A Magistrate cannot take cognizance of the same offence twice, once on the basis of the police report and again on the basis of the private complaint. Once a Magistrate commits a case to the Court of Sessions, he becomes functus officio and cannot take any further action in the case, including taking cognizance of the same offence on the basis of a private complaint.

G.L. Gupta, J.-Through this Miscellaneous petition, petitioners Hiralal and six others have called in question the order dated 2-5-1998 passed by the learned Addl. Sessions Judge No. 2, Udaipur whereby he rejected the revision filed by the petitioners preferred against the order dated 5-4-1997 of the Addl. Chief Judicial Magistrate, Salumber.

2. Theshort facts of the case are that for the death of Smt. Hema, Ashok Kumar had lodged’ FIR No. 285/86 under Sections 304-B, 120-B, 306, 498-A, 201 and 406, IPC at Police Station Salumber and after investigation the police submitted a challan against Prakash, husband of the deceased only and submitted a report under Section 169, CrPC against two other accused named in the FIR Thereafter the learned Magistrate committed the case to the Court of Sessions vide order dated 14-3-1997. After that on 17-3-1997 complainant chose to file private complaint on 17-3-1997 making allegations against the petitioners, on which the learned Magistrate .recorded the evidence under Sections 200 and 202, CrPC and vide order dated 5-4-1997 summoned the petitioners as accused in the case. This order was challenged before the learned Sessions Judge by way of revision petition. The revision was heard by Addl. Sessions Judge No. 2 who vide impugned order upheld the order passed by the Magistrate.

3. Thecontention of Mr. Mehta is twofold. One, the Magistrate had already taken cognizance of the offences on the police report under Section 190(b), CrPC on the basis of police report and he had no power to take cognizance of the same offence on the private complaint subsequently as the taking of cognizance of the same offence twice is not permissible. Two, the Magistrate had already committed the case to the Court of Sessions vide order dated 14-3-1997, and therefore, he had become functus officio so far as the cognizance of the offence under Section 190, CrPC is concerned, and hence he has committed error in proceeding to record the evidence of the complainant in the private complaint.

4. The learned Public Prosecutor and Mr. Mathur have not been able to support the impugned orders.

5. Thereis merit in the contention of Mr. Mehta that cognizance could not be taken twice by the Magistrate in

respect of the same offences. Section 190, CrPC is reproduced hereunder. 190. Cognizance of offences by Magistrate.--(1) Subject to the provisions of this Chapter any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any

.(a) upon receiving a complaint of facts which constitute such offence;

.(b) upon a police report of such facts;

.(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

.(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

6. Aplain reading of Section 190, CrPC shows that under Section 190, CrPC the Magistrate takes cognizance of an offence and not against any particular accused. Therefore, when once cognizance of the offence is taken by the Magistrate, may be on the basis of private complaint or on the basis of the police report, or upon information received from any person other than the police officer, he may issue process under Section 204, CrPC against the accused persons who are alleged to have committed the offence.

7. The cognizance on the basis of the police report is taken when the Magistrate applies his mind to the facts contained in the police report filed under Section 173, CrPC In the case of a private complaint, the stage of taking cognizance is when the Magistrate embarks upon the enquiry under Sections 200 and 202, CrPC Once the Magistrate takes the cognizance of the offence either on the basis of the private complaint or on the police report, it is not permissible tha