The Judgment of the Court was as follows:
1. This Rule was obtained by two persons A.C Samaddar and Satyendra Nath Das against whom complaint had been filed in the Court of the Sub-Divisional Magistrate, Contai, alleging that the two Petitioners had cheated them. The fact alleged against them may shortly be put thus. The Petitioners sold ampules of quinine to the complainant declaring that those ampules contained a certain percentage of quinine and that fact was noted on the ampules themselves. Money was paid to the Petitioners on this basis. It was subsequently discovered that the ampules contained very much less quantity than they were stated to contain. Thereupon the complainants filed a complaint charging the Petitioners with cheating. The learned Magistrate without examining the complainants passed an order purporting to be one under sec. 156(3) of the Code of Criminal Procedure directing the police to treat the complaint as a First Information Report and tc start investigation. The police carried out the order and made a report to the learned Sub-Divisional Magistrate. The Additional Magistrate of Midnapore withdrew the case to his file and transferred it to the file of Mr. S. Biswas, Deputy Magistrate of Midnapore (Sadar).
2. Before this learned Magistrate it was argued that the whole proceedings were invalid because the learned Sub-Divisional Magistrate had not examined the complainants in accordance with the provisions of sec. 200, Cr. P.C It was further contended that there could not be an order passed under sec. 156(3), Cr. P.C where cognisance was taken of an offence upon a complaint. The learned Magistrate accepted this view and held that the order upon the police to investigate were invalid and, therefore, the proceeding had become void and there was no basis for further action. He accordingly, discharged the Petitioners. Against this order of discharge a motion was taken to the Additional District Magistrate. He held that on receiving a petition of complaint a Magistrate may act either under sec. 200, Cr. P.C and examine the complainant on oath or he may take action under sec. 156(3), Cr. P.C and direct the police to investigate. The learned Additional Magistrate further says that if the Magistrate decided to proceed under sec. 200, Cr. P.C it was incumbent upon him to examine the complainant but if he proceeded under sec. 156(3), Cr. P.C, no such examination was necessary. He further held that in this case the Magistrate had decided to adopt the latter course, viz., to refer the matter to the police under sec. 156(5), Cr. P.C and that, therefore, the examination of the complainant on oath was not necessary. In this view he set aside the order of discharge passed by Mr. S. Biswas and directed a further enquiry by some Magistrate other than Mr. Biswas. Against this order of the Additional District Magistrate this Court has been moved.
3. It was argued on behalf of the Petitioners that the Magistrate upon receipt of the complaint took cognisance of it and, therefore, he had no option but to proceed in accordance with the provisions of sec. 200, Cr. P.C and examine the complainant on oath. Failure to do this, it was contended, rendered the whole subsequent proceedings void. Next, it was contended that sec. 156(3), Cr. P.C had no application where cognisance of an offence had been taken upon a complaint. On this ground it was contended by the learned Advocate for the Petitioners that the order of discharge was a proper one. It was also pointed out to me by the learned Advocate for the Petitioners that the parties had agreed to compound the offence and that in fact they had compounded the offence and, therefore, no further proceedings should have been permitted. This argument, however, was given up when it was pointed out that the offence of cheating is compoundable only if the trying Magistrate consents to its being compounded and that in this case the trying Magistrate refused to consent. I shall, therefore, not deal further with this point. The learned Advocate appearing for the Crown argued that cognisance of the offence had really not been taken by the learned Magistrate and he stated that upon receipt of a complaint the learned Magistrate had the option to take cognisance or not and he stressed the use of the word may take cognisance of any offence” in sec. 190(1) of the Code of Criminal Procedure. He then referred to sec. 200 and stated that it had application only when cognisance had been taken by the learned Magistrate and that as in this case cognisance had not been taken there was no necessity for the learned Magistrate to examine the complainant. Next he contended that the learned Magistrate had the power to act under sec. 156(3), Cr. P.C and send the complaint to the Police to be treated as a First Information for investigation.
4. In my opinion the contentions urged on behalf of the Crown cannot be sustained. Upon a complaint being filed before a Magistrate, the Magistrate is bound to take cognisance of the offence disclosed by the complaint. He has no option in the matter. The word “may” which appears in sec. 190(1), Cr. P.C does not give the Magistrate any option in the matter, it merely empowers the Magistrate to take cognisance of any offence in the three circumstances mentioned in clauses (a), (b) and (c), sub-sec. (1) of sec. 190, Cr. P.C Put in another way what the section says is this, that a Magistrate is empowered to take cognisance (a) upon a complaint, or (b) upon a report in writing made by a police officer or (c) upon information received from any person. This view was taken by this Court in the case of Umer Ali v. Safer Ali(1). In this case a reference was made by the Sessions Judge exactly on this point and this Court gave the option that upon receipt of a complaint the Magistrate was not competent to re-fuse to take cognisance of the offence but he was bound to examine the complainant and proceed to issue summons on the accused or order an enquiry in accordance with the provisions of subsequent sections of the Chapter. Their Lordships say this—” The use of the term ‘may take cognizance of any offence’ does not make it optional with a Magistrate to hear the complainant. It refers rather to the action of a Magistrate in taking cognizance of an offence in either of these specified courses in which the facts, constituting an offence, may be brought to his notice.” I respectfully agree with this view and I hold that the learned Magistrate was bound to take cognisance of the offence disclosed by the complainant. Now if that is so, the next thing which the Magistrate is bound to do is to act under sec. 200, Cr. P.C which says— “A Magistrate taking cognisance of an offence on complaint shall at once examine the complainant upon oath.” There can be no doubt here of the mandatory nature of this provision. A failure to examine the complainant upon oath renders subsequent proceedings invalid. This was held by Derbyshire, C.J, in Kashmiri Lal Garga v. Ismail(2). This was also the view taken by me in certain unreported decisions.
5. The next point for decision is whether a Magistrate taking cognisance of an offence upon complaint is permitted under the law to refer the matter to the police for investigation and submission of a report in accordance with the provisions of sec. 156(3), Cr. P.C In my opinion, the Magistrate has no jurisdiction to make such an order. This was the view held by the Madras High Court in the case of In re: Arula Kotiah and In re: Kasatti Ademma(3). It was pointed out there that sec. 156(3) is to be found in Chapter 14 of the Code of Criminal Procedure and that it was not intended to provide an alternate to that laid down in sec. 200 and the following sections which are in Chapter 16 of the Code of Criminal Procedure. I agree with this view. Cognisance has been taken of the offence according to the provisions of Chapter 16 of the Code of Criminal Procedure and the procedure laid down by the different sections of that Chapter must be followed. That procedure cannot be substituted by the procedure mentioned in sec. 156(3) of the Code of Criminal Procedure. The learned Magistrate, therefore, had no jurisdiction to refer the matter to the police under sec. 156(3) and the learned Additional District Magistrate who was moved by the complainant was wrong in holding that sec. 156(5) is meant to provide an alternate procedure with respect to proceedings initiated upon complaint. A similar view seems to be indicated in the case of Loke-nath Patra v. Sanyasi Charan Manna(4). This matter was considered in a later case of Isaf Nasya v. Emperor*(5) and it was held that a Magistrate taking cognisance of an offence under sec. 190(1)(a), Cr. P.C i.e, upon a complaint, acted without jurisdiction when he referred the matter to the police under sec. 156(3) of the Code of Criminal Procedure.
6. It is thus clear that the order of the learned Magistrate who took cognisance of the offence upon a complaint directing the police to investigate the matter and submit a charge-sheet was without jurisdiction. The question remains as to what should be done in these circumstances. In my opinion, the learned trial Court was wrong in discharging the Petitioners. The Petitioners cannot be discharged until they were summoned and made accused persons.
7. The use of the word “accused” in sec. 253 of the Code of Criminal Procedure makes it quite clear. The order of discharge was, therefore, wrong and must be set aside but for reasons other than those given by the Additional District Magistrate. The trial Magistrate shall examine the complainant on oath and follow the provisions of sec. 200 and the following relevant sections of Chapter 15 and thereafter decide the case according to law in the light of the observations made above.
8. The Rule is disposed of in this way.
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