B.P.JHA, J. - (1.)THE petitioner (complainant -informant) has filed this revision petition far setting aside the order dated the 18th March, 1969, passed by the Sub -Divisional Magistrate, Madhubani and the under dated the 23rd November, 1970, passed by the Sessions Judge, Darbhanga.
(2.)IT is said that on the 7th April, 1968, at about 7 A.M., the members of the opposite party killed one Dasrath Mahto. The petitioner (informant) lodged a fardbeyan before the officer -in -charge of the police station. The police reached the place of occurrence on the same day, that is, 7th April, 1968. The investigating officer examined the eye -witnesses on the same day. It is said that the Divisional Inspector of Police also supervised the investigation of this case. It is said that the investigating officer submitted a final report under the directions of the superior officers. It is said that the Divisional Inspector, while holding supervision did not take the statements of any of the prosecution witnesses. It is said that he examined a boy who stated that Dasrath died when the tree fell on the body of Dasrath. The Magistrate in his order dated the 18th March, 1969, has held as follows :
"It is true that some of the P.Ws. of the F.I.R. supported the version of the prosecution before the I. O. But the fact that these P.Ws. belong to the side of the informant cannot be ruled out."
In my opinion, the learned Sub -Divisional Officer, while taking cognisance of the offence, ought not to have acted as a trial Court. If there is prima facie evidence on the record to suggest the correctness of the prosecution case, he ought to have taken cognisance of the offence. In the meantime, the petitioner lodged two protest petitions on the 9th May, 1968 and 5th August, 1968 before the Sub -Divisional Magistrate. The Magistrate directed by order dated the 10th May, 1968, to keen the protest petition on record. The Magistrate, while passing the order on the 18th March, 1969, was pleased to accept the final report and reject the protest petition of the petitioner. The Magistrate rejected the protest petition without examining the complainant (petitioner) on solemn affirmation under Section 200 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').
It is well settled that the Magistrate is not bound to take cognisance under Section 190(1)(a) of the Code on the basis of the complaint petition if it seems to him that the petition is a frivolous one. In this connection, learned Counsel for the opposite party cited a decision of the Supreme Court in Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986 : (1961 (2) Cri LJ 39). In that case, it has been held (i) that the provisions of Section 190 do not mean that once a complaint is filed, a Magistrate is bound to take cognisance of the offence, and (i) that the word 'may' in Section 190(1) cannot be construed to mean 'must'. Their Lordships of the Supreme Court mean to say that if once the Magistrate takes cognisance of an offence under Section 190(1) then the Magistrate is bound to proceed under Chapter XVI of the Code. In other words, their Lordships are of opinion that if the cognisance is taken by the Magistrate in respect of a complaint, the Magistrate is bound to proceed under Section 200 of the Code. In Bihar, a protest petition is treated as a complaint petition provided it satisfies the requirement of Section 4(1)(h) of the Code. In the present case, one of the protest petition satisfies the requirements of Section 4(1)(h) of the Code, and as such, I treat the protest petition filed on the 9th May, 1968 as a complaint petition. If it is so the Sub -Divisional Magistrate was bound in law to examine the complainant (petitioner) on oath under Section 200 of the Code. The contention of learned counsel of the opposite party is that the Magistrate was not bound to take cognisance of the offence under Section 190(1)(a) of the Code on the basis of the protest petition (complaint petition) in view of the decision of the Supreme Court in Gopal Das Sindhi's case, AIR 1961 SC 986 : (1961 (2) Cri LJ 39) (supra). Their Lordships of the Supreme Court in paragraph 7 have clearly held that Chapter XVI of the Coda would come into play if the Magistrate had taken cognisance of an offence on the complaint filed before him. In the present case, the Magistrate directed the protest petition to be kept on record. If once the Magistrate intends to take cognisance of the offence on the basis of a protest petition, then he is bound to examine the complainant on oath under Section 200 of the Code. If he fails to dispose of the protest petition without examining the complainant on oath, the order is not in accordance with law. In the present case, although the protest petition was filed on the 9th May, 1968, the Magistrate did not care to examine the complainant, on oath and disposed of the protest petition without examining the complainant on oath. In this connection, reference, was also made to a decision of the Supreme Court in H.N. Rishbud v. State of Delhi, (1955) 1 SCR 1150 : (1955 Cri LJ 526 : AIR 1955 SC 196). In that case, it was held at page 1164 as follows : -

"When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early State the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for."
On this analogy, I would direct that the petitioner be examined on oath under Section 200 of the Code and thereafter the Magistrate will dispose of the complaint petition in accordance with law.
(3.)THE word "cognizance" has not been defined in the Code. The word "cognizance" means 'to apply the mind in respect of the facts constituting the offence'. When the Magistrate applies his mind not for the purpose of proceeding under Chapter XVI but for taking action under Section 156(3) of the Code or for issuing a search warrant during investigation, he cannot be said to have taken cognisance of the offence under Section 190(1) of the Code. In other words, if the Magistrate applies his mind to the facts constituting the offence under Section 190(1) of the Code, then he is bound to proceed under Chanter XVI of the Code. But, if the Magistrate applies his mind not for the purpose of taking cognisance of the offence under Section 190(1) but for taking action under Section 156(3) or for issuing search warrant or for any other purpose, then it cannot be said that the Magistrate applied his mind for the purpose of taking cognizance. In this connection, another decision of the Supreme Court in R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207 : (52 Cri LJ 775) was referred to. In that case, a Special Bench decision of this Court in Gopal v. Emperor, AIR 1943 Patna 245 : (45 Cri LJ 177) was also referred to. In the Supreme Court case, it has been held that when the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of the Chapter, but for taking an action of some other kind, as for example, ordering investigation under Section 156(3) or issuing search warrants for the purpose of investigation, he cannot be said to have taken cognisance of the offence.