 of 1975 that the respondent has falsely charged the petitioner, but, on the contrary, the acquittal of the petitioner in the aforesaid case was based on the ground that the case against the petitioner was not proved by letting in sufficient evidence. Thus, the respondent prayed for the dismissal of the complaint. 5. Thus, the respondent prayed for the dismissal of the complaint. 5. The Chief Judicial Magistrate, on going through the complaint and the preliminary objections raised by the respondent regarding the maintainability of the case and after discussing the facts of the case and hearing the arguments of the respective counsel, by his concluding portion of the order, dated 20th December, 1978 has observed that: “In view of my prior finding the petition is allowed and this complaint is ordered to be dismissed and the accused is discharged under section 245 (1), Criminal Procedure Code”. It is against this order of discharge of the respondent by the Chief Judicial Magistrate the above criminal revision has been filed. 6. The short question that arises for consideration in this revised petition is whether the complaint filed by the petitioner, under section 190, Criminal procedure Code seeking action against the respondent under section 211, Indian Penal Code, is maintainable and whether the discharge of the respondent by the Magistrate is legal. 7. Mr. O.V. Baluswamy, learned counsel appearing for the petitioner, contends before me that the court, having taken cognizance of the complaint filed by the petitioner against the respondent under section 190, Criminal Procedure Code, and having issued notice to the respondent, was obliged to proceed with the case under section 244, Criminal Procedure Code. The learned Counsel contends that the trial Court ought to have proceeded to hear the prosecution case and should have taken evidence that might have been adduced on behalf of the petitioner. If the trial Court finds that, on the evidence adduced by the petitioner under section 244, Criminal Procedure Code no case has been made out against the respondent to warrant his conviction, the trial Court could have discharged the respondent. But, in this case, trial Court, without following the procedure laid down under sections 244 and 245, Criminal Procedure Code, has erred in discharging the respondent on the preliminary objection raised by him, and hence, the Counsel contends that the discharge of the respondent by the trial Court is illegal and contrary to law. But, in this case, trial Court, without following the procedure laid down under sections 244 and 245, Criminal Procedure Code, has erred in discharging the respondent on the preliminary objection raised by him, and hence, the Counsel contends that the discharge of the respondent by the trial Court is illegal and contrary to law. The learned Counsel appearing for the petitioner further contends that when a complaint under section 190, Criminal Procedure Code, is taken on file by the trial Court, in and by which the petitioner seeks punishment of the respondent under section 211, Indian Penal Code, the trial Court is duty bound to take evidence of the prosecution witnesses particularly that of the petitioner, and, that, in the absence of taking any evidence by the trial Court, after the appearance of the accused/respondent before the trial Court, the discharge of the respondent is illegal and contrary to law. In other words, the contention of the Counsel is that, when once a complaint is taken on file by the trial Court and the Court having taken cognizance of the same, it erred in discharging the accused/respondent, without recording any evidence under section 245 (1), Criminal Procedure Code. 8. In Marutha v. Rajagopal1, the question of discharging the accused without recording any evidence under section 253 (1), Criminal Procedure Code, came up for consideration before Somasundaram, J. The short facts of that case were that the Tahsildar, the Revenue Inspector, the Village Headman and other Revenue Officials came to the complainant’s house, entered inside and forcibly removed some bags of paddy. The Tahsildar caught hold of the complainant’s ‘thulasimani’ and pushed him down. Similarly, the wife of the complaint was pushed down by the Revenue Inspector. The Complainant filed a complaint against the revenue officials under "sections 147, 447 and 395, Indian Penal Code, before the District Magistrate, Tiruchirapalli, who took the case on the file under sections 147 and 352, Indial Penal Code, and later transferred it to the file of the Sub-Magistrate, Jayankondan, for disposal. The revenue officials, who figured as accused/respondents, took out a preliminary objection to the filing of the case against them under section 15 of the Essential Commodities Act, by contending that they removed the bags of paddy in the discharge of their official duty and in good faith, and that the prosecution against them was barred. The revenue officials, who figured as accused/respondents, took out a preliminary objection to the filing of the case against them under section 15 of the Essential Commodities Act, by contending that they removed the bags of paddy in the discharge of their official duty and in good faith, and that the prosecution against them was barred. The learned Sub-Magistrate, who heard the case, discharged all the revenue officials under section 253 (1), Criminal Procedure Code (V of 1898). The question was whether the acts done by the revenue officials were in discharge of their duties and whether sanction under section 197 (1), Criminal Procedure Code to file the case against them was necessary, Somasundaram, J., on the facts of the case, held that: "There was no judicial evidence before him (the Magistrate), to arrive at conclusion that the acts stated in the complaint were not done by the respondents and that the complainant had come forward with these alegations falsely without any basis. That was a matter of evidence. Thus without recording any evidence, he, (the Magistrate) should not have discharged the accused under section 253 (1) of the Code". 9. Relying on the basis of this decision, the learned Counsel for the petitioner herein contends that, in the present case, though the Magistrate has taken cognizance of the present complaint, the Magistrate, without recording any evidence as contemplated under sections 244 and 245, Criminal Procedure Code, erred in law in discharging the respondent. 10. Mr. K. Alagumalai, learned Counsel appearing for the respondent, contends that the Magistrate, in discharging the accused on the preliminary objection raised by him, has not committed any error as contended by the learned Counsel appearing for the petitioner. The Counsel contends that, when an objection is raised with respect to the maintainability of the case against the respondent at a preliminary stage, the question of recording evidence under sections 244 and 245, Criminal Procedure Code, will not arise and come into the picture at all. The Counsel contends that, when an objection is raised with respect to the maintainability of the case against the respondent at a preliminary stage, the question of recording evidence under sections 244 and 245, Criminal Procedure Code, will not arise and come into the picture at all. According the Counsel, the present case arises under section 195, Criminal Procedure Code, and, under the circumstances, it is contended that, when the trial Court is satisfied with the tenability of the objection raised by respondent that the complaint ought not to have been taken cognizance of by the Court, the learned Magistrate is empowered to discharge the accused and that by such discharge the Magistrate has not committed any error of law warranting interference with the impugned order. According to the Counsel there is no illegality committed by the Magistrate in this case and the trial Court has committed an error in taking cognizance of the case filed by the petitioner. 11. This argument leads us to consider section 195, Criminal Procedure Code, which deals with prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence. 12. In E.P. Subba Reddy v. State1 a Bench of the Andhra Pradesh High Court observed that: "The word ‘cognizance’ occurring in section 190 indicates the point of time when a criminal Court first takes notice of an offence. Taking cognizance is not the same thing as the initiation of the proceedings, as cognizance is taken of the offence and not of the persons. Therefore, taking ‘cognizance’ of an offence by a Magistrate does not necessarily lead to the conclusion that judicial proceedings against any offender have been started. Though section 190 (1) (a) empowers the Magistrate to take cognizance of an offence upon receiving the complaint of facts constituting the offence, section 195 (1) (b) lays an embargo or restriction on his power if such offence is committed in relation to any proceeding in any Court 13. It is on the basis of the above decision, the learned Counsel appearing for the respondent contends that, even though the Magistrate has taken cognizance of the offence, it does not necessarily mean that the judicial proceedings against the respondent has been started, and that under the circumstances section 244 (1), Criminal Procedure Code, will not come into play. It is on the basis of the above decision, the learned Counsel appearing for the respondent contends that, even though the Magistrate has taken cognizance of the offence, it does not necessarily mean that the judicial proceedings against the respondent has been started, and that under the circumstances section 244 (1), Criminal Procedure Code, will not come into play. The counsel for the respondent contends that ‘cognizance’ indicates the point of time when the Court has to first take note of an offence and that, taking cognizance does not mean, commencing of judicial proceedings under section 195 (1) (b). This section lays an embargo or restriction on the power of the Magistrate to take cognizance, if an offence contemplated under section 195 (1) (b) is committed or in relation to any proceedings in Court. To substantiate his argument, the learned Counsel for the respondent relies on a decision of the Supreme Court, reported in State of Punjab v. Brij Lal Palta2which deals with reference to an offence falling under section 211, Indian Penal Code. At page 386 the Supreme Court observed: "It seems to us that so far as prosecution under section 211 of the Penal Code, is concerned, once a complaint filed by the infromant is being proceeded with which is based on the same facts and allegations on which the first information was registered it is not open to a Magistrate to take cognizance of any offence alleged to have been committed under that section unless there has been proper compliance with the provisions of section 195 (1) (b) of the Criminal Procedure Code. It will lead to very anamolous results if any other view is accepted e.g., if the complaint is ultimately dismissed and the Magistrate refuses to lodge a complaint under section 195 (i) (b) its provisions will be defeated or circumvented if the police can move the Magistrate to take congnizance on a police report of an offence under section 211." 14. On the basis of this decision, the learned Counsel for the respondent contends that, in the instant case, the Magistrate has not taken cognizance as contemplated under section 190, Criminal Procedure Code, that, when once there is no cognizance section 244 and 245 Criminal Procedure Code, will not be attracted and,nence, the discharge of the respondent in the instant case on the facts is legal and there is no error of law committed in the order of the trial Court. 15. What is ‘cognizance’ and under what circumstances ‘cognizance’ could be taken has been fully discussed in E.P. Subba Reddy v. State.1 On the analogy of the said decision, I am of the view that it cannot be said that the trial Court, in this case, has taken Cogniaance and, under the circumstances sections 244 an 245, Criminal Procedure Code will not be applicable. 16. Further, when summons are issued to the respondent and when the respondent appears before the Magistrate, the respondent can take a preliminary objection regarding the maintainability of the case against him. It has been observed in In re, P.M. Kamath3as under: "When objection raised goes to the root of the case it should not be reserved for consideration till the entire evidence is recorded. The practice in Madras High Court has been that where a preliminary objection to the very cognizance of the offence by the Magistrate could be taken, such point can be raised before the lower Court itself, and, in fact it ought to be raised before the lower Court and then the aggrieved party may come up in revision before the High Court so that needless waste of time would be avoided when such preliminary objections are taken and are upheld." 17. As stated above, the question of the respondent submitting to the proceedings under sections 244 and 245, Criminal Procedure Code will not arise on the facts of this case, for, the respondent immsdiately questioned the power of entertaining the complaint by the Magistrate and had raised a preliminary objection contending that the complaint against him is not maintainable under section 195 (1) (b), Criminal Procedure Code. 18. The facts in the case before me are very clear. 18. The facts in the case before me are very clear. The Court which has acquitted the petitioner herein on the entire proceedings on a complaint filed by the respondent, has not mentioned or observed anything or has granted permission to the petitioner to institute proceedings against the respondent, I further find that the Magistrate, who has dealt with the case, C.C. No. 839 of 1975, dismissed the complaint filed by the respondent against the petitioner and that the said Magistrate has not granted permission to the petitioner to file any complaint against the respondent under section 211, Indian Penal Code. That being so, the complaint in C.C. No. 131 of 1978 filed by the petitioner before the Magistrate is not maintainable. 19. After going through the entire papers and hearing the arguments of the counsel appearing for both sides, I am of the view had the order of the Magistrate is perfectly justified, but, in this case, what the Magistrate should have done is, that he should have (sic) allowed the petition/dismissed the complaint instead of observing that the respondent is" "discharged". The word "discharge" in the order of the Magistrate had created the entire confusion. In these circumstances, I find no perversity or illegality or irregularity has been committed by the trial Court to warrant interference in revision. Hence, this criminal revision case is dismissed. Revision dismissed.