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2005 DIGILAW 725 (GAU)

Pradyut Kr. Das v. Ajit Borah

2005-09-26

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. The opposite party herein lodged a complaint in the Court of the learned Chief Judicial Magistrate, Nagaon. This complaint gave rise to CR Case No. 508/2005, the case of the complaint being, in brief, thus: The complainant lived a happy married life with his wife and daughter for about seven years since after his marriage. The accused, who, in course of time, started living as a neighbour of the complaint in a rented house, induced the wife of the complainant and started cohabiting with her. When the complainant came to know about the illicit relationship, which had developed between his wife and the accused, the complainant talked to his wife and she admitted that she was in love with the accused. On the following day, the wife of the complainant went to her parental house and instituted a suit seeking divorce on various false and concocted allegations. The accused is a married man and though the complainant had asked the accused to stop his illicit relationship with the complainant's wife, the complainant found that the accused had, even on 01.04.2005 and 24.04.2005, cohabited with the complainant's wife at Swagat hotel, Nagaon and the complainant has witnesses to prove the same. 2. On receipt of the above complaint on 26.04.2005, the learned Chief Judicial Magistrate, Nagaon, made over the complaint to a Judicial Magistrate, 1st Class, Nagaon, who, in turn, fixed 02.05.2004 for recording the statement of the complainant. The statement of the complainant was, however, recorded on 03.05.2005. The learned Magistrate, then, examined and recorded the statement of one of the witnesses, who had been produced by the complainant on 11.05.2005 and, then, directed issuance of summons under Section 498 IPC against the present accused-Petitioner on the ground that the statement of the complainant and his witness disclose a prima facie case against the accused-Petitioner. Pursuant to the summons issued, the accused-Petitioner appeared in the learned Court below and was allowed to go on bail. After having obtained bail, the accused-Petitioner has, now, challenged before this Court the very order, dated 11.11.2005, whereby summons was directed to be issued against him. 3. I have heard Mrs. N.S. Thakuria, learned Counsel for the accused-Petitioner and Mrs. A. Begum, learned Addl. Public Prosecutor, Assam, for the State. 4. After having obtained bail, the accused-Petitioner has, now, challenged before this Court the very order, dated 11.11.2005, whereby summons was directed to be issued against him. 3. I have heard Mrs. N.S. Thakuria, learned Counsel for the accused-Petitioner and Mrs. A. Begum, learned Addl. Public Prosecutor, Assam, for the State. 4. The challenge to the order, dated 11.11.2005, aforementioned, is posed on the ground that under Section 200 Code of Criminal Procedure, cognizance of offence shall precede examination of the complainant and his witnesses, if any. In support of this submission, Ms. Thakuria has referred to Revanappa v. S.N. Ragunath, reported in 1983 Cr.L.J. 321. In the case at hand, according to what Ms. Thakuria submits, the learned Court below had examined the complainant without taking cognizance and, hence, the entire exercise thereafter leading to the issuance of summons against the accused-Petitioner, on 11.11.2005, is, contends Ms. Thakuria, untenable in law. The submissions so made, on behalf of the accused-Petitioner, have been controverted by the learned Addl. Public Prosecutor by submitting to the effect that though taking of cognizance before recording statement of the complainant is not essential, the fact remains that the Magistrate did take cognizance of the complaint before examining the complainant on 03.05.2005 and in this view of the matter, there is no merit in the revision and the same needs to be dismissed. 5. While considering the correctness or otherwise of the submissions made on behalf of the accused-Petitioner, it is necessary to point out that it is Section 190 Code of Criminal Procedure, contained in Chapter XIV, which deals with the taking of cognizance by a Magistrate and it is Section 200 Code of Criminal Procedure, which lays down as to what a Magistrate shall do, when he takes cognizance of an offence on a complaint. 6. Broadly speaking, the provisions contained in Section 190 and Section 200 Code of Criminal Procedure have to be read together, for, these provisions cannot be read in isolation by keeping them in two distinct and separate water-tight compartments. As a matter of fact, to understand the scheme of the Code of Criminal Procedure (in short, "the Code"), not only the provisions of Sections190 and 200 of the Code, but also the provisions of Sections 201, 202, 203 and 204 of the Code need to be read as a whole. 7. As a matter of fact, to understand the scheme of the Code of Criminal Procedure (in short, "the Code"), not only the provisions of Sections190 and 200 of the Code, but also the provisions of Sections 201, 202, 203 and 204 of the Code need to be read as a whole. 7. For better appreciation of the question as to how and when a Magistrate can take cognizance of an offence, it is appropriate to take note of the provisions of Section 190 of the Code, which run as follows: 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class especially empowered in this behalf under Sub-section (2) may take cognizance of any offence: (a) Upon receipt of a complaint of facts, which constitute such offence, (b) Upon a police report of such facts; (c) Upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. 8. A careful reading of Sub-section (1) of Section 190 of the Code clearly shows that a Magistrate can take cognizance of an offence in three different modes, namely, (a) upon receipt of a complaint of facts, which constitute such offence (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. When a Magistrate, however, takes cognizance of an offence under Clause (c) aforementioned, it is, in the light of provisions of Section 191 of the Code, the duty of the Magistrate to inform the accused, who is to be proceeded against, that he (accused) is entitled to have the case enquired into and tried by another Magistrate and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate, who takes cognizance, the case shall be transferred to another Magistrate as may be specified by the Chief Judicial Magistrate in this behalf. 9. Let me now turn to Section 200 of the Code, which, I notice, reads as follows: 200. 9. Let me now turn to Section 200 of the Code, which, I notice, reads as follows: 200. Examination of complainant-A Magistrate, taking cognizance of an offence on a complaint, shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate: Provided that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-(a) If a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint, or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192. Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 10. A careful reading of Section 200 of the Code makes it clear that a Magistrate, taking cognizance of an offence on a complaint, shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Such examination can be dispensed with under two contingencies, namely, (a) if a public servant, acting or purporting to act in the discharge of his official duties, or a Court has made the complaint, or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192. 11. A careful analysis of the provisions of Section 190 of the Code read with Section 200 thereof clearly reveals that what Section 200 of the Code lays down is the procedure as to what a Magistrate shall do, when he takes cognizance of an offence on receiving a complaint of the facts, which constitute such offence. This, in turn, clearly reveals, as is correctly pointed out by Ms. Thakuria, that taking of cognizance must precede examination of the complainant under Section 200of the Code. A proposition of law, therefore, what the decision in Revanappa (supra) lays down cannot be disputed. This, in turn, clearly reveals, as is correctly pointed out by Ms. Thakuria, that taking of cognizance must precede examination of the complainant under Section 200of the Code. A proposition of law, therefore, what the decision in Revanappa (supra) lays down cannot be disputed. The question, which, however, remains is this: whether, in the case at hand, the learned Magistrate had taken cognizance of the offence before examining the complainant? 12. Before answering the question posed above, the question, which arises for consideration is as to what is cognizance and when a Magistrate can take cognizance of an offence or when can a Magistrate be said to have taken cognizance of an offence. While considering these aspects of the matter, what is of paramount importance to bear in mind is that cognizance has not been defined under the Code. The word cognizance really indicates the point, when a Magistrate or a Judge first takes judicial notice of an offence. It also deserves to be borne in mind that cognizance is taken of offences and not of persons. Clause (a), (b) and (c) of Sub-section (1) of Section 190 of the Code set out, as indicated above, three different modes for taking of cognizance. 13. Whether a Magistrate has or has not taken cognizance of an offence will depend on the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. The Supreme Court, in R.R. Chari v. The State of Uttar Pradesh, reported in (1951) SCR 312, quoted with approval the observations made by Kulada Charan Das Gupta, J, in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, ( AIR 1950 Cal. 437 ), with regard to the question as to when a Magistrate can be said to have taken cognizance. The relevant observations read thus: What is taking cognizance has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. 437 ), with regard to the question as to when a Magistrate can be said to have taken cognizance. The relevant observations read thus: What is taking cognizance has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a) Code of Criminal Procedure, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent Sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. 14. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as, issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence, (see Devarapalli Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors. reported in AIR 1976 SC 1672 ). 15. When a police report is submitted before a Magistrate for taking of cognizance, the Magistrate may, in terms of Clause (b) of Section 190 (1) of the Code, take cognizance if the police report discloses commission of an offence. The Magistrate, in such a case, may also, instead of taking cognizance, direct further investigation. 15. When a police report is submitted before a Magistrate for taking of cognizance, the Magistrate may, in terms of Clause (b) of Section 190 (1) of the Code, take cognizance if the police report discloses commission of an offence. The Magistrate, in such a case, may also, instead of taking cognizance, direct further investigation. As reflected by Clause (c) of Section 190(1), when a Magistrate takes cognizance of an offence on the basis of the information received by the Magistrate from a person other than a police officer, or upon his own knowledge that an offence has been committed, the Magistrate must, before the evidence in such a case is recorded, let the accused know that the latter is entitled to have the case enquired into and tried by another Magistrate and if the accused or any of the accused, if there be more than one, objects to further proceeding before the Magistrate, who has taken cognizance, the case shall be transferred to such other Magistrate as may be specified, in this regard, by the Chief Judicial Magistrate. 16. What is, now, of immense importance to note is that when a complaint is presented before a Magistrate and even if the same discloses commission of an offence, cognizable or non-cognizable, the Magistrate still has the option, under Clause (a) of Section 190(1) of the Code, to either taken cognizance of the offence or, if the complaint discloses commission of a cognizable offence, direct investigation to be conducted by police in terms of Section 156(3) of the Code. In other words, what is of paramount importance to note is that when a Magistrate receives a complaint, he is not bound to take cognizance even if the offence alleged in the complaint discloses commission of an offence. This is, as held in Devarapalli Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors. AIR 1976 SC 1672 made clear from the use of words "may take cognizance", which cannot be equated with the expression "must take cognizance". Clarified the Supreme Court in Devarapalli Lakshminarayana Reddy (supra), the position of law, in this regard, as follows: ... This is, as held in Devarapalli Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors. AIR 1976 SC 1672 made clear from the use of words "may take cognizance", which cannot be equated with the expression "must take cognizance". Clarified the Supreme Court in Devarapalli Lakshminarayana Reddy (supra), the position of law, in this regard, as follows: ... If on a reading of the complaint he finds that the allegation therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in inquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. 17. Thus, whether the Magistrate has or has not taken cognizance of an offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. 18. In short, in the light of decision in Abani Kumar Banerji (supra) approved in R.R. Chari (supra) and in view of what Devarapalli Lakshminarayana Reddy (supra) lays down, it is abundantly clear that when a Magistrate applies his mind to the contents of a complaint for the purpose of proceeding in accordance with the subsequent provisions of the Code, particularly, Section 200 thereof, he can be taken to have taken cognizance. When, however, the Magistrate applies his mind not for the purpose of proceeding under Chapter XV of the Code, but for taking action of some other kind, such as, ordering investigation under Section 156(3) or directing issuance of search warrant, he cannot be said to have taken cognizance of the offence. 19. It logically follows from what has been observed above that when a Magistrate, on receiving a complaint, records the statement of the complainant, he can be said to have, in the absence of anything showing to the contrary, taken cognizance of the offence. No specific order need be passed by the Magistrate mentioning that he has taken cognizance of the offence, for, cognizance may be inferred to have been taken by the preliminary action, which the Magistrate takes. 20. No specific order need be passed by the Magistrate mentioning that he has taken cognizance of the offence, for, cognizance may be inferred to have been taken by the preliminary action, which the Magistrate takes. 20. What surfaces from the discussions held above is that the scheme of the Code is that when a complaint is prescribed before a Magistrate, he can either direct an investigation in terms of Sub-section (3) of Section 156 of the Code or he may decide to proceed with the complaint. If he decides to proceed with the complaint by taking cognizance of the offence (s), which the complaint discloses, he shall for this purpose, take steps in terms of Section 200 of the Code by examining the complainant. If the Magistrate, on receipt of the complaint, takes no steps to indicate that the Magistrate wanted to proceed in terms of Section 200 of the Code and sends the complaint to the police for investigation, it will indicate that the Magistrate has not taken cognizance and, in the later case, there will be no impediment, on the part of the Magistrate, to take cognizance of the offence if and when the police, on investigation carried out, submits a report, in this regard, in terms of Section 190(b). The act of sending of the complaint to police for investigation is really at a pre-cognizance stage. When, however, a Magistrate, instead of sending the complaint for investigation to the police, decided to proceed further under Section 200 of the Code, the Magistrate shall be deemed to have, unless shown otherwise, taken cognizance of the offence, for, the Magistrate cannot proceed to record the complainant's statement under Section 200 without taking cognizance. The act of proceeding with the examination of the complainant under Section 200 will, thus, be indicative of the fact that the Magistrate has taken cognizance of the offence and has decided to proceed accordingly. It is for this reason that when the Magistrate, after recording statement of the complainant and his witnesses, if any, present, decides to hold inquiry under Section 202 of the Code, he cannot, thereafter, send, for investigation, a complaint, which discloses commission of offence, which is exclusively triable by Court of Sessions. It is for this reason that when the Magistrate, after recording statement of the complainant and his witnesses, if any, present, decides to hold inquiry under Section 202 of the Code, he cannot, thereafter, send, for investigation, a complaint, which discloses commission of offence, which is exclusively triable by Court of Sessions. The fact of sending the complaint for investigation after recording of statement of the complainant and/or the witnesses and/or after holding inquiry under Section 202 of the Code is a stage, which may be called the post-cognizance stage. If the distinction between pre-cognizance stage and post-cognizance stage is borne in mind, there will be no difficulty in appreciating that when a Magistrate, instead of sending the complaint for investigation, decides to proceed under Section 200 and records the statement of the complainant and his witnesses, the Magistrate shall be treated to have taken cognizance of the offence disclosed by the complaint, for, as already indicated hereinabove, he cannot proceed to record the statement of the complainant under Section 200 without taking cognizance. The contention, therefore, of Ms. Thakuria that a Magistrate cannot examine complainant unless he has taken cognizance is legally correct. What is, however, necessary to note, in this regard, is that no formal order is required to be passed by the Magistrate to indicate that he has taken cognizance of the offence. The very fact that the Magistrate, instead of sending the complaint for investigation, has decided to proceed with the complaint under Section 200 of the Code is, in itself, in the absence of anything showing to the contrary, sufficient indication of the fact that the cognizance has been taken of the offence by the Magistrate in terms of Clause (a) of Sub-section (1) of Section 190 of the Code. 21. Thus, a mere presentation of a complaint in the Court of Judicial Magistrate does not mean that the Magistrate has taken cognizance of the same unless the Magistrate has applied his mind for the purpose of proceeding under Section 200 of the Code, i.e., when the Magistrate applies his mind for the purpose of determining if any process is required to be issued against the offender in respect of the offence (s) complained of and/or when the Magistrate applies his mind for the purpose of determining if any offence is prima facie shown to have been committed by the offender. (See Narsingh Das Tapadia v. Goverdhan Das Patani and Anr. AIR 2000 SC 2946 ) and Yunus Khan v. Mazhar Khan, reported in 2004 (1) GLT 652 22. What emerges from the above discussion is that when the Magistrate initially applies his mind to the contents of a complaint, becomes conscious and aware of the allegations made therein and decide to examine the validity of the said complaint by examining the complainant, he can be said to have taken cognizance. {See Tula Ram v. Kishore Singh, reported in 1978 Cri.L.J. 8 (SC) 23. What may, thus, be summarized is that when a Magistrate applies his mind to the contents of the complaint and decides to proceed in the manner as indicated in the subsequent provisions of the Code, namely, Chapter XV and, particularly, Section 200 of the Code, he can be said to have taken cognizance. In other words, it is only upon taking of cognizance of an offence that it is open to Magistrate to examine the complainant on oath under Sub-section (1) of Section 200 and also complainant's witnesses present, if any. The proviso to Section 200 makes it abundantly clear that the examination of the complainant and his witnesses is not necessary, when the complaint is made, in writing, by a public servant or the Magistrate makes over the case for inquiry and trial by another Magistrate under Section 192 of the Code. If a Magistrate takes cognizance of an offence, he must (i) examine, on oath, the complainant, though the complaint may be in writing, and the witnesses present, if any, and (ii) reduce the substance of such examination to writing. By examining the complainant and the witnesses present, if any, what the Magistrate essentially does is to determine as to whether there are sufficient grounds for proceeding against the accused. If the Magistrate is of the opinion, on examining the complainant and his witnesses under Section 200, that there are sufficient grounds for proceeding against the accused, he can issue process in terms of Section 204of the Code. If the Magistrate is of the opinion, on examining the complainant and his witnesses under Section 200, that there are sufficient grounds for proceeding against the accused, he can issue process in terms of Section 204of the Code. If, on examining the complainant and his witnesses under Section 200, the Magistrate is of the view that the allegations made against the accused needs to be inquired into or investigated, he may, in terms of Section 202, either inquire into the case himself or direct an investigation to be made by a police officer or by such other persons as he thinks fit. This inquiry or investigation is really for the purpose of determining as to whether there is sufficient grounds for proceeding. If the Magistrate chooses to hold the inquiry himself under Section 202 of the Code, this inquiry may result either, as already mentioned above, issuance of processes against the accused under Section 204 or dismissal thereof under Section 203, for, Section 203 makes it clear that if, upon considering the statements on oath, if any, of the complainant and his witnesses and the result of the inquiry or investigation, if any, under Section 202, the Magistrate is of the opinion that sufficient grounds do not exist for proceeding further, it is obligatory on him to dismiss the complaint, though while dismissing the complaint, the Magistrate is duty bound to record reason for so doing. 24. It may also be pointed out that if an investigation, directed under Section 200 of the Code, results into submission of a report under Section 173(3) to the Magistrate, this report has to be treated as a report under Clause (b) of Sub-section (1) of Section 190. Based on this report, the Magistrate may either take cognizance and issue process against the accused or he may direct further investigation. It will be wrong to say that in a complaint case, the Magistrate takes cognizance only when he decides to apply his mind for the purpose of determining if process needs to be issued against the accused. It is only when the complaint is made by a public servant in the discharge of his official duties or when a Court has made the complaint that the Magistrate need not examine the complainant and can straightaway determine if the complaint discloses sufficient materials to proceed against the accused. It is only when the complaint is made by a public servant in the discharge of his official duties or when a Court has made the complaint that the Magistrate need not examine the complainant and can straightaway determine if the complaint discloses sufficient materials to proceed against the accused. In such a case, when the Magistrate applies his mind for the purpose of determining as to whether a prima facie case has been made out against the accused or not warranting issuance of process, the Magistrate can be said to have been taken cognizance. When, however, the complaint has been made not by a public servant in the discharge of his duties or the complaint has not been made by a Court, the Magistrate, if satisfied that the complaint needs to be proceeded further and decides to examine the complainant under Section 200, he is said to have been taken cognizance. The fallout of this discussion is that the taking of cognizance is really initial application of mind by the Magistrate for the purpose of determining if he shall proceed in terms of the provisions of Chapter XV of the Code or not. 25. Mere perusal of the complaint by Magistrate for the purpose of determining whether or not the complaint discloses an offence does not really amount to taking of cognizance, for, it is only on satisfying himself that a cognizable offence is prima facie disclosed by a complaint that the Magistrate can order investigation under Section 156(3). As a corollary, it follows that before a Magistrate sends a complaint to the police for investigation under Section 156(3), he must be satisfied that the accusations made in the complaint prima facie constitute commission of a cognizable offence. If the complaint discloses no offence or if the complaint discloses commission of a non-cognizable offence, the Magistrate has no power to send such a complaint for investigation by police. At this stage, i.e., for the purpose of sending the complaint for investigation to the police, it is not the duty of the Magistrate to determine if the allegations made in the complaint are true or false. 26. At this stage, i.e., for the purpose of sending the complaint for investigation to the police, it is not the duty of the Magistrate to determine if the allegations made in the complaint are true or false. 26. When after examining of the complainant and the witnesses, if present, in terms of Section 200, the Magistrate finds that there exists some materials against the accused, but the same are insufficient for issuance of process, the appropriate statutory mechanism is engrafted under Section 202, which empowers the Magistrate to either direct investigation or inquire into the case himself to decide if the process deserves to be issued against the accused. 27. Imperative it is to point out that the power conferred on a Magistrate to direct investigation under Section 156(3) is quite different from the power given to him to direct investigation under Section 202(1). The power, so conferred, are resorted to in two distinct and different spheres at two different stages envisaged under the Code. The Code, it is pertinent to reiterate, has made distinction between pre-cognizance and post-cognizance stage. While Section 156(3) deals with Magistrate's power to direct investigation at pre-cognizance stage, Section 202 empowers the Magistrate to direct investigation by police at post-cognizance stage. 28. It is also pertinent to point out that when a complaint is presented before a Magistrate, the Magistrate may, instead of taking cognizance, send the complaint to police for investigation or he, after taking cognizance and after examining the complainant and his witnesses present, if any, can still send the complainant for investigation to the police officer or such other person as the Magistrate may direct; but when a police report is brought beore a Magistrate, which discloses commission of an offence, the Magistrate has no discretion, but to take cognizance of the offence. 29. It is well settled that a Magistrate has the power to reject the final report submitted by the police after having carried out an investigation into the First Information Report lodged directly with the police or following the receipt of a complaint for investigation sent to the police by the Magistrate either under Section 156(3) or under Section 202. Though the Magistrate has the power to reject a final report, yet, while doing so, desirable it is, that the Magistrate acts cautiously and assigns plausible and cogent reasons for rejecting the final report. Though the Magistrate has the power to reject a final report, yet, while doing so, desirable it is, that the Magistrate acts cautiously and assigns plausible and cogent reasons for rejecting the final report. A judicial order must be a speaking order and must reflect application of mind. Even rejection of a final report cannot really be arbitrary. It logically follows that rejection of a final report has to reflect application of mind and exercise of sound judicial discretion. In order to indicate that there was application of mind and sound exercise of judicial discretion, imperative it is that the Court has before it the materials to show as to why the Magistrate has opted to reject the final report. The materials, in this regard, can be nothing, but the order of the Magistrate rejecting the final report. It is, therefore, the duty of the Magistrate sign cogent reasons for opting to reject the final report. This does not, however, mean, I must hasten to add, that non-assigning of reason will ipso facto vitiate the order rejecting the final report. Since a judicial order cannot be arbitrary, whimsical or capricious, it is necessary that the order rejecting the final report be a speaking order. 30. If one keeps himself confined to the facts of the present case, what crystallizes from the above discussion is that when a Magistrate, instead of sending a complaint for investigation, decides to proceed with the complaint under Section 200 of the Code, the conclusion has to be, in the absence of anything showing to the contrary, that cognizance has been taken of the offence by the Magistrate. Viewed from this angle, when the learned Magistrate, in the present case, instead of sending the complaint to the police for investigation under Section 156(3), directed to put up the same for recording of statement of the complainant and thereafter did record the statement of the complainant and also the statement of the witness of the complainant, there can be no escape from the conclusion that the statements aforementioned were recorded after cognizance of the offence disclosed by the complainant had already been taken by the learned Magistrate. 31. In view of the above conclusion reached and the reasons assigned, there is absolutely no merit in the present revision and the same is, therefore, not admitted and shall accordingly stand dismissed. Appeal dismissed.