Tarkeshwar Nath, J.:— This appeal under sub-section (1) of Section 417 of the Cr PC by the State of Bihar is directed against the judgment acquitting the respondents in respect of the various charges framed against them.

2. The case of the prosecution was that Gudar Singh (P.W 1) had purcnased a house from Musammat Dhaneshar Kueo (P.W 14), the widow of Rambhaju Singh on the 20th June, 1960 by a sale-deed (Ex. 2). and after the purchase. Gudar Singh came in possession of that house. On the 27th January, 1962 Gudar Singh was sitting in the Sahan of that house, but, at about 2 P.M, these respondents fumed up variously armed and Girija Singh (respondent No. 2) ordered the other respondents to break the lock of the eastern door and enter that house Respondents Sakaldip Singh and Girija Singh were armed with pistols, respondent Deosharan Singh had a Bhala, respondent Ram Lakshman Singh had a lathi, whereas, the remaining respondents, namely, Lakshman Sao and Barho Singh had pharsas. Gudar Singh made a protest, but Sakaldip Singh fired his pistol. Rambrichh Choukidar (P.W 9) had arrived there and the smoke coming out of the pistol fired by Sakaldip Singh affected the eyes of the said Choukidar. Immediately after, Girija Singh fired his pistol, hitting Gudar Singh in his front teeth, chest and right arm. Thereafter, the respondents retreated and they could not break that lock Saryu Singh (P.W 5), brother of Gudar Singh, also happened to be there. This occurrence took place in village Neema, about four miles from police station Poonpoon, and Gudar (P.W 1) lodged the first information report (Ex. 4) at 3-30 P.M, on the 27th January, 1962, at police station Poonpoon. It was recorded by Rambilas Singh (P.W 10), assistant inspector of police. P.W 10 prepared the injury report and sent Gudar Singh to Patna Medical College Hospital. He prepared the injury report of the Choukidar (P.W 9) as well. Thereafter, Kamleshwar Tiwari (P.W 12), the sub-inspector of police, took charge of this case on the same day at 5.30 P.M and he investigated this case P.W 12 reached village Neema at 7 P.M but, as the night was dark, he could not inspect the place of occurrence that night. He inspected it on the following morning at 7 A.M and the occurrence, according to him took place in the Sahan in front of the house of Mosammaf Dhaneshwar Kuer (P.W 14) he noticed fired cartridge (Ex. 1) below a Sim Later (Sic) and brickbats at some places he prepared a seizure-list (Ex. 6) and a rough sketch map (Ex. 7). He found one wad near the north-eastern corner of the house of P.W 1. He submitted chargesheet against the respondents.

3. The respondents were committed to the Court of Session for trial and, in the Sessions Court. Sakaldip Singh (respondent No. 1) was charged under Ss. 148 and 307 read with S. 149 of the Indian Penal Code and Section 19(f) of the Arms Act Girija Singh (respondent No. 2) was charged under Section 19(f) of the Arms Act and Ss. 148, 307 and 323 of the Indian Penal Code. Deosharan Singh (respondent No. 3) was charged under Ss. 148 and 307 read with S. 149 of the Indjap Penal Code Ram Lakshman Singh (respondent No. 4) was charged under Ss. 147 and 307 read with S. 149 of the Indian Penal Code whereas, both Lakshman Sao and Barht Singh (respondents 5 and 6) were charged under Ss. 148 and 307 read with section 149 of the Indian Penal Code.

4. Sakaldip Singh alleged that he was the sister's son of Rambhaju and he used to live with his maternal uncle in the disputed house his case, further, was that the widow of Rambhaju Singh had left her husband and he (Sakaldip Singh) had performed the cremation ceremony of Rambhaju after his death Sakaldip came into possession of the house, and he alleged that he was falsely implicated in the present case. He filed a written statement as well, characterising the prosecution case as false. Respondents 2 to 6 alleged that they were falsely implicated on account of enmity. Respondent No. 3 alleged that he had no concern with the disputed house and he filed a written statement as well.

5. The learned Assistant Sessions Judge disbelieved the case of the prosecution with regard to the participation of these respondents in the occurrence, and, accordingly, he acquitted them. Hence, the State of Bihar has pre ferred this appeal.

6. Learned counsel for the respondents look a preliminary objection to the maintainability of this appeal and pointed out that, at one stage, Gudar Singh had filed an application in this case for special leave to appeal under Section 417(3) of the Cr PC but the leave was refused. He, accordingly, urged that S. 417(5) of the said Code is a bar to the maintainability of this appeal and this appeal should be dismissed in limine on this score. In order to appreciate this point it is necessary to mention certain facts in brief. The learned Assistant Sessions Judge acquitted the respondents by his judgment dated the 30th April, 1963. On the 6th June, 1963, Gudar Singh (P.W 1) filed an application in this Court under Section 417(3) of the Cr PC and it was registered as S.L.A No. 107 of 1963. It was however, dismissed summarily on the 7th June, 1963 by S.P Singh, J. Subsequently, this Government appeal was filed on the 30th July, 1963 and it was admitted on the 5th August, 1963 On the 9th September, 1964 the respondents filed a petition on this Government appeal, challenging its maintainability and an order was passed on the 15th September, 1964 that this petition would be heard alone with the Government appeal itself. sub-section (5) of Section 417 of the Cr PC provides that, if, in any case, the application under sub-section (3) for the grant of the special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-s. (1). Relying upon sub-section (5) of this section, learned counsel for the respondents contended strenuously that this appeal is not maintainable

7. Sub-section (3) provides that, if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court in other words, if an order of acquittal has been passed in any case instituted upon a complaint, then only, an application by the complainant for special leave to appeal from the order of acquittal is maintainable under sub-sectifln (3) of S. 417. But, if the case had been instituted not upon a complaint but on a police report, then an application under sub-section (3) of S. 417 for special leave to appeal is not maintainable. It is true that an application described as S.L.A was presented in this Court and it was dismissed summarily: but the question for consideration is as to whether this case against the respondents was instituted upon a complaint. Learned counsel for the respondents urged, initially, that it was not open to us, while hearing this appeal, to investigate as to whether the case against the respondents was instituted upon a complaint, and he pointed out that the office, before putting up the application for special leave to appeal (S.L.A 107 of 1963), for admission, had not made a report that the case giving rise to that application was not instituted upon a complaint. He, further, submitted that the Bench before which that application came up for admission had proceeded on the footing that the case was instituted upon a complaint, and, on that basis, the learned Judge heard the petitioner in that case and rejected the application summarily.

8. In support of his contention, he referred to the case of Har Narain Singh v. Nawab Chand Lal, AIR 1958 Pat 10. In that case, the office had reported that applications for special leave to appeal were not maintainable, because the cases were not originally started upon complaints. This report of the office was accepted by their Lordships and the copy of the report of Mr. R.N Pandey, Senior Inspector of Local Bodies, which was forwarded to the Sub-divisional Magistrate, was not treated as a complaint within the meaning of Section 4(1)(h) of the Cr PC. Besides this, those applications for special leave to appeal were not filed by the complainant and on this ground as well, the applications for special leave to appeal were dismissed. Learned counsel submitted that the High Court office had made a report in that case that the applications for special leave to appeal were not maintainable; but there was no such report when S.L.A No. 107 of 1963 was put up for admission in this Court. He referred to the case of Rameshwar Prasad v. Bhatu Mahton, AIR 1958 Pat 11 as well. That case lays down that a protest petition as well can be treated as a complaint. In that case, the petition on which the petitioner wanted to rely was not treated as a complaint within the meaning of Section 4(1)(h) of the Cr PC and it was held that case was not instituted upon a complaint.

9. Learned counsel referred to another decision of this Court in Udit Narayan Singh v. Ramrup Singh, AIR 1957 Pat 687 The stamp reporter had reported in that case that the application for special leave to appeal could not be entertained at the instance of the petitioner as he was not the complainant in that case. It was told that the petitioner in that case was not the complainant and, as such, the application for special leave to appeal could not be entertained. The point made out by learned counsel was that the stamp reporter in such cases made a report if the petition for special leave to appeal was not maintainable on the ground that the case was not instituted upon a complaint. But, in S.L.A 107 of 1963 there was no such report. It is true, S.L.A 107 of 1963 was presented for report and there was no report that it was not maintainable; but, all the same, that could not fetter the discretion of the Court in considering as to whether the case against the respondents was instituted upon a complaint. If the stamp reporter lost sight of this aspect of the case, his report could not be deemed to be final and conclusive on this point. It is always open to the Court to find out for itself as to whether the case was instituted upon a complaint or on a police report, if such a point was raised before it. I, therefore, do not find any merit in the objection that this Court, while hearing the Government appeal, cannot ascertain for itself as to how this case came to be instituted.

10. Learned counsel for the respondents, further, urged that, if we investigate as to whether this case was instituted against the respondents upon a complaint or on a police report, we will be sitting in judgment over the order of dismissal passed by a learned Judge sitting singly. But I do not find any substance even in this objection it is not a question of either receiving or reversing the said order of dismissal. It is only a question of interpreting that order and finding out the circumstances in which that application for special leave to appeal came to be dismissed summarily I have already indicated that the application under sub-section (3) of S. 417 can be maintainable only if the case was instituted upon a complaint but not otherwise.

11. It is now necessary to find out as to whether the case against the respondents was instituted upon a complaint or on a police report Certain more facts are necessary to be stated in this connection I have already indicated that the first information report was lodged by Gudar Singh (P.W 1) on the 27th January, 1962 and this report was received by the Sub-divisional Magistrate on the 29th January, 1962, on which date he remanded Sakaldip Singh (respondent No. 1) to jail custody until the 12th February, 1962 On the 6th February, 1962. Girija Singh Ram Lakshman Singh. Lakshman Sao and Barho Singh (respondents 2, 4, 5 and 6) surrendered in Court and made a prayer for bail. The learned Sub-divisional Magistrate refused bail and remanded them to custody until the 12th February, 1962 On the 12th February, Deo sharan Singh (respondent No. 3) surrendered in Court and made a prayer for bail; but that prayer for bail was refused and he as well was remanded to jail custody Meanwhile, the case was investigated by the police. It appears that this case was registered as G.R No. 190 of 1962. On the 16th February, 1962 Gudar Singh (the first informant) filed a petition of protest before the Sub-divisional Magistrate, Sadr. Patna, stating, inter alia, that the investigating officer was not investigating the case properly, and it appeared from the talk and demeanour of the investigating officer that he was in collusion with the accused persons. He made a prayer in this petition that the accused be summoned and put on trial. The Sub-divisional Magistrate entertained this petition and he examined Gudar Singh on solemn affirmation. He recorded the following order on the 16th February, 1962:

“Examined complainant on S.A

This is a protest to police investigation in Poonpoon P.S Case No. 5(1) 62.

Put up with said case on 2-3-1962.”

12. This case was registered as Case No. 55(C) of 1962. But the complainant, Gudar Singh, was not present on the 2nd and the 6th March, 1962, and the case was adjourned to another date towards the end of March 1962; he absented again and thus the learned Magistrate directed the case to be put up on the 3rd April, 1962, which was the date fixed in the police case for the receipt of final form. He passed various other orders in the complaint case, adjourning it from time to time inasmuch as he had not received the final form in the police case.

13. It appears from the order dated the 12th May, 1962 in G.R No. 190 of 1962 that charge-sheet was received against three of the accused persons, namely Sakaldip Singh, Girija Singh and Deosharan Singh (respondents 1, 2 and 3), on that date and then, it was directed that the case be put up on the 14th May, 1962 for hearing of that case with the protest petition. On the 31st May, 1962, the learned Sub-divisional Magistrate passed an order that he was satisfied from the perusal of the case-diary and the protest petition that a prima facie case was made out against all the respondents and accordingly, he called for a supplementary charge, sheet against the remaining three accused persons (respondents 4, 5 and 6) On the same date, that is, the 31st May, 1962, he passed the following order in the complaint case (No. 55(C) of 1962):

“Complainant present.

Supplementary chargesheet called for in the police case

Amalgamate it with police case record.”

14. Supplementary charge-sheet was submitted against the remaining three accused as well and this appears from the order dated the 1st August, 1962 passed in the police case. Ultimately, on the 2nd August, 1962, the Sub-divisional Magistrate took cognizance of the case and sent it to Mr. D.N Misra Munsif-Magistrate, first class for commitment trial. The respondents were then committed to the Court of Session, and they were acquitted by the learned Assistant Sessions Judge.

15. Learned counsel for the respondents submitted that on the facts of this case, it should be held that the case against the respondents was instituted on the complaint of Gudar Singh inasmuch as Gudar Singh had been examined on solemn affirmation by the Magistrate on the 16th February, 1962. He urged that the subsequent order dated the 2nd August, 1962 passed by the learned Sub-divisional Magistrate taking cognizance of the case was erroneous inasmuch as he had already taken cognizance on the 16th February, 1962 when he examined Gudar Singh on solemn affirmation.

16. In support of this, he relied on a decision of the Supreme Court in the case of Jamuna Singh v. Bhadai Sah, AIR 1964 S.C 1541. The occurrence in that case took place on the 15th November, 1956 when Bhadai Sah was passing along the village road. Bhadai, thereupon, tiled a petition of complaint in the Court of the Sub-divisional Magistrate, Gopalganj, on the 22nd November, 1956. The Magistrate examined Bhadai Sah on the 22nd November, 1956 and passed the following order:—

“Examined the complainant on S.A The offence is a cognizable one to S.I Baikunthput for instituting a case and report by 12-12-56.”

17. Ultimately, the police submitted charge-sheet against the accused persons in that case and the latter were committed to the Court of Session. The Sessions trial ended in acquittal. Against the order of acquittal, Bhadai Sah filed an appeal under section 417(3) of the Cr PC in the High Court of Judicature at Patna. The High Court set aside the order of acquittal and convicted the accused under Section 325 of the Indian Penal Code. The order was the subject-matter of appeal before the Supreme Court. It was urged that no appeal lay to the High Court against the order of acquittal under Section 417(3) inasmuch as the case was not instituted upon a complaint Their Lordships observed as follows

“An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate lakes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's Court on a police report.”

18. To decide whether the case in which the appellants (in that case) were first acquitted and thereafter convicted was instituted on a complaint or not their Lordships proceeded to ascertain whether the Sub-divisional Magistrate, Gopalganj, took cognizance of the offence in question on the complaint of Bhadai Sah filed in his Court on the 22nd November, 1956 or on the report of the sub-inspector of police dated the 13th December, 19.56 Another observation of their Lordships is to the following effect:

“It is well settled now that when a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for, purposer of ordering investigation under Section 156(8) or issues a search warrant for the Eurpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R Chari v. State of U.P, 1951 SCR 312 : (AIR 1951 SC 807) and again in Gopal Das v. State of Assam, AIR 1961 SC 986.”

19. Learned Counsel for the respondents relied upon the following passage occurring in paragraph 9 of that decision:

“That section itself 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 Cr PC puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint.”

20. Their Lordships considered that part of the order dated the 22nd November, 1956 passed by the learned Sub-divisional Magistrate by which he directed the sub-inspector, Baikunthpur for instituting a case and submitting a report by the 12th December, 1956, and held that, though the Magisfrate used the words “for instituting a case” in the said order, he was actually taking action under Section 202 of the Cr PC inasmuch as that was the only section under which the Magistrate was in law entitled to act. It was, further, held that the fact that the sub-inspector of police treated the copy of the petition of complaint as first information report and submitted “chargesheet” against the accused persons could not make any difference, and, accordingly, the report made by the police officer, though purporting to be a report under Section 173 of the Cr PC, had to be treated in law to be a report under Section 202 of the Cr PC. It is true that an observation was made that the examination by the Magistrate under Section 200 of the Cr PC put if beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint; but this observation has to be read in connection with the facts of that case. There was no first Information report in that case with regard to the occurrence which took place on the 15th November, 1956 and there was only a petition of complaint before the Sub-divisional Magistrate with regard to that occurrence. The Sub-divisional Magistrate had applied his mind to the said petition of complaint only and he examined the complainant on solemn affirmation. He, further, observed that the offence was a cognizable one and then, he directed the sub-inspector of police for instituting a case and submitting a report. The position, thus, was that the Magistrate had applied his mind to the allegations made in the petition of complaint for proceeding under Section 202 of the Cr PC.

21. It is important to notice that by the decision in that case their Lordships reiterated the view taken in the earlier decision in the case of AIR 1951 SC 207 and also the one in the case of AIR 1961 SC 986. What is raeapt by taking cognizance of an offence”, occurring Section 190(1) of the Cr PC is not indicated in the Code; but in a wider sense it indicates taking notice of an offence judicially. I am, accordingly, of the view that this extreme contention of learned counsel for the respondents that the moment the Magis trate examined Gudar Singh, the complainant, on solemn affirmation, he must be deemed to have taken cognizance cannot be accepted. In the present case, the Magistrate did not pass any order on the 12th February, 1962, indicating that he applied falls mind to the petition of complaint for the purpose of proceeding in accordance with the provisions of Chapter XVI of the Code of Criminal Procedure. If he had passed any order under Section 202 of the Code then, of course, it could be taken that he took cognizance on the 16th February, 1962.

22. Learned counsel, next, referred to a decision of this Court in the case of Md. Nabi Akhtar v. Hasnu Mian, (1965 BLJR 278 : 1966 Cri LJ 339(2)). The occurrence in that case took place on the 1st January, 1960 and, at the instance of Md. Nabi Akhtar, a first information was recorded by the assistant sub-inspector of police (P.W 15). Investigation was taken up by the police and, meanwhile, a protest petition was filed by Md. Nabi Akhtar. On 1st March, 1960 he filed a petition of complaint before the Sub-divisional Magistrate and he was examined on the same date on solemn affirmation. The Sub-divisional Magistrate passed the following order on the 1st March, 1960:

“Examined the complainant on S.A Remind S.I Police to submit his report by 17-3-60.”

23. On completion of the investigation, the police submitted final report, but the Sub-divisional Magistrate did not accept it and passed an order on the 25th April, 1960, summoning the respondents under Sections 380 and 323 of the Indian Penal Code. He transferred the case on the same date to the Munsif-Magistrate of Nawndah for disposal

24. The learned Magistrate to whom the case was transferred acquitted the respondents, and hence Md. Nabi Akhtar filed an appeal in this Court after obtaining special leave A preliminary objection was raised on behalf of the respondents to the maintainability of the appeal on the ground that the case was instituted on the basis of the first information report and not on that of the complaint petition filed by Md. Nabi Akhtar in support of that contention, learned counsel for the respondents relied on another decision of this Court in the case of Harbans Singh v. Daroga Singh, AIR 1962 Pat 27 This, decision was distinguished and reliance was placed on the decision of the Supreme Court in AIR 1964 SC 1541 and if was held that the case against the respondents was instituted on the petition of complaint filed by Md. Nadi Akhtar and not on the police report it was observed by their Lordships that, in the case before them, the complainant had taken active steps on all the dates since after the filing of the petition of complaint and he had engaged a separate lawyer also for the conduct of his case even though the Magistrate, to whom the case had been transferred followed the procedure specified under Section 251-A of the Cr PC, that is, in respect of a case instituted on a police report. Besides this, in that case, there was no order of the Magistrate for the merger of the complaint case with the police case, specially, because the police had submitted final report and had not recommended for the trial of the respondents. Regard being had to these facts and the clear observation of their Lordships of the Supreme Court, it was held that case must be deemed to have been instituted on a complaint and, as such, an appeal against the order of acquittal was competent under Section 417(3) of the Cr PC.

25. That decision in Md. Nabi Akhtar, 1965 BLJR 278 : (1966 Cri LJ 339(2)) relied upon by learned counsel for the respondents is distinguishable on two grounds: Firstly, that a regular petition of complaint had been filed in that case, and, secondly, that there was no order amalgamating the complaint case with the police case. On the other hand, the facts of the case before us are at par with those of the case of AIR 1962 Pat 27. The question as to whether a case was instituted on a complaint or on a police report has to be decided on the facts and circumstances of each case. In the case of Harbans Singh, AIR 1962 Pat 27 he had lodged a first information report on the 12th January, 1956 relating to the occurrence on the 11th January, 1956. The Sub-divisional Magistrate started G.R Case No. 98 of 1956 on the 13th January, 1956 on its basis. On the 10-2-1956, while the police investigation was going on Harbans Singh filed a protest petition before the Sub-divisional Magistrate who treated it as a complaint and examined Harbans Singh on solemn affirmation on the same date. Case No. 43.C/56 was treated on its basis, and the Sub-divisional Magistrate ordered the matter to be put up on the 14th February, 1956. The police, after investigation prepared chargesheet on the 19th April, 1956 and it was placed before the Sub-divisional Magistrate Ultimately, on the 6th June, 1956, when he received the record he ordered the case to be transferred to a Magistrate for disposal. That Magistrate held commitment inquiry in accordance with the provisions of Section 207-A of Chapter XVIII of the Cr PC and committed the case to the Sessions Court for trial. The Additional Sessions Judge acquitted all the accused persons in the meantime Case No. 43.C/56 was being postponed from time to time until the 6th June, 1956 arid, on, that date the Sub-divisional Magistrate passed the following order

“Complainant is absent C.S under Section 148/149/302 I.P.C submitted in the police case

Amalgamated with G.R No. 98/56 Phulwari P.S Case No. 4(1) 56”

26. The question that arose for consideration in that case was whether, in view of the order of amalgamation passed by the learned Magistrate in the complaint case on the 6th June, the case could be held to have been Instituted not only upon the police chargesheet but also upon the complaint. There was no segarate evidence to be adduced in the complaint case and, therefore, all that was signified by the order of amalgamation was that the result of the complaint case was to be the same as that of the polite case. “In other words, the complaint case lost its identity and separate existence as it merged with the police case which retained its identity”

27. Their Lordships came to the conclusion that the case before them could not be said to have been “instituted upon complaint” within the meaning of sub-section (3) of Section 417 of the Cr PC and, therefore, the appeal at the instance of the complaint was not maintainable.

28. In the present case, the order for amalgama lion was passed on the 31st May, 1962 (already quoted above.) It is necessary, however, to ascertain as to whether the Sub-divisional Magistrate purported to pass any order under Section 202 of the Cr PC on the 16th February, 1962. Section 202(1) provides that the Magistrate, on receipt of the complaint, may postpone the issue of process for compelling the attendance of the person complained against and meanwhile, he may (i) either inquire into the case himself, or (ii) direct an enquiry or investigation to be made by another Magistrate subordinate to him, or (iii) direct an inquiry or investigation to be made by a police officer or by such other person as he thinks fit for the purposes of ascertaining the truth or falsehood of the complaint. I have already quoted the order dated the 16th February, 1962 and the second part of the order indicates that the Sub-divisional Magistrate treated the petition dated the 16th February, 1962 as a protest petition to the police investigation in the police case, and he directed the complaint case to be put up with the police case. There was no order by him on that date for inquiry or investigation by the Police Officer with regard to the allegations made in the petition filed on the 16th February, 1962.

29. It is true that a protest petition can be treated as a petition of complaint and, in the petition dated the 16th February, 1962, Gudar Singh had made a prayer for issuing summons against the accused; but there is no order on the 16th February, 1962 to the police for ascertaining the truth or falsehood of the complaint. The Sub-divisional Magistrate did not even direct that the said petition dated the 16th February, 1962 should be sent to the police officer who was investigating the police case. Neither the Sub-divisional Magistrate chose to inquire himself about the truth or falsehood of the complaint nor did he direct any other Magistrate to make an inquiry or investigation. In this view of the matter, I have no hesitation in holding that the Sub-divisional Magis trate did not pass any order under Section 202 of the Cr PC.

30. It is necessary to find out as to whether the Sub-divisional Magistrate, on receiving the said petition and examining Gudar Singh on solemn affirmation, purported to act in accordance with the provisions of Section 202 of Chapter XVI of the Cr PC; but that can be found out only from the order which he passed on the date he received the petition of complaint or on a subsequent date. The position, thus, is that the Sub-divisional Magistrate cannot be deemed to have taken cognizance on tbs 18th February, 1962 and he did so only on the 2nd August, 1962 after the receipt of both the charge-sheets, the first charge-sheet and the supplementary charge-sheet I am, therefore, of the view that the case against the respondents was instituted not upon the complaint but on the police report, and the application for special leave to appeal under Section 417(3) of the Cr PC (S.L.A 107 of 1963) was not maintainable. The order of dismissal of that application passed on the 7th June, 1963, must be deemed to have been passed on the ground of the said application not being maintainable and not on the ground that it? had no merit either on facts or on a point of law in this view of the matter, sub-section (5) of Section 417 of the Cr PC is not a bar to the maintainability of the Government appeal under Section 417(1) of the Code, and the preliminary objection raised on behalf of the respondent must be overruled.

31. I now proceed to consider the evidence adduced in the present case in order to ascertain whether the order of acquittal passed by the learned Assistant Sessions Judge was a right one

[After considering the evidence in paragraphs 11 to 14 his Lordship proceeded]. There is, thus, evidence of enmity and that seems to be the reason for implicating some of the respondents. The evidence of the Chaukidar (P.W 9) makes it clear that Girija. Ram Lakshman. Lakshman and Barho (respondents 2, 4, 5 and 6 respectively) were not present at the time of the occurrence and on that ground alone there could be no unlawful assembly 11 is not the case of the prosecution that there were other persons also who were members of the unlawful assembly and the position, thus, is that, in the absence of these four respondents, there was not an assembly of five persons for this reason alone, the charge under Section 307 read with Section 149 would fail against Sakaldip Singh, Deosharan Singh, Ram Lakshman Singh Lakshman Sao and Barho Singh (respondents 1, 3, 4, 5 and 6 respectively) For similar reason, the charge under Section 148 would fail against Sakaldip Singh, Girija Singh, Deosharan Singh, Lakshman Sao and Barho Singh respondents 1, 2, 3, 5 and 6 respectively) and the charge under Section 147 against Ram Lakshman Singh (respondent No. 4) would also fail Gurija (respondent No. 2) not having been present at the time of the occurrence, charges under Sections 307 and 326 of the Indian Penal Code and the charge under Section 19(f) of the Arms Act would fail against him. The evidence of the prosecution witnesses not being reliable, the charge under Section 19(f) against Sakaldip Singh as well Would fail just as the other charges against him have failed.

32. The learned Assistant Sessions Judge considered the adduced evidence in the case carefully and concluded that one fired cartridge and one wad were found near the place of occurrence, that the prosecution had not proved, its case that these respondents took part in the occurrence and as such, the respondents were entitled to acquittal. He, further, did not believe the case of the prosecution that the respondents went to take forcible possession of the disputed house From the evidence on record, he found it difficult to find which of the respondents took part in the alleged occurrence. He, further, observed that the evidence did not clearly pointed out that some of the respondents were falsely named due to other considerations and the evidence was such that it was difficult to separate truth from falsehood it is not a case where the trial court either misread the evidence of failed to appreciate properly the evidence on the record or made an incorrect approach while considering the prosecution case and as such, here is no room for interference.

33. In the result, the Judgment of acquittal mist be affirmed and the appeal is dismissed.

34. Ramratna Singh, J.:— I agree: but I would like to add a few sentences because the learned advocate for some of the respondents laid repeated emphasis on the fact that I was a party to the decision in the case of 1965 BLJR 278 (1966 Cri LJ 339(2)) and that this decision covered the present case in that case, the main judgment was written by S.P Singh, J. and I merely agreed.

35. It is well settled that as to when cognizance is taken of an offence depends upon the facts and circumstances of each case before it can be said that any magistrate has taken cognizance of any offence under sub-section (1)(a) of Section 190 of the Cr PC, he must not only have applied his mind to the contents of the complaint petition but he must have done so for the purpose of proceeding under Sec. 200 and the subsequent sections of Chapter XVI and Section 204 of Chapter XVII of the Code (See AIR 1951 SC 207, Narayandas Bhagwandas v. State of West Bengal, AIR 1959 SC 1118 : AIR 1961 SC 986) In Jamuna Singh's case, AIR 1964 SC 1541 a regular complaint had been made and after examining the complainant the magistrate sent the complaint petition to the police for ‘instituting’ a case Their Lordships of the Supreme Court, interpreted this order to mean that the Magistrate, after examining the complainant under Section 200 of the Cr PC, took action under Sec. 202 of Chapter XVI of the Code and directed the police to enquire into the matter Following the aforesaid decisions their Lordships held that was a complaint case and not a case started on police report. The facts of the present case are completely different and there is no similarly between this case and Jamuna Singh's case, AIR 1964 SC 1541.

36. The only similarity between the case of Md. Nabi Akhtar, 1965 BLJR 278 : (1966 Cri. LJ 339(2),) and the present case is that a police case was started on the first information and sometime later a protest petition was filed by the first informant before the Magistrate making certain allegations against the police.

37. But in Md. Nabi Akhtar's case, 1965 BLJR 278 (1966 Cri LJ 339(2)) sometime after the protest petition a regular complaint petition was filed on the 1st March, 1960, while no such complaint petition was filed in the present case as pointed out by S.P Singh, J. in the case of Md. Nabi Akhtar, 1965 BLJR 278 (1966 Cri LJ 339(2)) the learned Magistrate examined the complaint on solemn affirmation after the filing of the regular complaint petition and thereafter the complainant took active steps on all the dates since the filing of the complaint petition and he had engaged a separate lawyer also for the conduct of his case, even though the magistrate, to whom the case had been transferred, followed the procedure fact down in Section 251-A of the Cr PC in respect of the case instituted on the police report. The learned Judge distinguished the facts in Md. Nabi Akhtar's case, 1965 BLJR 278, (1966 Cri LJ 339(2)) from those in the case of AIR 1962 Pat 27.

38. In that case, as in the present case a protest petition had been filed against the conduct of the police during the period when the police investigation was going on. Of course, the Magistrate examined the first informant, on solemn affirmation after his protest petition was Bled but he ordered the protest petition to be put up with the connected police case on a subsequent date. The protestant did not take am step in the complaint case because, subsequently, the police submitted a charge-sheet against the accused and after receipt of the charge-sheet the Magistrate ordered the case started on the protest petition to he amalgamated with the case started on the police report. On account of these facts in the case of Harbans Singh, AIR 1962 Pat 27 their Lordships held that the case on the basis of the protest petition lost its identity and it merged with the police case in which charge-sheet had been submitted. On the other hand, in the case of Md. Nabi Akhtar, 1965 BLJR 278 : (1966 Cri LJ 339(2)) there was no such order of merger with the complaint case and the police had submitted a final Report and did not recommend the trial of the accused persons. It will be noticed that the facts of the present case are similar to those in the case of Harbans Singh, AIR 1962 Pat 27 Sometime after the first information report was dodged before the police and while the police investigation was going on a protest petition was filed against the police investigation on the 16th February, 1962 by the first informant and after examining the first informant on solemn affirmation, the magistrates ordered this protest petition to be put up with the police case (No. 5(1) 62) Thereafter, on three dates, the protestant was absent and the case was adjourned by the Sub-divisional Magistrate, to be heard with the police case. On the subsequent dates however, when the protestant was present the magistrate passed (for order (that (his matter should be heard on file dates fixed for the police case in the order dated the 12th May, 1962, the Magistrate had clearly directed the protest petition to be heard on the 14th May, 1962, with the said police case and a similar order was repeated on the 14th May, 1962. On the 22nd May, 1962, the protest petition was taken up for hearing along with the police case and was adjourned to the next date to consider the case of the remaining three accused. On the 31st May, 1962, the Magistrate called for supplementary charge-sheet in the police case and amalgamated the case started on the protest petition the complaint case with the police case. Thus it will be seen that in material particulars the facts of the present case are similar in those of the case of Harbans Singh, AIR 1962 Pat 27 which were distinguished in the case of Md. Nabi Akhtar, 1965 BLJR 278 : (1966 Cri LJ 339(2)). Therefore, in my opinion, the decision of Md. Nahi Akhtar's case, 1965 BLJR 278. (1966 Cri LJ 339(2)) cannot govern the present case.

HJ/AGJ/D.V.C

39. Appeal dismissed.