ORDER
Arun Kumar Goel, J.
1. This revision is directed against the order passed by the Judicial Magistrate 1st Class, Billawar on 22-11-1996 (Annexure-P6), whereby the application of the petitioners for dropping the proceedings initiated against them while taking cognizance on the complaint of the respondent under Section 452, 149, 325, 147 and 148, RPC was dismissed by the trial Magistrate.
2. Present case purely hinges around a legal proposition as to how the Magistrate has to act when a complaint is filed before him and the same is forwarded under Section 156(3) of the Code of Criminal Procedure to the police, and thereafter on the same facts a complaint is filed and after having recorded the preliminary evidence trial Magistrate issues process, when it also relates to the facts which are subject-matter of the complaint forwarded to the police calling for its report.
3. In order to properly appreciate the respective submissions brief facts need to be noticed. Parties are not at variance that initially a complaint came to be filed by the respondent against as many as 17 persons under Section 147/148/ 149/325/452, RPC regarding the occurrence of Sunday dated 27-8-1995 at 7:30 AM. A copy of this complaint which is at page 9 of the trial Court file shows that it was endorsed to the police with the following order:
Forwarded in original to the I/S P/S Billawar for enquiry Under Section 156(3), Cr.P.C. and report by 25-09-1995.
Sd/-
JMIC Billawar
Again a complaint came to be filed by the respondent against the petitioners. The only difference is that in the complaint dated 6th September, 1995 there were 17 persons. Bishan Dass, who was arrayed as one of the accused in the previous complaint is not there in the complaint filed on 25-09-1995 out of which the present revision has arisen.
4. In the subsequently filed complaint on 25-09-1995 trial Court recorded the preliminary evidence and thereafter ordered issuance of process against the present petitioners and three other persons, all of whom moved an application on 18-04-1996 for dropping of proceedings against them by discharging them and consequently dismissal of the complaint filed by the respondent. This application was opposed by the respondent and finally by means of impugned order the same was dismissed, hence this revision petition.
5. In the context of present case Paragraph-4 of the complaint dated 25-9-1995 shall have a material bearing in determining the present revision petition, which is to the following effect:
4. That the complainant is a poor, illiterate and belong to hilly and backward area the Police P/S Billawar have not initiated any proceedings on complaint dt. 6-9-1995 vide No. 489 presented before the Hon’ble Court which was forwarded to the in-charge P/S Billawar for inquiry, the report of which was called for today the 25-9-1995, the accused are resourceful persons, and the complainant is female ‘weaker sex, due to, illiteracy and poverty is unable to file contempt proceedings against the police. Hence filing this complaint.
A reference to this paragraph shows that the respondent has admitted having filed a complaint earlier which was forwarded by the trial Magistrate to In-charge Police Station, Billawar for enquiry and report.
6. Section 205(E)(1) of the Code of Criminal Procedure is attracted in such circumstances which is to the following effect:
205-E. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.- (/I) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
It seems that without caring to go through the facts detailed in the complaint or without caring to apply his mind, the trial Magistrate recorded the preliminary evidence and then issued process. The matter did not rest here, but after the trial Magistrate had been informed about the pendency of previous complaint, (which fact is even otherwise admitted by the respondent in her complaint) still the Magistrate chose not to go through the provisions of Code of Criminal Procedure and then rectifying himself. Section 210 of the Code of Criminal Procedure, 1973 is pari materia in terms to Section 205(E) of the Code of Criminal Procedure of the State.
7. In this context it may be appropriate that institution of the case commences when the Court takes cognizance of an offence detailed therein. In such a situation Magistrate exercises his powers under Section 190 of the Code of Criminal Procedure. He can firstly take cognizance on receiving a complaint which in law constitutes an offence; the second course with the Magistrate is that on receipt of a report in writing of such facts which constitutes offence when it is made by a police officer; and the third mode is that after having received information from any person other than a police officer, or on Magistrate’s own knowledge or suspicion, that such an offence had been committed.
8. So far forwarding a complaint to the police for, investigation under Section 156(3) of the Cr.P.C. is concerned, it cannot be taken to be cognizance of offences mentioned therein. May be that it is a case instituted but what tantamounts to institution of a case is not defined in the Code of Criminal Procedure. On the other hand cognizance of a complaint is taken when the Magistrate concerned examines the same after application of mind in accordance with the provisions of Section 200 of the Code of Criminal Procedure and other subsequent provisions of the Code of Criminal Procedure.
9. As is evident from the record in the present case that the matter had already been referred to the police for inquiry and report regarding which the parties are not at variance. In the ordinary course of things the Magistrate should have and in fact must have gone through the complaint filed by the respondent, as a corollary to this, once having come to know that the matter is already pending investigation with the police under Section 156(3) Cr.P.C. (supra), in accordance with the provisions of Section 205(E) of the Code of Criminal Procedure (supra) he should have stayed his hands after taking cognizance and in no case he could proceed with the recording of either the complainant’s statement or her other evidence before issuing process against the respondents. This clearly indicates that the trial Magistrate acted not only illegally but further committed material irregularity in the facts and circumstances of the case. The matter did not rest here only but despite having been chastened to correct the mistake on an application filed by the petitioners, the impugned order shows that the trial Magistrate still did not think it proper to proceed in accordance with law.
10. On the legal aspect of the matter it may also be noticed here that after receipt of the report called for under Section 156(3) of the Cr.P.C., trial Magistrate is not bound to accept the same. If the report is negative then the Magistrate can order further investigation, and in case he intends accepting the same then after issuing notice to the complainant he can proceed in accordance with law, and if the report submitted by the police is accepted then the Magistrate will thereafter proceed in accordance with law. Whereas in the case of a private complaint after examination of the complainant and the witnesses under Section 200, Cr.P.C. he may either postpone the issue of process against the persons arrayed as accused in such complaint and then proceed under Section 202, Cr.P.C., or may dismiss the same under Section 203 of, the Code of Criminal Procedure. However if in the opinion of the Magistrate taking cognizance of an offence that there is sufficient ground for proceeding, then he shall have recourse to provisions of Section 204 Cr.P.C. by issuing process against such person.
11. Merely because a negative report has been submitted by the police will not preclude the complainant from filing a complaint and for the Magistrate from proceeding in the matter under Chapter 16 of the Code of Criminal Procedure. Only thing that has to be taken care of is that after having come to know that the investigation of the police is in progress in relation to the offence which is the subject-mutter of proceedings before him, then he shall stay the proceedings and will call for a report from the police officer conducting the same. For taking this view I am supported by a judgment; of learned single; Judge of Allahabad High Count reported in 1985 (1) Crimes 129 : 1985 All LJ 306 Ram Yash v. State of U.P. which is a case on facts nearer to the present revision.
12. In view of the aforesaid discuss: ion this revision is allowed, summoning order passed by the trial Court on 25-9-1995 under Sections 147, 148, 149, 325, 452, RPC in File No. 42/Criminal, titled as “Smt. Morni v. Smt Angrazo and Ors.”, is hereby quashed and set aside, with a direction to the Magistrate to proceed.strictly in accordance with the mandate of law contained in Section 205(E) of the Code of Criminal Procedure. Record of the trial Court be remitted to it forthwith.