Judgment

FAZAL ALI, J. - Whether or not a Magistrate after receiving a complaint and after directing investigation under Sec. 156 (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) and on receipt of the final report from the police can issue notice to the complainant, record his statement and the statements of other witnesses and then issue processes under S. 204 of the Code is the question of law that falls for consideration in this appeal.

2. This is an appeal by certificate granted by the High Court under Art. 134 (1) (c) of the Constitution. The answer to the proposition mentioned above would naturally depend on the true and proper interpretation of the scope and ambit of Sections 156 (3), 190, 200, 202 and 204 of the Code.

3. Before embarking on this enquiry it may also be necessary to consider the legal import and significance of the term "taking cognizance" as used in Sections 190, 200 and 202 of the Code. Before however considering the various aspects of the matter it may be necessary to summarise the facts which have led to the enquiry in the appeal before us.

4. A criminal case was registered by the Police Officer, Police Station, Guru Har Sahai on the basis of F.I.R. filed by Avinash Chandra against Mohd. Sadiq and others for having caused the murder of one Balbir Singh. This case was committed to the Court of Sessions by the Committing Magistrate. A cross complaint appears to have been filed before in the Court of Judicial Magistrate, First Class, Ferozepore on 30th December, 1974 by Kishore Singh the brother of the accused (sic) (deceased) Balbir Singh containing a counter version of the occurrence mentioned in the case registered by the police. On receipt of the complaint the Magistrate ordered the police to investigate the case under Section 156 (3) of the Code by his order dated 1-1-1975. The police submitted a final report on 8-3-1975 indicating that no case was made out against the accused. The Court after considering the report on 2nd April, 1975 ordered that notice may be issued to the complainant to appear before him. Consequently, the complainant appeared along with his witnesses before the Magistrate and his statement was recorded on 22nd May, 1975. On 23rd May, 1975 i.e. the next day the Magistrate issued process against the accused by directing a non-bailable warrant against the accused and summoned them under Ss. 304/149 & 148 of the Code. The accused appellants moved the High Court for quashing the order of the Magistrate on the ground that the Magistrate having once ordered investigation under S. 156 (3) of the Code was not competent to revive the complaint and issue process against the accused. The High Court held that no case for quashing the order of the Magistrate was made out inasmuch as the Magistrate had issued process against the accused after taking due cognizance of the case and applying his mind and recording the statement of the complainant. Thereafter the appellants prayed for a certificate for leave to appeal to this Court which was granted.

5. We may mention at the outset that we are not at all concerned with the merits of the case and the learned counsel Mr. D. Mukherjee appearing for the appellants has argued only a pure point of law before us. He has contended that the Magistrate after having referred the matter for investigation to the police was not at all in law entitled to revive the complaint when the report was in favour of the accused. The Magistrate could at the most order re-investigation but could not have acted on the complaint which merged in the investigation by the police and lost its complete identity.

6. Mr. Harbans Singh, counsel for the respondent however submitted that the Magistrate had directed investigation under S. 156 (3) of the Code obviously before taking cognizance and after receiving the report he was not debarred from taking cognizance and proceeding with the complaint filed by Kishore Singh in accordance with law.

7. The quest