ORDER
Harbans Lal, J.
1. The instant petition under Section 482, Cr. P.C. seeks quashing of order dated 20-8-2005 passed by the learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act Cases in Cr. Revision Petition No. 16/2005 whereby the revision petition has been dismissed and order dated 2-4-2004 passed by the learned trial Court in Cr. Case No. 88/ 2000 dismissing the application of the accused petitioners for fixing the case for pre-charge evidence instead of for framing the charges has been upheld.
2. It may be mentioned at the outset that material facts in this case are undisputed. The relevant admitted facts are that the complainant non-petitioner No. 1 lodged an F.I.R. at PS Mahila-II, Gandhi Nagar, Jaipur on 27-6-2000 whereupon F. I. R. No. 88/2000 was registered for offences under Sections 498A and 406, I.P.C. After investigation, ] negative final report being No. 22/2000 was filed on 26-7-2000. Then, complainant filed protest petition on 6-8-2002 whereupon, – statements of the complainant and her father were recorded under Sections 200 and
202, Cr. P.C. The learned trial Court took cognizance on the basis of the said statements vide its order dated 18-2-2003. The accused were summoned. After their appearance, the case was fixed for arguments on charges. The petitioners-accused submitted an application on 5-12-2003 praying that the case itself be fixed for pre-charge evidence and it be tried as a warrant case instituted otherwise than on a police report.
3. After hearing both the sides, the trial Court rejected the said application vide its order dated 2-4-2004. The revision filed against the said order was also rejected by the learned Court below. Hence, this petition.
4. Learned Counsel for the petitioners has contended that both the learned Courts below have committed patent illegality by not following the procedure prescribed for the trial of the case out of which this petition has arisen. According to him, admittedly cognizance has been taken on the basis of the statements of the complainant and her father recorded under Sections 200 and 202, Cr. P.C. on the protest petition filed in the case. Obviously, order of taking cognizance has been passed under Section 190(1)(a) of Cr. P.C. The case is a warrant case instituted otherwise than on a police report. The procedure prescribed for conduct of trial of such warrant cases instituted otherwise than on police report is provided in Sections 244 to 250, Cr. P.C. The orders passed by both the learned Courts below are clearly abuse of the process of the Court and the exercise of inherent powers of this Court in such a case is justified and warranted.
5. Learned Counsel for the complainant non-petitioner has tried to support the impugned order.
6. I have carefully considered the rival submissions made at the bar. I have also perused the record as well as the order dated 18-2-2003 of the trial Court, order dated 2-4-2004 passed by the trial Court as well as the order dated 20-8-2005 passed by the learned revisional Court. I have also perused other relevant record placed before me.
7. Section 190, Cr. P.C. which deals with cognizance of offences by Magistrates reads, as under:
(1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence –
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offence as are within his competence to inquire into or try.
8. The learned Magistrate has not taken cognizance of the offences in this case under Section 190(1)(b)(c) of Cr. P.C. It is nobody’s case that the cognizance has, been taken either on the basis of the police report or on the basis of the information received from any person other than police report or upon his own knowledge. The cognizance has admittedly and undisputedly been taken on the basis of the statements recorded on the protest petition filed by the complainant after the police submitted negative police report. It is thus a case of taking cognizance under the provisions of Section 190(1)(a), Cr. P.C.
9. In Tula Ram v. Kishore Singh , the Magistrate on receiving a complaint ordered an investigation under Section 156(3), Cr. P.C. The police submitted a report indicating that no case had been made out against the accused. The court however, recorded the statement of the complainant and the witnesses and issued processes against the accused. It was contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police had submitted a report that no case had been made out against the accused. The Apex Court held that the Magistrate acted within his powers. The Magistrate on receipt of final report submitted by the police, besides rejecting the final report and taking cognizance under Section 190(1)(b) had also jurisdiction to take cognizance under Section 190(1)(a) upon original complaint or protest petition treating the same as complaint. The Magistrate could proceed to act under Sections 200 and 202, Cr. P.C. and thereafter decide whether the complaint should be dismissed or the process should be issued. In the instant case also, it is abundantly clear from the order of the Magistrate taking cognizance that he had relied on the statements of complainant and his witnesses recorded under Sections 200 and 202, Cr. P.C. On being satisfied that a prima facie case was made out against the petitioners, he issued processes against them. Thus, it is clear that the Magistrate had taken cognizance against the petitioner under Section 190(1)(a), Cr. P.C. and he was empowered to do so even on submission of final report by the police.
10. The next moot question which requires determination in this petition is that when the cognizance has been taken by the Magistrate under Section 190(1)(a), Cr. P. C, what procedure for trial of the case should be adopted.
11. Chapter-XVIII of Cr. P.C. deals with the trial before a Court of Session and Chapter-XIX of Cr. P.C. deals with trial of warrant cases by Magistrates. Trial of summons cases by Magistrates is dealt with in Chapter-XX of the Code of Criminal Procedure, 1973.
12. The case is admittedly a warrant case instituted otherwise than on a police report. Sections 244 to 250, Cr. P.C. deal with trial of cases instituted otherwise than on a police report.
13. Sections 244 to 250, Cr. P.C. are, as under:
B-Cases Instituted Otherwise Than On Police Report
244. Evidence for prosecution
(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
245. When accused shall be discharged.
(1) If, upon taking all evidence referred to in Section 244, the Magistrate consider, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
246. Procedure where accused is not discharged
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead, or claims to be tried or if the accused is not convicted under Sub-section (3) he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken.
(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged.
247. Evidence for defence
The accused shall then be called upon to enter upon his defence and produce his evidence; and the provisions of Section 243 shall apply to the case.
C-Conclusion of Trial
248. Acquittal or conviction
(1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.
(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.
(3) Where, in any case under this Chapter, a previous conviction is charged under the provisions of Sub-section (7) of Section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon:
Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under Sub-section (2).
249. Absence of complainant
When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.
250. Compensation for accusation without reasonable cause
(1) If, in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that there was no reasonable ground for making the accusation against them or any of them, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause whey he should not pay compensation to such accused or to each or any of such accused when there are more than one; or, if such person is not present, direct the issue of a summons to him to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or informant may show, and if he is satisfied that there was no reasonable ground for making the accusation, may, for reasons to be recorded, make an order that compensation to such amount, not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.
(3) The Magistrate may, by the order directing payment of the compensation under Sub-section (2), further order that, in default of payment, the person ordered to pay such compensation shall undergo simple imprisonment for a period not exceeding thirty days.
(4) When any person is imprisoned under Sub-section (3), the provisions of Sections 68 and 69 of the Indian Penal Code (45 of 1860) shall, so far as may be, apply.
(5) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him:
Provided that any amount paid to an accused person under this section shall be taken into account m awarding compensation to such person in any subsequent civil suit relating to the same matter.
(6) A complainant or informant who has been ordered under Sub-section (2) by a Magistrate of the second class to pay compensation exceeding one hundred rupees; may appeal from the order, as if such complainant or informant had been convicted on a trial held by such Magistrate.
(7) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under Sub-section (6), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided; and where such order is made in a case which is not so subject to appeal the compensation shall not be paid before the expiration of one month from the date of order.
(8) The provisions of this section apply to summons-cases as well as to warrant-cases.
14. A perusal of the aforesaid provisions makes it abundantly clear that in the trial of a warrant case instituted otherwise than on a police report, pre-charge evidence will have to be taken. After taking of the pre-charge evidence referred to in Section 244, Cr. P. C, if the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. The Magistrate is also empowered to discharge the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. However, if the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter-XIX of the Cr. P. C, such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. The charge shall be read and explained to the accused. He shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record his plea of guilt and may in his discretion convict him on its basis. However, if the accused refuses to plead, or does not plead, or claims to be tried or if he is not convicted under Sub-section (3) of Section 246, Cr. P. C, he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any of the witnesses whose evidence has been taken and if so, which of the witnesses for prosecution whose evidence has been taken. If he expresses his wish to cross-examination the witnesses the witnesses named by him shall be recalled and after cross-examination and re-examination if any, they shall be discharged. The evidence of remaining witnesses for prosecution shall be taken thereafter. After the conclusion of the prosecution evidence, the accused shall be called upon to enter upon his defence and produce his evidence.
15. Thus, it is clear that in a warrant case instituted otherwise than on a police report as is the case here, the procedure prescribed in Sections 244 to 250, Cr. P.C. shall be adopted. Accordingly, before framing the charge against the accused pre-charge evidence will have to be taken but, the learned Magistrate has committed error in not adopting the procedure prescribed for trial of warrant case instituted otherwise than on a police report. The learned Sessions Judge has also committed the same illegality. The orders of the learned Courts below are, therefore, unsustainable in law. Although, inherent powers vested in this Court under Section 482, Cr. P.C. are to be exercised sparingly and with circumspection. But, this is a case where exercise of the inherent powers is not only justified and warranted but is called for, for securing the ends of justice because the procedure prescribed for the trial of such case has not been adopted which procedure undisputably is more advantageous to the accused.
Consequently, this petition under Section 482, Cr. P.C. is allowed. The impugned order dated 20-8-2005 passed by the learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act Cases in Cr. Revision Petition No. 16/2005 as well as the order dated 2-4-2004 passed by the learned Additional Civil Judge {Junior Division) & Judicial Magistrate No. 9, Jaipur City, Jaipur in Cr. Case No. 88/2000 are quashed and set aside. It is directed that the learned Magistrate shall follow the procedure prescribed for the trial of the warrant cases instituted otherwise than on a police report in the light of the observations made hereinabove and make endeavour to conclude the trial at the earliest possible. Accordingly, the case shall now be fixed for pre-charge evidence instead of for hearing arguments on framing of charges.