The Magistrate's discretion in taking cognizance is a judicial discretion that must consider the facts and circumstances of each case, including police reports and delays.

The question involved in this case is whether the Judicial Magistrate of the First Class, Ponnani has committed any illegal irregularity or impropriety in the matter of taking cognizance of the offences under Sections 341, 324, 307 and 427 read with Section 34 of the Indian Penal Code as also Section 3 read with Section 25 of the Arms Act against the petitioners herein. The F.I. statement was taken based on Ext. A1 complaint presented by the first respondent on 27-9-96 with regard to an incident which is alleged to have taken place more than 4 years preceding the said date, on 22-9-92. According to the petitioners, the Court below has committed an abuse of the process of the Court in the matter of taking cognizance, not only because of the inordinate delay involved in the matter, but also because of the gross negligence on the part of the complainant to prosecute his cause with due diligence. Yet another irregularity pointed out is the failure on the part of the learned Magistrate to call for and verify the result of investigation conducted by the police earlier with regard to the very same occurrence.

2. On 22-9-92, Crime No. 144/92 of Changaramkulam Police Station was registered by the 1st petitioner herein alleging offence under Sections 341 and 506(2) of the Indian Penal Code as also Section 3 read with Section 25 of the Arms Act against the present 2nd respondent. On the very next day, based on information given by the present 2nd respondent, Crime No. 147/92 of the very same Police Station was also registered. In due course, Crime 144/92 ended up in a charge-sheet while the latter case ended up in a refer report, produced in the case as Annexure A2, on 20-11-92.

3. According to the learned counsel for the petitioners, based on the charge-sheet in Crime No. 144/92, C.C. 70/95 of the J.F.C.M. Court, Ponnani was proceeded with and the case has progressed in the matter of trial and soon after the incident, the 2nd respondent fled from India and worked abroad. It was only on 27-9-96 that he thought it fit to file a private complaint with regard to the very same cause of action, as was mentioned in Crime No. 147/92. The impact of the cognizance taken pursuant to Annexure-A1 complaint is that it may have to be treated as a counter case to C.C. 70/95 and even the proceedings held in the case so far may be affected. It is pointed out that in this state of affairs, the private complaint filed by the 2nd respondent should not have been entertained at all.

4. I have heard the learned counsel appearing for the respondents as also the learned public prosecutor.

5. There is no doubt at all that Section 202 gives the discretion to the Magistrate in the matter of taking cognizance of an offence. Postponing the issue of process and enquiring into the case or directing an investigation by the Police will arise only if he does not straightaway deem it fit to take cognizance. Nevertheless, the discretion involved in the matter is a judicial discretion which has to be exercised taking into account the facts and circumstances of each case.

6. The main question that has to be decided in the case is whether in the nature of the case, the final report filed by the police in Crime No. 147/92 aforementioned should have been taken into account before taking cognizance of the case. No decision of this Court or of the Supreme Court has been placed before me which will throw light on the above aspect. But the learned counsel for the petitioners placed reliance of the decision in Daleep Singh v. Smt. Magan, 1996 Cri LJ 190 (Raj). The contention raised in that case was that the Magistrate was bound to send for the report of the S.H.O. in the matter of final report filed based on the information given by the complainant in the private complaint before taking cognizance. The learned Judge of the Rajasthan High Court who decided the case dealt with the same in some extenso.

7. The court noted that the scope of enquiry under Section 202 is the as