ORDER
K. Sreedharan, J.
1. Complainant before court below has filed this petition for special leave to appeal against the judgment acquitting the accused. Office noted the defect that petitioner cannot maintain this application for special leave to appeal because he was not a party to the proceedings before trial court. Proceedings before trial court was initiated on a police charge. Present petitioner, being only a witness before court below should canvass the correctness of acquittal by filing a revision petition. Learned Counsel representing the petitioner took the view that proceedings before court below had its origin on the complaint filed by petitioner and hence petition for special leave to appeal alone is maintainable. To resolve this controversy, Office has sent up the matter.
2. Petitioner lodged a complaint alleging offences under Sections 448, 506(2), and Section 427 r/w Section 34 IPC. Learned Magistrate without taking cognizance of that complaint forwarded the same to police for investigation under Section 156(3), Cr. P.C. On that basis police registered crime 40/87 of Varandanappilly police station. After investigating the same police laid charge before court. It was entertained by the Magistrate as C.C. 240/87. Petitioner herein was examined as PW 1. In State of Kerala v. Wilfred 1968 Ker LT 57 this Court had to consider the question whether a complaint forwarded by the Magistrate to police for investigation and report under Section 156(3) of the Code would continue to retain its character as complaint even though the police after investigation had sent up final report charging the case. Sadasivan, J., took the view that investigation of the complaint, which was forwarded under Section 156(3), by the police and report filed thereon will not in any way change the character of the complaint and the proceedings will continue to be proceedings initiated on private complaint Learned Judge observed:
The Magistrate may initiate action either on a complaint of on a police report and the gist of the above decision is that the case is ‘conceived’ as soon as a complaint is filed or a police report is made and even if cognisance is taken by the Magistrate in the strict sense of the term only after the final report of the police, and the case proceeds only from that stage, it does not cease to be a case instituted on a complaint. Pursuing the analogy further it must be held that until the police report is received the case conceived by the filing of the complaint remains in the womb, and it is brought forth – either alive or still-born – after the receipt of the police report. When a complaint is sent by the Magistrate to the Police it must be presumed that such a step was resorted to by the Magistrate for a further assurance about the truth of the complaint. Putting it differently, the Magistrate is not prepared to proceed on the complaint alone; but thinks it necessary that a police report also should be obtained. The action of the Magistrate will not change the character of the complaint. In other words, the complaint originally filed will not, on that account, assume a different garb when the police report is received. The proceedings will continue to be proceedings instituted on complaint.
In view of this decision, learned Counsel submits that the petitioner can challenge the acquittal only in an appeal filed after obtaining special leave. Since the learned Judge of this Court has taken the above view, it was argued that the matter should be placed before a Division Bench to examine the correctness of that view in case, I take a defferent view in the matter. This submission of the learned Counsel should have been accepted if the Supreme Court has not spoken otherwise on this subject. In Jamuna Singh v. Bhadai Shah the Supreme Court has taken a different view in the matter and, therefore, I am disposing of this matter in a way contrary to the view expressed by Sadasivan, J.
3. The facts of the case that came up before the Supreme Court, in short, are as follows : A private complaint was filed before the Magistrate. The Magistrate after examining the complainant on oath made an order asking Sub-Inspector of police to institute a case and report. Ultimately, a charge-sheet was filed by police. Accused persons were committed to the Sessions Court. Sessions trial ended in acquittal. Against the order of acquittal complainant filed an appeal before High Court. High Court set aside the order of acquittal and convicted accused. That conviction was challenged before the Supreme Court In that appeal, maintainability of the appeal before High Court was in issue. The Supreme Court took the view that the Magistrate had taken cognizance of the case by examining the complainant and thereafter he ordered investigation by police under Section 202 of the Code. The Magistrate had not, referred the complaint to police for investigation under Section 156(3) of the Code. In these circumstances it was held the case was one instituted on a complaint filed by the complainant and not on police report submitted later as directed by the Magistrate.
4. Their Lordhips of the Supreme Court took note of the difference between investigation conducted by police under Section 156(3) of the Code and investigation made by a police officer as directed by the Magistrate under Section 202 of the Code. The investigation under Section 156(3) is not of the complaint which had already been taken cognizance of by the Magistrate whereas investigation under Section 202 of the Code is one in a case which has already been taken cognizance of by the magistrate. In the former the case should be treated as one instituted by the police and in the latter as one instituted by the complainant. De facto complainant has no right to challenge the order of acquittal in the former case by preferring appeal as provided by Section 378 of the Code. The complainant in the latter, can challenge the acquittal by resort to Clause (4) of Section 378 of the Code.
5. A case can be said to be instituted in a court only when the court takes cognizance of the offence alleged, Section 190(1) of the Code provides for three ways in which such cognizance can be taken. First is by receiving a complaint of facts which constitute the offence; second is on a report made by a police officer and third is upon information received by any person other than a police officer, or upon the Magistrate’s own knowledge. It makes clear that when a magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute the offence, a case is instituted in court. Such a case is one instituted on a complaint. When the Magistrate takes cognizance of the offence upon a report made by a police officer, it is a case instituted on police report. To decide whether a case was instituted on a complaint or not, it is to find out whether the Magistrate took cognizance of the offence on the complaint or on the report of the police. When on a complaint the Magistrate applies his mind for proceeding under various provisions of Chap. XVI of the Code, he must be held to have taken cognizance of the offence mentioned in the complaint. When the Magistrate forwards the complaint for purpose of investigation under Section 156(3) of the Code, he cannot be said to have taken cognizance of any offence. But, if the Magistrate proceeds to examine the complaint under Section 200 of the Code, the Magistrate takes cognizance of the offence. This is clear from Section 200 of the Code itself. That Section 2 states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under Section 200 of the Code puts beyond doubt that the Magistrate did take cognizance of the offence mentioned in the complaint After completing the examination and recording the substance of it as required by Section 200, the Magistrate may direct an enquiry or investigation to be made by police. When such an investigation is ordered, the result of the investigation submitted by police has to be taken into consideration before the Magistrate proceeds further with the case the report submitted by the police, in such a situation, will not make the case one instituted on police report.
6. In the instant case, learned Magistrate, on receiving the complaint, without recording the sworn statement of the complainant forwarded the same to police for investigation. After due investigation they filed charge before court. Such a case before the Magistrate cannot be taken as one instituted by the complaint of this petitioner. Therefore, he is not entitled to challenge the acquittal as contemplated by Clause (4) of Section 378 of the Code. In the above circumstances, I hold that the petition is unsustainable. It is accordingly dismissed.