A Magistrate is not bound to take cognizance of an offence on the filing of a complaint. He may send the complaint to the police for investigation under S. 156 (3) of the Code.

Headnote:
CRIMINAL PROCEDURE CODE - S. 190 - Taking cognizance of offence - Magistrate's discretion - Magistrate not bound to take cognizance on filing of complaint - May send complaint to police for investigation under S. 156 (3) - Magistrate's order sending complaint to police for investigation - Not a transfer of case under S. 192.
Fact of the Case:

The appellants were charged with an offence under S. 448 of the Indian Penal Code. They challenged the legality of the proceedings on the ground that the Magistrate had no jurisdiction to direct the police to investigate the case and that the charge framed against them was illegal.
Finding of the Court:

The Court held that the Magistrate had not taken cognizance of the offence on the complaint filed before him and that he was, therefore, not bound to proceed under Chapter XVI of the Code. The Court further held that the Magistrate's order sending the complaint to the police for investigation was not a transfer of case under S. 192 and that the irregularity in framing the charge was curable under S. 537.
Issues: 1. Whether the Magistrate had jurisdiction to direct the police to investigate the case? 2. Whether the charge framed against the appellants was illegal? 3. Whether the matter was merely a civil dispute rather than an offence having been committed under the Indian Penal Code?
Ratio Decidendi: 1. The Court held that the Magistrate had not taken cognizance of the offence on the complaint filed before him and that he was, therefore, not bound to proceed under Chapter XVI of the Code. The Court further held that the Magistrate's order sending the complaint to the police for investigation was not a transfer of case under S. 192. 2. The Court held that the irregularity in framing the charge was curable under S. 537.
Final Decision: The appeal was dismissed.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points summarized:

A Magistrate is not obligated to take cognizance of an offence immediately upon the filing of a complaint. Instead, the Magistrate has the discretion to either proceed under Chapter XVI of the Criminal Procedure Code or send the complaint to the police for investigation under S. 156 (3) of the Code (!) (!) .
The act of sending a complaint to the police for investigation does not constitute a transfer of the case under S. 192 of the Criminal Procedure Code, especially if the Magistrate has not taken cognizance of the offence at that stage (!) .
The order of a Magistrate directing the police to investigate a complaint is an administrative action and does not necessarily imply that the Magistrate has taken cognizance of the offence (!) .
The question of whether a Magistrate has taken cognizance hinges on whether the Magistrate has applied his mind to the facts of the complaint for the purpose of proceeding with the case. Merely directing investigation does not amount to taking cognizance (!) .
The procedure followed by a Magistrate in framing charges must align with the nature of the offence; irregularities in procedure, such as using procedures meant for warrant cases in a summons case, are curable if no prejudice is caused to the accused (!) .
Whether an offence is civil or criminal is a matter to be determined by the court trying the case, especially when a charge has been framed. The court will decide if the offence has been committed under the Indian Penal Code or if the matter is purely civil in nature (!) .
The appeal in the case was dismissed, reaffirming that procedural irregularities that do not prejudice the accused can be rectified and do not invalidate the proceedings (!) .

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Judgment

IMAM, J. : This is an appeal by special leave against the decision of the Assam High Court dismissing the appellants petition under section 439/561-A of the Code of Criminal Procedure read with Art. 227 of the Constitution.

2. The appellants alleged that they were tenants of respondents Rameshwar Lal Bazaz, owner of the premises in Holding No. 56 of Ward 6 of the Gauhati Municipal Board. A dispute had arisen between the appellants and respondents Rameshwar Lal Bazaz concerning this holding which led to criminal and civil proceedings. The civil suit filed by the respondent Rameshwar Lal Bazaz was Title Suit No. 21 of 1958, and the civil suit filed by the appellants was Title Suit No. 78 of 1957. One of the criminal proceedings was under S. 145, which was compromised on May 24, 1957, resulting in a Hath-chitha in favour of the appellants fixing a monthly rent of Rs. 125 for the first floor of the holding in question. The ground floor was already leased out to the appellants at Rs. 325 per month. By this compromise of May 24, 1957, the respondent Rameshwar Lal Bazaz has undertaken to erect a structure on the 1st floor. The total rent for the ground floor and the 1st floor was fixed at Rs. 450 per month. It appears, however, that in spite of the compromise there was trouble between the appellants and the respondent Rameshwar Lal Bazaz, resulting in a complaint being filed on August 3, 1957, before the Additional District Magistrate against the appellants under Ss. 147, 323, 342 and 484 of the Indian Penal Code. On September 2, 1957, at the instance of the respondent Rameshwar Lal Bazaz, a second proceeding under S. 145 of the Code of Criminal Procedure (case No. 232 of 1957) was started. Title Suit No. 21 of 1958, filed by the respondent Rameshwar Lal Bazaz, was, for ejectment of the appellants and Title Suit No. 78 of 1957, filed by the appellants, was for specific performance of the contract between them and the respondent Rameshwar Lal Bazaz and for executing a formal deed of tenancy. In this appeal we are not concerned with the proceedings under S. 145 (case No. 232 of 1957), which were dropped on April 9, 1958. Nor are we concerned with the Title Suit Nos. 78 of 1957 and 21 of 1958 filed by the appellants and respondent Rameshwar Lal Bazaz respectively. The criminal case with which we are concerned is G. R. Case No. 1403 of 1957 against the appellants for an offence alleged to have been committed by them under S. 448 of the Indian Penal Code.

3. As already stated, the respondent Rameshwar Lal Bazaz filed his complaint on August 3, 1957, before the Additional District Magistrate against the appellants for offences alleged to have been committed by them under Ss. 323 342 and 448 of the Indian Penal Code. On this complaint the Additional District Magistrate made the following endorsement :

"To Shri C. Thomas, Magistrate 1st Class for disposal."

Mr. Thomas on receiving the complaint directed the Officer Incharge of Gauhati Police Station. "To register a case, investigate and if warranted submit charge-sheet by 23rd August, 1957." The police, after investigation, on October 10, 1957, submitted a charge sheet against the appellants under S. 448 of the Indian Penal Code only to the Additional District Magistrate. On receiving the charge-sheet, the Additional District Magistrate on October 23, 1957, recorded the following order in the order sheet of G. R. Case No. 1403 of 1957 (State v Gopal Das and two others) :-

"C. S. receiving against accused (1) Gopal Das (2) Bulchand (3) Khemchand under section 448, I. P. C., who are on police bail. To Shri R. Goswami, Magistrate, of favour of disposal please."

On November 25, 157, Mr. Goswami framed a charge purporting to act under S. 251-A of the Criminal Procedure Code. A petition for revision to the Additional District Magistrate was dismissed on November 27, 1957. Thereafter the appellants moved the Assam High Court under S. 439/561-A of the Code of Criminal Procedure and Art. 227 of the

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1961 Supreme(SC) 25

A Magistrate is not bound to take cognizance of an offence on the filing of a complaint. He may send the complaint to the police for investigation under S. 156 (3) of the Code.

Cases Referred (2)