Jamuna Singh and Others vs Bhadai Sah

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 56 of 1960

Decision Date: 04/10/1963

Coram: K.C. Das Gupta, Bhuvneshwar P. Sinha, M. Hidayatullah

In this case, the Supreme Court of India recorded that the matter was titled Jamuna Singh and Others versus Bhadai Sah and that the judgment was delivered on 4 October 1963. The report was authored by K C Das Gupta and the bench comprised Justice K C Das Gupta, Justice Bhuvneshwar P Sinha and Justice M Hidayatullah. The petitioner was identified as Jamuna Singh and others, while the respondent was Bhadai Sah. The citation of the decision appeared in 1964 AIR 1541 and 1964 SCR (5) 37, with later references in several Supreme Court reports. The issues involved the procedure for taking cognizance of an offence on a complaint, the scope of a magistrate’s powers under Chapter XVI of the Code of Criminal Procedure, and the propriety of an appeal against an acquittal under section 417(3) of that Code. The headnote summarized the factual background: the respondent lodged a complaint before the Sub‑Divisional Magistrate alleging that the appellants assaulted him with lathis and forcibly removed currency notes from his pocket. After completing the examination required by section 200 of the Code of Criminal Procedure, the magistrate issued an order stating that the offence was cognizable, that the investigating officer of Baikunthpur should institute a case, and that a report should be submitted by 12‑12‑1956. A charge‑sheet was thereafter filed by the police, the appellants were committed to the Court of Sessions, and the trial concluded with an acquittal. The respondent appealed under section 417(3) of the Code of Criminal Procedure; the High Court set aside the acquittal, convicted the appellants under section 395 of the Penal Code and sentenced them to two years of rigorous imprisonment. The appellants argued that the High Court had no jurisdiction to entertain an appeal under section 417(3) because the case against them had been instituted on a police report rather than on the original complaint. The Court held that when a magistrate receives a petition of complaint and proceeds under the provisions of Chapter XVI, he is deemed to have taken cognizance of the offences specified in the complaint. Conversely, if the magistrate acts solely to order an investigation under section 156(3) or to issue a search warrant, cognizance is not deemed to have been taken. The Court referred to the decisions of R R Chari v. State of U P. (1951) SCR 312 and Gopal Das v. State of Assam (1961) AIR 986 as authorities. Applying this principle to the present facts, the Court observed that the magistrate’s action under section 200 demonstrated that cognizance of the offences in the complaint had indeed been taken, and therefore the magistrate could lawfully order an investigation only under section 202, not under section 156(3). Consequently, although the magistrate used the phrase “for instituting a case” in his order, the proper interpretation was that he was acting under section 202, the only provision that authorized his action.

In the order that used the phrase “for instituting a case,” the magistrate was in fact exercising the power granted by section 202 of the Code of Criminal Procedure, which was the sole provision that authorized his action. Because the magistrate had already taken cognizance of the offences when he initially dealt with the complaint, there was no opportunity for him to take cognizance again of the same offence after receiving the police officers’ report. Consequently, the case was deemed to have been instituted on the basis of the complaint rather than on the later police report. The argument that the appeal could not be brought under section 417(3) of the Code of Criminal Procedure was therefore rejected. The magistrate’s directive to the police to institute a case and to submit a report must be properly understood as an order made under section 202 of the Code. Accordingly, the claim that the magistrate acted without jurisdiction cannot be sustained. At most, it could be said that his request to the police to institute a case was irregular, but there is no basis to conclude that any such irregularity caused a failure of justice. The judgment proceeded under the criminal appellate jurisdiction concerning Criminal Appeal No. 56 of 1960, which was filed by special leave against the judgment and order dated 27 November 1959 of the Patna High Court in Criminal Appeal No. 63 of 1957. Counsel for the appellants and counsel for the respondent appeared, and the judgment was delivered on 4 October 1963 by Justice D. A. S. Gupta. The seven appellants had been tried before the Assistant Sessions Judge of Saran on charges under section 395 and section 323 of the Indian Penal Code, and the trial judge had acquitted them of both charges. The prosecution alleged that on 15 November 1956, Bhadai Sah, a businessman from Teotith in the Baikunthpur police station area, was traveling along a village road to purchase patua when the seven appellants, armed with lathis, surrounded him and demanded the money he carried. Bhadai possessed Rs 250 but refused to surrender it. One of the appellants, Kesho Singh, attempted to seize the notes forcibly; Bhadai grasped Kesho’s arm and raised an alarm. In response, the appellants assaulted Bhadai with their lathis, and when he fell injured, Kesho Singh took the money from his pocket. Bhadai subsequently filed a petition of complaint in the Sub‑Divisional Magistrate’s Court at Gopalgunj on 22 November 1956. After taking his solemn affirmation, the magistrate ordered the Sub‑Inspector of police at Baikunthpur to institute a case and to submit a report by 12 December 1956. A charge‑sheet was later filed by the police, and the accused were committed to the Court of Sessions. The Sessions trial concluded with the acquittal of all the appellants, after which Bhadai Sah filed an appeal under section 417(3) of the Code of Criminal Procedure in the High Court.

On the day following the High Court’s order that the appeal would be heard, two other learned judges of that Court examined the matter. These judges concluded that the learned Sessions Judge had rejected the prosecution evidence on unsound standards and without genuine effort to assess its credibility. Consequently, they set aside the acquittal order, found the prosecution case fully established by the evidence, convicted the appellants under section 395 of the Indian Penal Code, and sentenced each of them to two years of rigorous imprisonment.

The appellants subsequently filed the present appeal before this Court, seeking special leave. Their principal argument is that, under section 417(3) of the Code of Criminal Procedure, no appeal lies to the High Court against an order of acquittal. This provision, introduced by the Amending Act XXVI of 1955, gave a complainant the right to appeal an acquittal when a case was instituted upon a complaint. Prior to that amendment, only the State Government possessed such a right.

Section 417(3) provides that if an order of acquittal is rendered by any court other than a High Court in a case instituted upon a complaint, the complainant may apply to the High Court for special leave to appeal. If the High Court grants that leave, the complainant may then present an appeal before it. It is important to note that this statutory right is confined solely to cases that were instituted on a complaint.

The appellants contend that the proceeding against them was not instituted on a complaint but rather on a police report. The Code does not expressly define “institution of a case,” yet it is undisputed that a case is instituted when a court takes cognizance of the alleged offence. Section 190(1) of the Code of Criminal Procedure outlines three modes by which a magistrate may take cognizance: (i) upon receiving a complaint of facts constituting the offence, (ii) upon receiving a written report of such facts from any police officer, and (iii) upon information from any person other than a police officer or based on the magistrate’s own knowledge or suspicion. Section 193 authorises courts of sessions to take cognizance of offences that have been committed to them by a duly empowered magistrate, while Section 194 provides for cognizance being taken by the High Court.

It became evident from an examination of the statutory provisions that when a magistrate exercised cognizance of an offence on the basis of a complaint containing the relevant facts, the proceeding was deemed to be instituted in the magistrate’s court as a case instituted on a complaint. Similarly, when a magistrate exercised cognizance on the basis of a written report of the facts prepared by a police officer, the proceeding was regarded as a case instituted in that court on a police report. To determine whether the proceeding in which the appellants were initially acquitted and later convicted had been instituted on a complaint, the Court needed to ascertain whether the Sub‑Divisional Magistrate at Gopalgunj, whose court had jurisdiction over the matter, had taken cognizance of the alleged offences on the complaint filed by Bhadai Sah on 22 November 1956 or on the police‑officer’s report dated 13 December 1956. The law was settled that when a magistrate, upon receipt of a complaint, applies his mind to the provisions of Chapter XVI of the Code of Criminal Procedure, he is held to have taken cognizance of the offences specified in that complaint. Conversely, if the magistrate’s contemplation was directed toward ordering an investigation under section 156(3) or issuing a search warrant for investigative purposes, such contemplation did not amount to taking cognizance of any offence, a principle affirmed by the Court in R.R. Chari v. State of U.P. and reiterated in Gopal Das v. State of Assam. In the present matter, after receiving Bhadai Sah’s complaint, the magistrate proceeded to examine the complainant under section 200 of the Code of Criminal Procedure. Section 200 expressly requires that a magistrate who takes cognizance of an offence on a complaint must immediately examine the complainant and any witnesses present, administering oath to them. This statutory requirement, performed by the magistrate, conclusively demonstrated that he had taken cognizance of the offences alleged in the complaint. Having completed the examination and recorded its substantive contents in writing as mandated by section 200, the magistrate possessed two immediate options: he could have issued a process under section 204 or dismissed the complaint under section 203. Additionally, before electing either of those routes, he was empowered by section 202 to postpone the issuance of process, compel the attendance of the accused, and either conduct an enquiry himself or, if he was not a magistrate of the third class, direct an enquiry or investigation to be carried out by any subordinate magistrate or police officer, or by any other person he deemed appropriate for ascertaining the truth or falsity of the complaint.

The Court referred to the statutory provision that empowers a magistrate, after taking cognizance of a complaint, to direct a subordinate magistrate, a police officer, or any other person deemed appropriate to conduct an investigation for the purpose of determining the truth or falsity of the allegation. The Court explained that when such an investigation or inquiry is ordered, its outcome must be considered before the magistrate takes any action under section 203 of the Code of Criminal Procedure. In the present case, the magistrate had completed the examination required by section 200, recorded the substance of that examination, and then issued an order that read, “Examined the complaint on s.a. The offence is cognizable one. To S.I. Bakunthpur for instituting a case and report by 12.12.56.” The Court observed that if the magistrate had employed the words “for investigation” instead of “for instituting a case,” the order would have plainly fallen under section 202 of the Code. However, the Court held that the choice of wording did not alter the legal character of the order; the magistrate was nevertheless acting under section 202, the only provision that authorised such a step once cognizance had been taken.

The Court further noted that the magistrate was not obligated to take cognizance of the offences merely upon receipt of the complaint. He could have, without assuming cognizance, directed a police investigation under section 156(3). Yet, after he had taken cognizance by acting under section 200, any subsequent direction to investigate could only be made under section 202 and not under section 156(3). Because the magistrate’s earlier action under section 200 demonstrated that he had indeed taken cognizance, the only lawful basis for ordering an investigation was section 202. Consequently, the Court concluded that despite the magistrate’s use of the phrase “for instituting a case” in the November 22, 1956 order, the order was effectively an exercise of power under section 202, the sole provision permitting such action at that stage. The Court also held that the police officer’s handling of the complaint copy as a first‑information report and the subsequent filing of a charge‑sheet could not change the legal nature of the magistrate’s order. Accordingly, the report submitted by the police officer, although styled as a report under section 173, must be treated in law as a report made pursuant to section 202. The Court reiterated that section 190 allows a magistrate to take cognizance on the basis of a police report, a point that was raised by the counsel representing the appellants.

The counsel for the appellants asserted that the magistrate’s order dated 22 November 1956 was intended to defer taking cognizance until the police report had been received, specifically a charge‑sheet filed under section 173 of the Code after 13 December 1956. This contention faced a decisive obstacle because the magistrate had already examined the complainant pursuant to section 200 of the Code of Criminal Procedure. That examination was predicated on the assumption that cognizance had already been taken, and the magistrate’s order directing the Sub‑Inspector of Baikunthpur to institute a case and report by 12 December 1956 could not be said to have been issued before cognizance was taken. Consequently, the magistrate could not later reacquire cognizance of the same offence after the police report arrived. The logical conclusion was therefore that the case had been instituted on the basis of Bhadai Sah’s complaint on 22 November 1956, not on the later police report. As a result, the argument that the appeal was not maintainable under section 417(3) of the Code of Criminal Procedure was rejected.

The appellants further contended that the High Court lacked justification in setting aside the acquittal order issued by the learned Assistant Sessions Judge. The record contained the Assistant Sessions Judge’s reasoning for rejecting the prosecution witnesses and the High Court judges’ view that the Sessions Judge had failed to properly evaluate the credibility of the evidence. The Court observed that the High Court had examined the matter in a thorough and careful manner, and after detailed consideration it concluded that the assessment of evidence resulted in a serious miscarriage of justice. The principles articulated by this Court in earlier decisions concerning interference with acquittal orders were correctly applied by the High Court, leaving no ground for a fresh assessment of the evidence by this Court. Although portions of the evidence were placed before the Court, it found the High Court’s decision to be satisfactory. Finally, the counsel argued that the magistrate acted without jurisdiction by directing the police to institute a case, alleging that all subsequent proceedings were void. The Court had already explained that the magistrate’s direction should be read as an order made under section 202 of the Code, and therefore the claim of lack of jurisdiction could not stand. At most, the magistrate’s act might be described as irregular, but there was no basis to infer that such irregularity caused any failure of justice, and the conviction and sentence upheld by the High Court therefore remained intact.

It was observed that the order directing the police to register a case had been issued pursuant to section 202 of the Code of Criminal Procedure. Consequently, the contention put forward that the magistrate had acted without jurisdiction could not be sustained. At most, it could be said that the magistrate, in directing the police to institute the case, had done so in a manner that was irregular. Nevertheless, the Court found absolutely no basis for concluding that such irregularity had caused any miscarriage of justice. The Court further held that the conviction and the sentence imposed by the High Court could not be set aside or varied merely because of the said procedural irregularity. In view of these findings, the Court concluded that there was no ground on which to interfere with the High Court’s order, and therefore the appeal was dismissed. The final direction was that the appeal stand dismissed.