1. Robbery charges under Section 395 IPC — Acquittal by Sessions Court — Conviction by High Court on appeal by complainant under Section 417(3) CrPC. (Para 1 , 2 , 3 )
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1963 Supreme(SC) 236
SUPREME COURT OF INDIA
4th October, 1963.
B.P. SINHA, C.J.I., M. HIDAYATULLAH AND K.C. DAS GUPTA, JJ.
Jamuna Singh and others, Appellants
Versus
Bhadai Shah, Respondent.
Criminal Appeal No. 56 of 1960. 1542
Advocates appeared
D. P. Singh, Advocate, of M/s. Ramamurthi and Co. Advocates, for Appellants; Mr. K.K. Sinha, Advocate for Respondent .
Advocates:
D.P.Singh, RAMAMURTHI
D.P.Singh, RAMAMURTHI
Examination of a complainant under Section 200 of the Code of Criminal Procedure establishes that the Magistrate has taken cognizance of the offence on the complaint, rendering the case "instituted on a complaint" and thus appealable by the complainant under Section 417(3).
Headnote:(A) Code of Criminal Procedure - Sections 417(3), 190(1), 200, 202, 156(3) - Indian Penal Code - Section 395 - Right of complainant to appeal against acquittal - Case instituted upon a complaint - Cognizance of offence - When a Magistrate examines the complainant under Section 200 of the Code, it is evident that the Magistrate has taken cognizance of the offence on the complaint - Subsequent direction to police for investigation is an action under Section 202 and not Section 156(3) - Such a case is deemed to be instituted on a complaint, making it appealable by the complainant under Section 417(3). (Paras 5-13)
(B) Appeal against acquittal - Scope of interference - High Court is justified in setting aside an order of acquittal if the trial court rejected prosecution evidence on unsound standards without real effort to assess credibility, resulting in a failure of justice. (Para 14)
(C) Jurisdiction - An irregular order by a Magistrate directing police to "institute a case" after taking cognizance does not render subsequent proceedings void, provided it does not result in a failure of justice. (Para 15)
Facts of the case:
A complainant filed a petition of complaint regarding a robbery. The Magistrate examined the complainant under Section 200 of the Code and then directed the police to institute a case and report. The police subsequently submitted a charge-sheet. The trial court acquitted the accused, but the High Court, on appeal by the complainant, reversed the decision and convicted the accused.
Findings of Court:
The Magistrate's action of examining the complainant under Section 200 clearly indicates that cognizance was taken on the complaint. The subsequent police report is treated as a report under Section 202, not Section 173. Thus, the case was instituted on a complaint.
Issues: Whether the case was instituted on a complaint or a police report for the purpose of determining the maintainability of an appeal under Section 417(3) of the Code; whether the High Court was justified in reversing the acquittal; and whether the Magistrate's order was void for lack of jurisdiction.
Ratio Decidendi: The examination of a complainant under Section 200 of the Code of Criminal Procedure is conclusive evidence that the Magistrate has taken cognizance of the offence on the complaint. Consequently, the case is "instituted on a complaint," and any subsequent police investigation is an inquiry under Section 202, not a fresh institution of a case via police report.
Result: Appeal dismissed.
Judgement Key Points
Certainly. Based on the provided legal document, here are the key points summarized:
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The case involves an appeal against an order of acquittal by the Assistant Sessions Judge, which was subsequently set aside by the High Court, leading to a conviction and sentence (!) (!) .
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The main legal issue concerns whether the High Court had jurisdiction to hear the appeal under Section 417(3) of the Criminal Procedure Code, which allows a complainant to appeal against an acquittal only if the case was instituted upon a complaint, not a police report (!) (!) .
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The Court examined whether the case was instituted on a complaint or a police report. It was determined that the case was instituted on a complaint filed by the complainant, and the Magistrate took cognizance of the offence upon examining the complaint under Section 200 of the Code. This action indicated that the case was instituted on a complaint, not solely on a police report (!) (!) (!) .
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The order issued by the Magistrate to the police to institute a case and report was interpreted as being made under the proper legal provision (Section 202), not under Section 156(3), and the police report was regarded as a report under Section 202, not as the basis for institution of the case (!) (!) .
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The Court held that since the case was instituted on the complaint prior to the police report, the appeal was valid under Section 417(3), and the High Court's jurisdiction to hear the appeal was established (!) .
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The Court also reviewed the grounds for the High Court's interference with the acquittal, noting that the High Court conducted a thorough and careful examination of the evidence and that its decision was justified (!) .
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The argument that the Magistrate acted without jurisdiction in requesting the police to institute a case was rejected, as the order was within the scope of proper procedure, specifically under Section 202, and any irregularity did not result in a failure of justice (!) .
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The appeal was ultimately dismissed, affirming the validity of the conviction and sentence imposed by the High Court (!) (!) .
Please let me know if you need further analysis or clarification on any specific point.
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Table of Contents
2. Maintainability of appeal against acquittal under Section 417(3) CrPC — Dispute whether case was instituted on a complaint or a police report. (Para 5 , 12 , 15 )
3. Examination of complainant under Section 200 CrPC signifies taking cognizance — Subsequent police investigation ordered by Magistrate constitutes action under Section 202 CrPC. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 )
4. When a Magistrate examines a complainant under Section 200 CrPC, cognizance is taken, and the case is deemed instituted on a complaint. (Para 9 , 13 )
5. Appeal dismissed — Conviction and sentence passed by High Court upheld. (Para 14 , 15 , 16 )
6. When is a case considered instituted in a Magistrate's Court?
A case is instituted when the Court takes cognizance of the offence. Under Section 190(1) CrPC, this can occur upon receiving a complaint, a police report, or other information or the Magistrate's own knowledge. (Para 6 , 7 )
7. Does the examination of a complainant under Section 200 CrPC imply that the Magistrate has taken cognizance?
Yes. Section 200 CrPC requires a Magistrate taking cognizance of an offence on a complaint to examine the complainant and witnesses upon oath. Such examination confirms that the Magistrate has taken cognizance of the offences. (Para 9 , 12 )
8. What is the legal distinction between ordering an investigation under Section 156(3) and Section 202 CrPC?
An order under Section 156(3) is made before taking cognizance. Once a Magistrate has taken cognizance, any subsequent order for police investigation to ascertain the truth or falsehood of the complaint is an action under Section 202 CrPC. (Para 8 , 10 )
9. Does a police charge-sheet submitted after a Magistrate's order on a complaint change the nature of the case's institution?
No. If the Magistrate already took cognizance by examining the complainant under Section 200, the subsequent police report is treated as a report under Section 202 CrPC, and the case remains one instituted on a complaint. (Para 11 , 13 )
Judgment
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 Indian Penal Code but acquitted by him of both the charges.
2. 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 surrounded him and demanded that he should hand over the monies he had with him. Bhadai had Rs.250/- with him but he refused to part with them. Kesho Singh, one of the appellants tried to take away forcibly the currency notes from his pocket but Bhadai caught hold of his arm and raised an alarm. On this all the appellants assaulted him with their lathis and as he fell injured Kesho Singh took away the money from his pocket. Bhadai thereupon filed a petition of complaint in the Court of the Sub-Divisional Magistrate, Gopalganj, on November 22, 1956. The Magistrate after examining him on solemn affirmation made an order asking the Sub-Inspector of police, Baikunthpur, to institute a case and report by December 12,1956. Ultimately a charge-sheet was submitted by the police and the accused persons were committed to the Court of Sessions. The Sessions Trial ended, as already stated, in the acquittal of all the appellants.
3. Against the order of acquittal, Bhadai Sah filed an appeal under S. 417(3) of the Code of Criminal Procedure in the High Court of Judicature at Patna. On the following day two learned Judges of the High Court made the order : "The appeal will be heard". The appeal then came up for hearing before two other learned Judges of the Court who being of opinion that the learned Sessions Judge had rejected the prosecution evidence "on unsound standards without any real effort to assess the credibility of the evidence" and that the prosecution case was fully established by the evidence, set aside the order of acquittal and convicted the appellants under S. 395 of the Indian Penal Code and sentenced them to two years rigorous imprisonment.
4. Against this order of the High Court the present appeal has been filed by special leave of this Court.
5. The main contention urged in support of the appeal is that in this case no appeal lay to the High Court against an order of acquittal, under S. 417(3) of the Code of Criminal Procedure. This provision in S. 417 was introduced in the Code by the Amending Act XXVI of 1955, giving a complainant a right of appeal against acquittal where a case is instituted upon a complaint. Before this new legislation only the State Government had the right to appeal against an order of acquittal. The result of the new provision in sub-s. (3) is that if an order of acquittal is passed by any court other than a High Court in a case instituted upon a complaint the High Court on an application made to it by the complainant in this behalf may grant special leave to appeal from the order of acquittal and on such leave being granted the complainant may present such an appeal to the High Court. It is to be noticed that this right is limited only to cases instituted upon a complaint. On behalf of the appellants it is argued that the case against them was not instituted on any complaint but was instituted on a police report.
6. The Code does not contain any definition of the words "institution of a case". It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts - that is, facts constituting the offence - made by any police officer
