JAMUNA SINGH AND OTHERS versus BHADAI SAH

Citation: [1964] 5 S.C.R. 37 · Decided: 04-10-1963 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

·< 
5 S.C.R. 
SUPREME COURT REPORTS 
37 
JAMUNA SINGH AND OTHERS 
v. 
BHADAI SAH 
(B.P. SINHA, C.J., M. HIDAYATULLAH AND K.C. DAS 
GUPTA JJ.) 
Criminal Trial-Cognizance of an offence on a complain!, 
when taken-Magistrate proceeding um/er prol'isions of Chapter 
XVI of the Code, if amount to taking cognizance-Appeal against 
acquittal by complainant under s. 417 (3)-Propriety of-Code of 
Criminal Procedure, 1898 (V of 1898), ss. 190(1), 200-204 and 417(3). 
The respondent lodged a complaint before the Sub-Divisional 
Magistrate alleging that the appellants assaulted him with lathis 
and forcibly took away currency notes from his pocket. After 
completing the examination under s. 200 of the Code of Criminal 
Procedure, the Magistrate made the following order "Examined 
the complaint on s.a. The offence is cognizable one. To S.l. 
Baikunthpur for instituting a case and report by 12.12.56." Ulti-
mately, a charge-sheet was submitted by the police and the appellants 
were committed to the court of sessions but the trial ended in acquit-
tal. 
On appeal by the respondent under s. 417(3) of the Code 
of Criminal Procedure, the order of acquittal was set aside by the 
High Court and the appellants were convicted under s. 395 of the 
Penal Code and sentenced to two years rigorous i1nprisonment. 
It was mainly urged on behalf of the appellants that in this case 
no appeal lay to the High Court under s. 417(3) as the case against 
them was not instituted on any complaint but on a police report. 
Held: (i) When on 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 purposes of ordering investigation under s. 156( 3) 
or· issues a search warrant for the purpose of investigation, he 
cannot be said to have taken cognizance of any offence. 
R.R. Chari v. State of U.P., [1951] S.C.R. 312 and Copa! Das 
v. State of Assam, A.LR. 1961 S.C. 986, applied. 
In the present case, as it is clear from the very fact that the 
Magistrate took action under s. 200 of the Code of Criminal Pro-
cedure, that he had taken cognizance of the offences mentioned 
in the complaint, it was open to him to order investigation only 
under s. 202 and not under s. 156(3) of the Code of Criminal Pro-
cedure. Therefore, it must be held that though the Magistrate 
used the words "for instituting a case" in his order he was actually 
taking action under s. 202 of the Code, that being the only section 
under which he was in law entitled to act. 
1963 
October 4; 
1963 
Ja111una Singh 
and others 
v. 
Bhadai Sah 
Das Gupta J. 
38 
SUPREME COURT REPORTS 
[1964] 
/ 
Cognizance having already been taken by the Magistrate { 
-
before he made the order there was no scope of cognizance being 
taken afresh of the same offence after the police officers' report 
was received. Thus the case was instituted on complaint and not 
on the police report submitted later. The contention therefore 
that the appeal did not lie under s. 417(3) must be rejected. 
(ii) The order of the Magistrate asking the police to institute 
a case and to send a report should properly and reasonably be read 
as one made under s. 202 of the Code of Criminal Procedure. So 
the contention that he acted without: jurisdiction cannot be accepted. 
At most it might be said that in so far as he asked the police to 
institute a case he acted irregularly, but there is no reason to 
think that it has resulted in any failure of justice. 
CRIMINAL APPELLATE 
JURISDICTION: Criminal 
Appeal No. 56 of 1960. 
Appeal by special leave from the judgment and 
order dated November 27, 1959 of the Patna High 
Court in Criminal Appeal No. 63 of 1957. 
D. P. Singh, for the appellants. 
K. K. Sinha, for the respondent. 
October 4, 1963. 
The Judgment of the Court was 
delivered by 
DAS GUPTA J.-These seven appellants were tried 
by the Assistant Sessions Judge, Saran, on charges 
under s. 395 of the Indian Penal Code and also under 
s. 323 of the J ndian Penal Code but were acquitted by 
him of both the charges. 
The prosecution case was that on November 15, 
1956 when Bhadai Sah, a businessman belonging 
-
to Teotith, within police station, Baikunthpur, was 
passing along the village road on his way to purchase 
patua, the seven appellants armed with lathis sur

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