J.N. Takru, J. - (1.) ZIA Ullah and Jumman have filed this revision against the appellate judgment and order of the learned Sessions Judge of Basti upholding their conviction and sentences of fine of Rs. 25/ - , in default two months' R.I. each Under Section 353/34 IPC and Zia Ullah's further conviction and sentence of fine of Rs. 25/ - , in default two months' R.I. Under Section 379 IPC.
(2.) IT is unnecessary to set out the facts giving rise to this revision at any length, as it is likely to succeed on a short legal point to be indicated presently. It appears that on the F.I.R. of Ram Murat Misra, constable, a case Under Section 353/34 was registered against the Applicants and a further case Under Section 379 was registered against Ziaullah. Thereafter Zia Ullah made an application in court giving his version of the incident. The court preferred Zia Ullah's application to the police and, in due course, D.W.A.A. Khan, C.O. II made an enquiry on that application, and, being of the opinion that no case was made out Under Section 353 IPC he submitted a final report. Thereafter D.W.J.A. Lari, C.I. was asked to investigate the case and after conducting the enquiry he also submitted a final report. The learned Magistrate, however, did not agree with the conclusions of the police officers and he summoned the Applicants under the sections mentioned above, and after recording the evidence of the parties he found both the offences made out against the Applicants. He therefore convicted and sentenced them under both the counts. Thereupon the Applicants preferred a revision in the lower revisional court which was, however, dismissed. Hence this revision. On behalf of the Applicants their Learned Counsel Sri B.C. Saxena contended that as the cognizance of the offences in the instant case was taken by the learned Magistrate on his knowledge and suspicion it was incumbent on him, before recording evidence in it, to inform the Applicants that they were entitled to have their case tried by another learned Magistrate, and that it was only on their agreeing to be tried by him that the learned Magistrate who had taken cognizance of the offence could try them. According to Sri Saxena, as the non -compliance of this mandatory provision of law has resulted in prejudice to the Applicants their conviction and sentences are illegal and liable to be set aside. After hearing the Learned Counsel, I am satisfied that this contention is well -founded.
(3.) NOW Under Section 190 Code of Criminal Procedure a Magistrate may take cognizance of any offence: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by a police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge and suspicion, that such offence has been committed.;