JUDGMENT

Simpson, A J C - This is an application in criminal revision. The order complained of is one by the learned Sessions Judge of Lucknow refusing to interfere with an order of the District Magistrate. The District Magistrate's order was one transferring a case in the following circumstances:

2. Bhawani Din lodged a complains against the present applicant, Sri Krishan, charging him with an offence under Section 420, Indian Penal Code. This complaint was lodged before the Bench Magistrates of Kakori, who have power to take complaints. They took cognizance of the case on the complaint. They issued process and they proceeded to try the case. One Debi Dayal, Patwari, was produced as a prosecution witness. After hearing his deposition, the learned Magistrates transferred him from the witness-box to the dock. Thereupon, Debi Dayal applied for a transfer on the ground that the Magistrates had taken cognizance so far as he was concerned, under Section 190(1)(c), and, therefore, that Section 191 was applicable, and that he was entitled to be tried by some other Court. The District Magistrate, taking the same view of the law transferred the case to the Court of Syed Hasan Zaheer, I.C.S. Sri Krishan, co-accused, objecting to this transfer which had been made without hearing him applied in revision to the Sessions Judge. The Sessions Judge, taking the same view of the law as the District Magistrate, refused to interfere, holding that the District Magistrate was bound to act as he did. Sri Kishan and Shiam Lal, who are both accused in the case, now apply to this Court in revision.

3. The first point for decision is, whether the Magistrates when they put Debi Dayal in the dock, were acting under Section 190(1)(c). My own view is that they were not. I hold that when they put Debi Dayal in the dock they were not taking cognizance of the offence at all. They had already done that when they decided to issue process against the accused. As was pointed out by a Full Bench of the Court of the Judicial Commissioner of Sind in Mehrab v. The Grown A.I.R. 1924 Sind 71, a Magistrate takes cognizance of an offence, not of an offender. When he adds an accused person at any stage of the proceedings he is not acting under Section 190 at all. In Jagat Chandra Mazumdar v. Queen-Empress (1899) 26 Cal. 786, the facts were that a complaint was filed before a Magistrate against certain persons, of whom Jagat Chandra Mazumdar was not one. The Magistrate summoned and examined the complainant's witnesses before issuing process, Then, after hearing evidence, he drew up a charge-sheet against certain persons including the petitioner. It was held that cognizance had been taken under Section 190(1)(a) of the Code, and not under Section 190(1)(c).

4. In Dedar Bakhsh v. Syampada Das Malakar (1914) 41 Cal. 1013 there was a complaint before a Magistrate. There was a proceeding under Section 202, and there was a withdrawal of the complaint. The Magistrate refused to drop the case and ordered the witnesses to be summoned. After examining the witnesses he issued process against the petitioner. The learned Sessions Judge referred the matter to the High Court because he considered, that after the complaint was withdrawn, the action taken by the Magistrate would have to be under Section 190(1)(c); and that the Magistrate was not empowered to act under that section. The High Court, however, refused to interfere, considering that the Magistrate having begun to act under Section 190(1)(a) continued to do so. There were two of the petitioners who were made accused on evidence which came to light after the complaint. This case, therefore, also supports my view. No doubt there is a case to the contrary, namely, Khudiram Mookerjee v. Queen-Empress (4), but in that case no authorities were referred to and that case was itself considered in Dedar Bakhsh v. Syampada Das Malakar (1914) 41 Cal. 1013, and was by implication dissented from. I know of no other authority for the view taken