Case Note & Summary
The dispute arose from an incident on November 15, 1956, when the respondent, a businessman, was allegedly surrounded and assaulted by seven appellants armed with lathis on a village road, and robbed of Rs. 250. The respondent filed a complaint before the Sub-Divisional Magistrate, Gopalgunj, on November 22, 1956. The Magistrate examined the complainant under Section 200 of the Code of Criminal Procedure, 1898 and then passed an order directing the Sub-Inspector of Police, Baikunthpur, to institute a case and report by December 12, 1956. The police subsequently submitted a charge-sheet, and the accused were committed to the Court of Sessions. The Assistant Sessions Judge, Saran, tried the appellants for offences under Sections 395 and 323 of the Indian Penal Code, 1860 and acquitted them. The complainant then appealed to the Patna High Court under Section 417(3) of the Code of Criminal Procedure, 1898, which allowed the appeal, set aside the acquittal, convicted the appellants under Section 395 IPC, and sentenced them to two years rigorous imprisonment. The appellants appealed to the Supreme Court by special leave. The main contention was that the High Court had no jurisdiction to entertain the appeal because Section 417(3) permits an appeal by a complainant only where the case was instituted upon a complaint, and here the case was allegedly instituted on a police report. The Supreme Court rejected this argument. It held that when a Magistrate receives a complaint and applies his mind for proceeding under Chapter XVI of the Code, he takes cognizance of the offences. The examination of the complainant under Section 200 put it beyond doubt that cognizance had been taken on the complaint. Once cognizance was taken, the Magistrate could only direct police investigation under Section 202, not under Section 156(3). The order directing police to institute a case was therefore read as one under Section 202. Consequently, the case was instituted on the complaint, not on the subsequent police report, and the appeal under Section 417(3) was maintainable. The Court also held that the Magistrate's order was at most irregular and did not cause failure of justice. The Supreme Court dismissed the appeal and upheld the conviction and sentence.
Headnote
A) Criminal Procedure - Cognizance and Institution of Case - Taking cognizance under Section 190(1)(a) Code of Criminal Procedure, 1898 - When a Magistrate receives a complaint and applies his mind for proceeding under Chapter XVI, he takes cognizance; examination under Section 200 conclusively proves cognizance; case is instituted on complaint, not on subsequent police report - The respondent's complaint was filed before the Sub-Divisional Magistrate, who examined the complainant under Section 200 and then directed police to institute a case; although police submitted a charge-sheet, cognizance had already been taken on the complaint, so the case remained instituted on complaint; therefore appeal under Section 417(3) CrPC was maintainable - Held that the appellants' objection to maintainability was rejected (Paras 1-14). B) Criminal Procedure - Post-Cognizance Investigation - Section 202 and Section 156(3) Code of Criminal Procedure, 1898 - Once cognizance is taken on a complaint, a Magistrate can order police investigation only under Section 202, not under Section 156(3); an order using the words "for instituting a case" must be read as one under Section 202 because that was the only legal provision available; mere irregularity in wording does not vitiate proceedings absent failure of justice - The Magistrate after examining complainant ordered police to institute a case and report; the court read this as an order under Section 202 directing investigation, not an independent institution; the police officer's treatment of the complaint as FIR and submission of charge-sheet made no difference; the order was at most irregular and no failure of justice occurred - Held that the order was not without jurisdiction (Paras 15-24). C) Criminal Procedure - Appeal Against Acquittal by Complainant - Section 417(3) Code of Criminal Procedure, 1898 - Appeal by complainant lies only in cases instituted upon a complaint; where cognizance was taken on complaint under Section 200, the case is complaint case even if police later submitted charge-sheet; High Court had jurisdiction to entertain appeal and convict under Section 395 IPC - The High Court set aside acquittal and convicted the appellants under Section 395 IPC; Supreme Court upheld the maintainability of the appeal and the conviction - Held that the appeal to Supreme Court was dismissed (Paras 5-6, 13-24).
Issue of Consideration
Whether an appeal lay to the High Court under Section 417(3) of the Code of Criminal Procedure, 1898 when the Magistrate after taking cognizance on a complaint directed police to institute a case, and whether such order was without jurisdiction.
Final Decision
Supreme Court dismissed the appeal, holding that the appeal under Section 417(3) CrPC was maintainable because the case was instituted on complaint; the Magistrate's order was read as under Section 202 CrPC and was not without jurisdiction; High Court conviction under Section 395 IPC and sentence of two years rigorous imprisonment were upheld.
Law Points
- When a Magistrate applies his mind for proceeding under Chapter XVI CrPC on a complaint
- he takes cognizance
- examination under Section 200 proves cognizance
- once cognizance taken
- police investigation can only be under Section 202
- not Section 156(3)
- order using words 'for instituting a case' is read as under Section 202
- case instituted on complaint if cognizance taken on complaint
- despite later police report
- appeal under Section 417(3) lies only in complaint cases
- irregular wording not fatal absent failure of justice.
