Murlidhar, J.:— The Chief Judicial Magistrate, Etab, disagreeing with a police final report in a case under Section 395/396 IPC summoned the accused by the following order:—
“Heard A.P.O Register case. Affidavits have been filed by P. Ws. Roshan Singh Kishori s/o Pearey Lal in support of the case on 6-6-1979 in the court. Summon all the accused mentioned in the F.I.R Fix 11-12-1979 for appearance.” Sd. B.G Saxena 26-11-1979. In a revision by the accused the Sessions Judge held that the Magistrate could not have taken cognizance on the basis of the final report as held in Shesh Nath Chaube v. State, 1978 ACrR 284 but could have taken cognizance under section 190(1)(c) OrPO on the basis of the two affidavits filed before him, He noted that the public prosecutor had conceded that where cognizance is taken under section 190(1)(c) the procedure to be adopted is that provided in a complaint case. On this basis he held that in a case exclusively triable by the court of session the Magistrate had to examine the complainant and all his witnesses as required by Section 200(2) CrPC before summoning the accused. Therefore, the order was held to be bad in law. The learned Judge went on to consider the material before the Magistrate on merits. He noted that the persons filing the affidavits while the case was still under investigation were not named in the first information report and were only chance witnesses, but the Magistrate had made no efforts to satisfy himself regarding the truthfulness of these witnesses before acting on their affidavits. Further that the accused were senior citizens and respectable persons and one of them was an Advocate aged about 70 years and an Ex-A D.G.O (Criminal) and President of the Bar Association. The other Dr, M.C Sharma, according to the learned Judge had on 11-8-1979 written to the Chief Judicial Magistrate by way of a third reminder regarding sum of Rs. 60/- due as compensation for professional loss about the doctor's evidence in that court on 21-7-1979 and this showed that the money was not paid to Dr. Sharma inspite of efforts and “Dr. M.C Sharma was perfectly justified in believing that he was being harassed by the Chief Judical Magistrate, Etah. The learned Judge recorded his opinion that Sri B.G Saxena, Chief Judicial Magistrate, Etah, was not guided wholly by the consideration of justice while recording the order summoning Dr. M.C Sharma and others by the impugned order. There is every likelihood that he used the opportunity which came his way by the first information report in question to harass Dr. M.C Sharma.” Holding that the final report should have been accepted and there was no material on record which may warrant the trial of the accused the Sessions Judge set aside the Magistrate's order. The complainant has come up in revision against this order.
2. The preliminary objection on behalf of the accused that this private revision against an order of refusal to take cognizance in police challani case should not be entertained is easily disposed of.
3. The Magistrate had taken the cognizance and in case the Sessions Judge in revision acted beyond his jurisdiction quashing the order it would clearly be a case of a manifest error on a point of law causing miscarriage of justice and this Court would not hesitate to exercise its revisional powers even at the instance of a private party.
4. Before taking up the merits of the Sessions Judge's order I must deprecate the inference of the Sessions Judge that the Magistrate was guided by oblique motives in ordering summoning of Dr. M.C Sharma, merely because before the order dated 26-11-1979 Dr. Sharma had written a number of times to the Magistrate about his unpaid professional loss compensation amount of Rs. 60/- for evidence dated 21-7-1979 and sent a copy of the last letter to the District Judge, Etah, also. This was a trivial routine matter, sending reminders about (?) which to the Presiding Officer or the District Judge is wholly immaterial and cannot be regarded as sufficient basis for annoyance let alone imputation of oblique motives in judicial orders. By making such observation the learned Sessions Judge opens himself to the suspicion of being guided by extraneous bias against the Magistrate in deciding the revision.
5. Coming to the legal position it has now been settled by the Supreme Court in H.S Bains v. State, 1980 AWC 619 that in case of a police final report the Magistrate can differ from the police view and take cognizance straight-away under section 190(1)(b) CrPC. In such cases the procedure to be followed would be the same as in case of taking congizance on a police report. Learned counsel has, however, strongly contended that Bains case (supra) had not been published when the impugned order was passed and therefore, the Magistrate did not act under section ISO (1) (b) CrPC and intended to take cognizance under section 190(1)(c) as was the then prevalent view based on Abhtnandan Jha v. Dinesh Misra, AIR 1968 SC 117. Therefore, the cognizance must be deemed to have been taken under section 190(1)(c) alone. Also that the Magistrate's reliance on the two affidavits filed before him makes it a case of cognizance under section 190(1)(c) and not under section 190(1)(b) CrPC. The observation in Abhinandan Jha's case (supra) have been interpreted as meaning that in case of disagreement with a final report the Magistrate had three alternatives: (1) he could direct the police to make further investigation under section 156(3) CrPC and if they again submitted a final report take cognizance under section 190(1)(b), (2) he could straightaway take cognizance under section 190(1)(c) CrPC and (3) in cases where the informant files a protest petition before the Magistrate take cognizance under section 190(1)(a) CrPC treating the protest petition as a complaint. But the important point is that the order in this case does not speak of taking cognizance under any particular clause. It is, also clear that cognizance was not taken under clause (a) of section 190(1) for in that case statement of the complainant under section 200 CrPC would have been recorded. Moreover, the affidavits in the present case were not of the informant Gajadhar Singh. So as to be capable of being treated as a protest petition by the informant as in this case cognizance, therefore, has to be regarded either under section 190(1)(b) or section 190(1)(c) CrPC. If so, it seems to me that irrespective of the Magistrate's intention cognizance has to be ascribed to the true source of Magistrate's power. In all final report cases where there is no formal complaint the essential basis for the Magistrate taking cognizance is the first information report and the material contained in the case diary, the reason for cognizance being that the Magistrate differs from the conclusion arrived at by the police. It is now clear from Bains case (supra) that cognizance can be taken under section 190(1)(b) CrPO and therefore, must be deemed to have been taken under that provision. Nor does the fact that some affidavits were filed before the Magistrate Can suffice to change the basis for taking cognizance. These affidavits ‘were only subsidiary and ancillary and the main basis remained the first Information report and the other material in the case diary. Therefore, I think in law the Magistrate's order has now after clarification of the true legal position in Bains case to be treated as a case of cognizance under section 190(1)(b) CrPC.
6. Assuming that cognizance was taken under section 190(1)(c) there is no ground for holding that the procedure to be followed must be that in a complaint case. Chapter 15 CrPC contains the procedure for complain to Magistrate and in the words of section 200 would apply in case of taking cognizance on complaint. This would obviously not hold good where cognizance is taken under section 190(1)(c) CrPC. The provisions applicable in case of such cognizance are found In Chapter 16. Section 204 CrPC which speaks of issue of process merely provides that if in the opinion of the Magistrate taking cognizance there is sufficient ground for proceeding he shall issue process of the attendance of the accused as provided in the section. Section 204(3) CrPC provides that in a proceeding instituted on a complaint a copy of the complaint shall accompany the process. There is the such requirement where cognizance has been taken under section 190(1)(c). Therefore, in such cases the Magistrate can straightaway issue summonses to the accused under Section 204(1) CrPC of course it is open to the Magistrate in a particular case to treat a protest petition as a complaint and there is same authority that where the protest petition happens to be by the informant he should do so. The present was not a case of a protest petition or affidavits by the informant ner did the Magistrate choose to treat the some as a complaint and follow the procedure of a complaint case. Now exclusively sessions triable cases of which cognizance is taken otherwise than on a police report are dealt with by section 208 CrPC. The Magistrate has to furnish to the accused copies of the various documents mentioned in that section and then if it appears proper commit the accused to the court of Session for trial under section 209 CrPC. It has no-where been provided that the procedure applicable to complaint cases in Chapter 15 of the new Code would apply to cases taken cognizance of under section 190(1)(c). It is not clear how the public prosecutor made this concession before the learned Sessions Judge about the complaint case procedure being applicable in all cases under section 190(1)(c) or in this case in particular. Probably he incorrectly treated this to be a case of a protest petition by the person who lodged the first information report. Whatever the reason may be the assumption even if leased on a concession by the public prosecutor that the complaint procedure was applicable in the case of cognizance under Sec. 190(1)(c) CrPC is incorrect and without any basis in law. The conclusion of the learned Sessions Judge, is, therefore, erroneous and there is no legal defect in the procedure adopted by the Magistrate even if we take it that cognizance was taken under section 190(1)(c) CrPC.
7. The learned Sessions Judge has travelled beyond his revisional jurisdiction in appraising the worth of the two affidavits filed before the Magistrate or the bearing of the status of the accused on the nature of the allegations in the complaint. The power of taking cognizance is vested in the Magistrate. It is true that it is a judicial act and therefore subject to the provisions of Sec. 397(2) CrPC subject to revision. It has, therefore to be remembered that the accused can raise the objection that there is no sufficient material for proceeding against him before the Magistrate. In cases exclusively triable by the court of session the first such stage is on his appearance when the Magistrate has to consider whether there is a case for commitment to the court of sessions under Sec. 209 CrPC. There is a subsequent stage before the court of sessions under section 227 CrPC. Cases of abuse of the process of court through institution of criminal proceedings in any of the ways under section 190(1)(c) can be remedied under section 482 CrPC. These apart it is only in very exceptional circumstances, if at all, that a court of revision should preempt the power of cognizance at the instance of the accused who do not choose to appear before the Magistrate and raise objection by filing a revision in the first instance. Again, the the scope of the revisional jurisdiction can only be to assess if the Magistrate's view is perverse. In other words if the material before him was such that no reasonable person could regard it as enough to summon the accused. The Sessions Judge has noted the FIR version that Gajadhar Singh applicant had a wooden stall and a hut on plot no. 507B on the Agra road for many years, that the three accused other than Dr. M.C Sharma on 19-5-1979 at 4 P.M had come with a number of other persons and had threatened him to remove his structures, on pain of dire consequences and that on 20-5-1979 at about 5 P.M the four accused and some others came and under the direction of Baheran Singh and Dr. Sharma others demolished the stall and Munna, Nanhey and some others set fire to the hut. There were also allegations of dragging of Gajadhar Singh's wife from the hut and stripping her of the ornaments by some miscreants. The learned Judge did not discuss what was the version of the accused about the age and existence of the stall and the hut, about the alleged demolition and burning of these structures, the rights, if any, claimed by them over this land and their alleged reasons for their false implication. Nor did he discuss the witnesses examined by the police or anyother relevant material in the case diary and the basis on which they found the story unproved. In this situation the finding of the learned Sessions Judge that there was no material before the Magistrate justifying an order for issue of the process must be held to be legally perverse.
8. The revision, therefore, succeeds and is allowed. The order of the Sessions Judge is set side and that of the Magistrate restored.
9. Revision allowed.