( 1 ) THIS revision petition has been filed by one Shri Daualt Ram assailing the order passed by the Additional Sesions Judge dated 18th February, 1991 thereby discharging the accused Rajinder Motwani and dismissing the complaint of the petitioner under Section 211/500 Indian Penal Code.

( 2 ) IN brief, the facts of this case are that the petitioner is a landlord/owner of property bearing No. 3493, Gali Lallu Nissar, Qutub Road, Sadar Bazar, Delhi, and one Shri Sajjan Dass of Narain Market, was a tenant under him in respect of one room used as a godown on a monthly rent of Rs. 25. 00. The said Sajjan Dass vacated the said godown in the first week of April, 1986. The respondent and his father in order to blackmail the petitioners, started claiming the tenancy in the name of their firm M/s. Popular Stores. This they claimed because once upon a time Sajjan Dass was a partner in the said concern. Since the petitioenr refused to recognise them as a tenant, the respondent and his father filed a civil suit on which a local commissioner was appointed to ascertain the possession of the party in the suit premises. The local commissioner found that the respondent was not in possession of the alleged godown. Having failed in their object, the respondent tried to dispossess the petitioner through illegal help and backing of the police and also tried to implicate falsely the petitioner in criminal cases.

( 3 ) THE police officers visited the petitioner on 25/26th October, 1986 and informed him that there is a police report lodged against him for dispossessing the respondent and theft of articles and that he should report to the police station. The petitioner apprehending the arrest filed a complaint under Section 211/500-I. P. C, on 28th October, 1986. The bail was granted on 4th November, 1986. The police official while contesting the bail application brought on record the report filed by the on the day when he applied his mind and passed the order of summoning. Therefore, the complaint which was filed by the petitioner dated 28t October, 1986 is hit by the Provisions of 195 (l) (b), Criminal Procedure Code. Besides filing this complaint, he also applied for anticipatory bail which was granted to him on 4th November, 1986. Anticipatory bail was sought on 31. 10. 1986 because of the complaint filed by the responsdent against the petitioner regarding the theft. This amounted to institution of proceedings. In view of the pendency of the proceeding, the Magistrate could not have taken cognizance on a private complaint on 4th February, 1987 nor could have issued the summons to the respondent. The allegation contained in the complaint filed by the petitioner, in fact arose out of the complaint filed by the respondent. Hence, it was the Court alone which could have taken action, but would not have entertained a private complaint. Taking cognizance on a private complaint in such like circumstances amounts to misuse of the power by the Magistrate. Since the Magistrate exceedd his jurisdiction hence the Additional Sessions Judge was justified in quashing the order. Since the complaint itself was not maintainable, hence the revision is also not maintainable.

( 4 ) ON the other hand, Mr. G. D. Gandhi appearing for the petitioner contended that Magistrate took cognizance on the day the petitioner filed the complaint i. e. 28th October, 1986 when the complaint was taken on record, it amounted to taking of the cognizance. Hence on 28th October, 1986, when the Magistrate took the cognizance no proceedings were pending. The F. I. R. is based on respondent s complaint made on 22nd November, 1986. His complaint dated 23rd October, 1986 had been concealed by the police throughout. Therefore, when he filed the complaint and Magistrate took cognizance on 28. 10. 1986, no proceedings were pending.

( 5 ) THE short and interesting point which has emerged from the contention raised by the parties is as to when the Magistrate took cognizance. Because