Decided on November 15,1967

WILFRED Respondents


- (1.) The question arising in this appeal by the State against acquittal, is whether a complaint forwarded by the Magistrate to the police for investigation and report under S.156(3) of the Code of Criminal Procedure would continue to retain its character as a complaint even though the police after investigation had sent up final report charging the case. In the present instance a complaint was filed under S.341 and 323 read with S.34 I. P. C. and that was forwarded by the Magistrate to the police under S.156(3) of the Code. After the receipt of the final report of the police, the trial was proceeded with as if it were a case instituted on police report and on 26-5-1965, to which date the case stood posted, nobody was present for the prosecution and so the accused was acquitted under S.247 of the Code. S.247 can apply only to cases instituted on complaint. On behalf of the State, therefore, it is argued that the learned Magistrate has gone wrong in dismissing the complaint under S.247 treating it as a private complaint; the case having been taken cognisance of on the final report of the police it ought to have been treated as a police charge and not as a private complaint for the purpose of S.247 of the Code. For the respondents (accused), on the other hand, it is argued that the case continues to be one instituted on complaint and the fact that a report of the police was called for under S.156(3) of the Code will not deprive it of its character as a private complaint. The question is one not free from difficulty. The acquittal of the accused under S.247, in the circumstances brought out in this case, was possible only in a case instituted on complaint and the appeal from such an acquittal will have to be preferred by the complainant on special leave obtained under S.417(3) of the Code. This will take us to the further question as to when could it be said that the Magistrate had taken cognisance of the offence. The expression 'to take cognisance' is not defined in the Code. It is, therefore difficult to say at what precise stage the case is taken cognisance of by the Magistrate. In some cases it has been held that taking cognisance does not involve any formal action; but occurs as soon as the Magistrate as such applies his mind to the offence complained of.
(2.) Any way, taking cognisance is a judicial act and when does the Magistrate first take judicial notice of an offence Is it correct to say that judicial notice is taken only when the complainant is examined on oath and not earlier when the complaint is forwarded for report without such examination If exercise of the judicial mind by the Magistrate is to be the criterion, could it be said that examination of the Complainant on oath is an indication that the Magistrate has exercised his judicial mind If so, why should the complaint be then sent to the police under S.202 of the Code for an enquiry. A distinction is seen drawn in some cases between calling for a report of the police under S.202 and the same under S.156(3) of the Code for the purpose of determining the stage from which it could be said that the court has taken cognisance of the case. Under the former, i. e., under S.202, the complaint is forwarded to the police after examining the complainant on oath under S.200; while under the latter i. e, under S.156(3), the complaint is sent to the police the moment it is received in court without any more formality.
(3.) Rulings are to the effect that if the complaint is sent to the police under S.202 it would retain its character as a complaint even after a charge sheet is filed by the police after investigation, while, on the other hand, if the police report is called for under S.156(3), and the police reports the commission of a cognisable offence and a charge sheet is accordingly filed, the case is one instituted on police report. This view is expressed in the decisions reported in AIR 1959 Cal. 145 , AIR 1960 Mys. 172 and AIR 1960 Ker. 389 . The gist of these decisions is that:- "a 'case' comes into being only when a court takes cognisance and so long as no cognisance is taken by a court, there being no case, no question of a case "instituted upon complaint' arises.";

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