# JAMUNA SINGH AND OTHERS v. BHADAI SAH

- **Citation:** [1964] 5 S.C.R. 37
- **Court:** Supreme Court of India
- **Decided:** 1963-10-04
- **Case number:** Criminal Appeal No. 56 of 1960
- **Bench:** B.P. Sinha, M. Hidayatullah, K.C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jamuna-singh-and-others-v-bhadai-sah-2983
- **Pages:** 9

## Headnote

Criminal Trial-Cognizance of an offence on a complain!,
when taken-Magistrate proceeding um/er prol'isions of Chapter
XVI of the Code, if amount to taking cognizance-Appeal against
acquittal by complainant under s. 417 (3)-Propriety of-Code of
Criminal Procedure, 1898 (V of 1898), ss. 190(1), 200-204 and 417(3).
The respondent lodged a complaint before the Sub-Divisional
Magistrate alleging that the appellants assaulted him with lathis
and forcibly took away currency notes from his pocket. After
completing the examination under s. 200 of the Code of Criminal
Procedure, the Magistrate made the following order "Examined
the complaint on s.a. The offence is cognizable one. To S.l.
Baikunthpur for instituting a case and report by 12.12.56." Ultimately, a charge-sheet was submitted by the police and the appellants
were committed to the court of sessions but the trial ended in acquittal.
On appeal by the respondent under s. 417(3) of the Code
of Criminal Procedure, the order of acquittal was set aside by the
High Court and the appellants were convicted under s. 395 of the
Penal Code and sentenced to two years rigorous i1nprisonment.
It was mainly urged on behalf of the appellants that in this case
no appeal lay to the High Court under s. 417(3) as the case against
them was not instituted on any complaint but on a police report.
Held: (i) When on a petition of complaint being filed before
him a Magistrate applies his mind for proceeding under the various
provisions of Chapter XVI of the Code of Criminal Procedure,
he must be held to have taken cognizance of the offences mentioned
in the complaint. When however he applies his mind not for such
purpose but for purposes of ordering investigation under s. 156( 3)
or· issues a search warrant for the purpose of investigation, he
cannot be said to have taken cognizance of any offence.
R.R. Chari v. State of U.P., [1951] S.C.R. 312 and Copa! Das
v. State of Assam, A.LR. 1961 S.C. 986, applied.
In the present case, as it is clear from the very fact that the
Magistrate took action under s. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned
in the complaint, it was open to him to order investigation only
under s. 202 and not under s. 156(3) of the Code of Criminal Procedure. Therefore, it must be held that though the Magistrate
used the words "for instituting a case" in his order he was actually
taking action under s. 202 of the Code, that being the only section
under which he was in law entitled to act.
1963
October 4;
1963
Ja111una Singh
and others
v.
Bhadai Sah
Das Gupta J.
38
SUPREME COURT REPORTS
[1964]
/
Cognizance having already been taken by the Magistrate {
-
before he made the order there was no scope of cognizance being
taken afresh of the same offence after the police officers' report
was received. Thus the case was instituted on complaint and not
on the police report submitted later. The contention therefore
that the appeal did not lie under s. 417(3) must be rejected.
(ii) The order of the Magistrate asking the police to institute
a case and to send a report should properly and reasonably be read
as one made under s. 202 of the Code of Criminal Procedure. So
the contention that he acted without: jurisdiction cannot be accepted.
At most it might be said that in so far as he asked the police to
institute a case he acted irregularly, but there is no reason to
think that it has resulted in any failure of justice.
CRIMINAL APPELLATE
JURISDICTION: Criminal
Appeal No. 56 of 1960.
Appeal by special leave from the judgment and
order dated November 27, 1959 of the Patna High
Court in Criminal Appeal No. 63 of 1957.
D. P. Singh, for the appellants.
K. K. Sinha, for the respondent.
October 4, 1963.
The Judgment of the Court was
delivered by
DAS GUPTA J.-These seven appellants were tried
by the Assistant Sessions Judge, Saran, on charges
under s. 395 of the Indian Penal Code and also under
s. 323 of the J ndian Penal Code but were acquitted by
him of

## Text

·<
5 S.C.R.
SUPREME COURT REPORTS
37
JAMUNA SINGH AND OTHERS
v.
BHADAI SAH
(B.P. SINHA, C.J., M. HIDAYATULLAH AND K.C. DAS
GUPTA JJ.)
Criminal Trial-Cognizance of an offence on a complain!,
when taken-Magistrate proceeding um/er prol'isions of Chapter
XVI of the Code, if amount to taking cognizance-Appeal against
acquittal by complainant under s. 417 (3)-Propriety of-Code of
Criminal Procedure, 1898 (V of 1898), ss. 190(1), 200-204 and 417(3).
The respondent lodged a complaint before the Sub-Divisional
Magistrate alleging that the appellants assaulted him with lathis
and forcibly took away currency notes from his pocket. After
completing the examination under s. 200 of the Code of Criminal
Procedure, the Magistrate made the following order "Examined
the complaint on s.a. The offence is cognizable one. To S.l.
Baikunthpur for instituting a case and report by 12.12.56." Ultimately, a charge-sheet was submitted by the police and the appellants
were committed to the court of sessions but the trial ended in acquittal.
On appeal by the respondent under s. 417(3) of the Code
of Criminal Procedure, the order of acquittal was set aside by the
High Court and the appellants were convicted under s. 395 of the
Penal Code and sentenced to two years rigorous i1nprisonment.
It was mainly urged on behalf of the appellants that in this case
no appeal lay to the High Court under s. 417(3) as the case against
them was not instituted on any complaint but on a police report.
Held: (i) When on a petition of complaint being filed before
him a Magistrate applies his mind for proceeding under the various
provisions of Chapter XVI of the Code of Criminal Procedure,
he must be held to have taken cognizance of the offences mentioned
in the complaint. When however he applies his mind not for such
purpose but for purposes of ordering investigation under s. 156( 3)
or· issues a search warrant for the purpose of investigation, he
cannot be said to have taken cognizance of any offence.
R.R. Chari v. State of U.P., [1951] S.C.R. 312 and Copa! Das
v. State of Assam, A.LR. 1961 S.C. 986, applied.
In the present case, as it is clear from the very fact that the
Magistrate took action under s. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned
in the complaint, it was open to him to order investigation only
under s. 202 and not under s. 156(3) of the Code of Criminal Procedure. Therefore, it must be held that though the Magistrate
used the words "for instituting a case" in his order he was actually
taking action under s. 202 of the Code, that being the only section
under which he was in law entitled to act.
1963
October 4;
1963
Ja111una Singh
and others
v.
Bhadai Sah
Das Gupta J.
38
SUPREME COURT REPORTS
[1964]
/
Cognizance having already been taken by the Magistrate {
-
before he made the order there was no scope of cognizance being
taken afresh of the same offence after the police officers' report
was received. Thus the case was instituted on complaint and not
on the police report submitted later. The contention therefore
that the appeal did not lie under s. 417(3) must be rejected.
(ii) The order of the Magistrate asking the police to institute
a case and to send a report should properly and reasonably be read
as one made under s. 202 of the Code of Criminal Procedure. So
the contention that he acted without: jurisdiction cannot be accepted.
At most it might be said that in so far as he asked the police to
institute a case he acted irregularly, but there is no reason to
think that it has resulted in any failure of justice.
CRIMINAL APPELLATE
JURISDICTION: Criminal
Appeal No. 56 of 1960.
Appeal by special leave from the judgment and
order dated November 27, 1959 of the Patna High
Court in Criminal Appeal No. 63 of 1957.
D. P. Singh, for the appellants.
K. K. Sinha, for the respondent.
October 4, 1963.
The Judgment of the Court was
delivered by
DAS GUPTA J.-These seven appellants were tried
by the Assistant Sessions Judge, Saran, on charges
under s. 395 of the Indian Penal Code and also under
s. 323 of the J ndian Penal Code but were acquitted by
him of both the charges.
The prosecution case was that on November 15,
1956 when Bhadai Sah, a businessman belonging
-
to Teotith, within police station, Baikunthpur, was
passing along the village road on his way to purchase
patua, the seven appellants armed with lathis surrounded
~
him and demanded that he should hand over the
monies he had with him.
Bhadai had Rs. 250 with
him but he refu"sed to part with them.
Kesho Singh
one of the appellants tried to take away forcibly the
currency notes from his pocket but Bhadai caught
hold of his arm and raised an alarm. On this all
the appellants assaulted him with their lathis and as
he fell injured Kesho Singh took away the money
from his pocket.
Bhadai thereupon filed a petition
of complaint in the Court of the Sub-Divisional
Magistrate, Gopalgunj, on November 22, 1956. The
5 S.C.R.
SUPREME COURT REPORTS
39
Magistrate after examining him on solemn affirma1963
tion made an order asking the Sub-Inspector of Police,
-- .
Baikunthpur, to institute a case and report by December Jamuna Smgh
12, 1956. Ultimately, a charge-sheet was submitted
""" athers
by the Police and the accused persons were committed
v.
to the Court of Sessions. The Sessions trial ended,
Bhadai Sah
as already stated, in the acquittal of all the appellants.
Against the order of acquittal, Bhadai Sah filed
an appeal under s. 417(3) of the Code of Criminal
Procedure in the High Court of Judicature at Patna.
On the following day two learned Judges of the High
Court made the order: "The appeal will be heard".
~ The appeal then came up for hearing before two
other learned Judges of the Court who being of opinion
that the learned Sessions Judge had rejected the prosecution evidence "on unsound standards without
any real effort to assess the credibility of the evidence"
and that the prosecution case was fully established
by the evidence, set aside the order of acquittal and
convicted the appellants under s. 395 of the Indian
Penal Code and sentenced them to two years' rigorous
imprisonment.
Against this order of the High Court the present
appeal has been filed by special leave of this Court.
The main contention urged in support of the
appeal is that in this case no appeal lay to the High
Court against an order of acquittal under s. 417(3)
of the Code of Criminal Procedure. This provision
in s. 417 was introduced in the Code by the Amending
·Act XXVl of 1955, giving a complainant a right of
appeal against acquittal where a case is instituted
upon a complaint.
Before this new legislation, only
the State Government had the right to appeal against
an order of acquittal. The result of the new provision
in sub-s. 3 is that if an order of acquittal is passed by
any court other than a High Court in a case instituted
upon a complaint, the High Court on an application
made to it by the complainant in this behalf may
grant special leave to appeal from the order of acquittal
and on such leave being granted the complainant
may present such an appeal to the High Court. It
Das Uupta .I.
40
SUPREME COURT REPORTS
[1964]
1963
is to be noticed that this right is limited only to cases
instituted upon a complaint. On behalf of the appelJamuna Singh ]ants it is argued that the case against them was not
and others
instituted on any complaint but was instituted on
v.
a police report.
Bhadai Sah
The Code does not contain any definition of
Das Gupta J.
the words ''institution of a case". It is clear however
and indeed not disputed, that a case can be said to be
instituted in a court only when the court takes
cognizance of the offence alleged therein.
Section
l 90(l) of the Code of Criminal Procedure contains
the provision for cqgnizance of offences by Magistrates.
It provides for three ways in which such cognizance
can be taken.
The first is on receiving a complaint
of facts which constitute such offence; the second
is on a report in writing of such facts-that is, facts
constituting the offence-made by any police officer;
the third is upon information received from any person
other than a police officer or upon the Magistrate's
own knowledge or suspicion that such offence has
been committed. Section 193 provides for cognizance
of offences being taken by courts of sessions on
commitment to it by a Magistrate duly empowered
, in that behalf. Section 194 provides for cognizance
being ta ken by the High Court of offences upon a
commitment made to it in the manner provided in
the Code.
An examination of these provisions makes it
~
clear that when a Magistrate takes cognizance of
an offence upon receiving a complaint of facts which
.
constitute such offence, a case is instituted in
the
~
Magistrate's Court and such a case is one instituted
on a complaint. Again, when a Magistrate takes
cogni1:ance of any offence upon a report in .writing of
such facts made by any police officer it is a case instituted in the Magistrate's court on a police report.
To decide whether the case in which the appellants
were first acquitted and thereafter convicted was
instituted on a complaint or not, it is necessary to
find out whether the Sub-Divisional Magistrate, Gopalgunj, in whose Court the case was instituted, took
,
5 S.C.R.
SUPREME COURT REPORTS
41
cognizance of the offences in question on the complaint
of Bhadai Sah filed in his Court on November 22,
1956 or on the report of the Sub-Inspector of Police
dated the 13th December, 1956.
It is well settled
now that when on a. petition of complaint being filed
before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI
of the Code of Criminal Procedure, he must be held
to have taken cognizance of the offences mentioned
in the complaint.
When however he applies his
mind not for such purpose but for purposes of ordering investigation under s. I 56(3) or issues a search
warrant for
the
purpose of
investigation
he
cannot be said to have taken cognizance of any offence.
It was so held by this Court in
R.R. Chari v. State
of U.P.''l and again in Gopct! Das v. State of Assam (2 J.
In the case before us the Magistrate after
receipt of Bhadai Sah's complaint proceeded to
examine him under s. 200 of the Code of Criminal
Procedure. Thal section itself states that the Magistrate taking cognizance of an offence on a complaint
shall at once examine the complainant and the witnesses
present, if any, upon oath. This examination by the
Magistrate under s. 200 of the Code of Criminal
Procedure puts it beyond doubt that the Magistrate
did take cognizance of the offences mentioned in the
complaint. After completing such examination and
recording the substance of it to writing as required
by s. 200 the Magistrate could have issued process
at once under s. 204 of the Code of Criminal Procedure or could have dismissed the complaint under
s. 203 of the Code of Criminal Procedure.
It was
also open to him, before taking either of these courses,
to take action under s. 202 of the Code of Criminal
Procedure. That section empowers the Magistrate
to "postpone the issue of process for compelling the
atten~ance of persons complained against, and either
enqull'e into the case himself or if he is a Magistrate
other than a Magistrate of the third class, direct
an _e_ng_u~y or_ investigation to be made by any Magis-
(1) [1951] S.C.R. 312.
(2) A.LR (1961) S.C. 986.
1963
Jamuna Singh
and others
v.
Bhadai Sah
Das Gupta J.
1963
Jamuna Singh
and Olhers
v.
Bhadai Sah
Das Gupta J.
42
SUPREME COURT REPORTS
[1964]
trate subordinate to him, or by a police officer, or
by such other person as he thinks fit, for the purpose
of ascertaining the truth or falsehood of the com plaint."
If and when such investigation or inquiry is ordered
the result of the investigation or inquiry has to be
taken into consideration before the Magistrate takes
any action under s. 203 of the Code of Criminal
Procedure.
'
We find that in the case before us the Magistrate
after completing the examination under s. 200 of
the Code of Criminal Procedure and recording the
substance of it made the order in these words:-
"Examined the complaint on s.a. The offence
is cognizable one. To S.l. Baikunthpur for instituting a case and report by 12.12.56."
If the learned Magistrate had used the words
"for investigation" instead of the words "for instituting
a case" the order would clearly be under s. 202 of
the Code of Criminal Procedure.
We do not think
that the fact that he used the words "for instituting
a case" makes any difference. It has to be noticed
that the Magistrate was not bound to take cognizance
of the offences on receipt of the complaint.
He
could have, without taking cognizance, directed an
investigation of the case by the police under s. 156(3)
of the Code of Criminal Procedure. Once however
he took cognizance he could order investigation
by the police only under s. 202 of the Code of Criminal
Procedure and not under s. 156(3) of the Code of
Criminal Procedure. As it is clear here from the
very fact that he took action under s. 200 of the Code
. of Criminal Procedure, that he had taken cognizance
of the offences mentioned in the complaint, it was
open to him to order investigation only under s. 202
of the Code of Criminal Procedure and not under
s. 156(3) of the Code. It would be proper in these
circumstances to hold that though the Magistrate
used the words "for instituting a case" in this order
of November 22, 1956 he was actually taking action
under s. 202 of the Code of Criminal Procedure,
,... (-
(_
•
-)
,
5 S.C.R.
~UPREME COURT REPORTS
43
that being the only section under which he was in
law entitled to act.
The fact that the Sub-Inspector of Police treated
the copy of the petition of complaint as a first information report and submitted "charge-sheet" against
the accused persons cannot make any difference.
In the view we have taken of the order passed bv
the Magistrate on November 22, 1956, the report
made by the police officer though purporting to
be a report under s. 173 of the Code of Criminal
Procedure should be treated in law to be a report
only under s. 202 of the Code of Criminal Procedure.
Relying on the provisions in 3. 190 of the Code
that cognizance could be taken by the Magistrate
on the report of the police oificer the learned counsel
for the appellants argued that when the Magistrate
made the order on November 22, 1956 his intention
was that he wo11lcl take cognizance only after receipt
of the report of the police officer and that cognizance
should be held to have been taken only after that
report was actually received in the shape of a chargesheet under s. 173 of the Code, after December
13, 1956. The insuperable difficulty in the way
of this argument, however, is the fact that the Magistrate had already examined the complainant under
s. 200 of the Code of Criminal Procedure. That
examination proceeded on the basis that he had
taken cognizance and in the face of this action it
is not possible to say that cognizance had not already
been taken when he made the order "to sub-Inspector,
Baikunthpur, for instituting a case and report by
12.12.56."
Cognizance l1aving already been taken by the
Magistrate before he made the order there was no
scope of cognizance being taken afresh of the same
offence after the police officer's report was received.
There is thus no
escape from
the conclusion
that the case was instituted on Bhadai Sah's complaint
on November 22, 1956, and not on the police report
submitt~d later by the Police Sub-Inspector, Baikun1963
.Tannrna Singh
and others
v.
Bhadai Sah
Das Gupta J.
1963
.Jamuna Singh
and others
v.
Bhadai Sah
Das Gupta J.
44
SUPREME COURT REPORTS
[1964]
thpur. The contention that
the appeal did not
lie under s. 417(3) of the Code of Criminal Procedure
must therefore be rejected.
The next contention raised on behalf of the appellants is that the High Court was not justified in
interfering with the order of acquittal passed by the
learned Assistant Sessions Judge.
The reasoning on
which the learned Assistant Sessions Judge rejected
the evidence of the prosecution witnesses and the
. reasons for which the learned Judges of the
High
Court were of opinion that there was no real effort
by the learned Sessions Judge to assess the credibility of the evidence have been placed before
us. lt is quite clear that the High Court examined
the matter fully and carefully and on a detailed
consideration of the evidence came to the conclusion
that that assessment of the evidence had resulted in a
serious failure of justice. The principles laid down
by this Court in a series of cases as regards interference with orders of acquitli:1l have been correctly
followed by the High Court. The!'e is nothing,
therefore, that would justify us in reassessing the
evidence for ourselves.
As relevant parts of the evidence were however placed before us, we think it
proper to state that on a consideration of such evidence we are satisfied that the decision of the High
Court is correct.
As a last resort the learned counsel for the appellants argued that the Magistrate had acted without
jurisdiction in asking the police to institute a case
and so the proceedings subsequent to that order
were all void.
As we have already pointed out,
the order of the Magistrate asking the police to institute a case and to send a report should properly
and reasonably be read as one made under s. 202
of the Code of Criminal Procedure. So, the argument that the learned Magistrate acted without jurisdiction cannot be accepted. At most it might be
said that in so far as the learned Magistrate asked
the police to institute a
case he acted irregularly.
There is absolutely no reason, however, to think
(-
--
-
5 S.C.R.
SUPREME COURT REPORTS
45
that that irregularity has resulted in any failure of
justice. The order of conviction and sentence passed
by the High Court cannot be reversed or altered
on account of that irregularity.
In the resLtlt, the appeal is dismissed.
1963
Ja111una Sing/z
and others
v.
Blwdai Salz
Appeal dismissed.
Das Gupta J.
PRAlHTRA KUMAR BANNIRJI
\'.
THE STATE OF WEST BENGAL
(B.P.
SINHA, C.J., P.B.
GAJENDRAGADKAR,
K.N.
WANCHOO, M. HIDAYATULLAH
AND J.C. SHAH JJ.)
Constitution u_f India, Art. 14--Calcutta High Courf (Original
Side) Bar-C/assificatio11 hased 011 pleading and acting-Separate
accomodation to the different classes-If amounts to denial of equality
before the law.
The High Court of Calcutta had separately allotted rooms
in the Court premises to the Barristers for use and occupation
for their Bar Library Club, lo Advocates other than Barristers
for their Bar Association and to the Attorneys for their Incorpora·
ted Law Society. The petitioners, who were Advocates of the
Calcutta High Court and generally practised
on
its Original
Side and were called to the English Bar, had not read for a period
of 12 months in the Chambers of a practising Barrister in England
or in Calcutta as required by the rules of the Original ~ide but
applied for becoming members of the Bar Library Club and their
applications were refused. Their representation to the Chief
Justice was also refused. On their application under Art. 32
of the Constitution this Court issued a Rule against the State of
West Bengal and the Chief Justice. The Joint Secretaries of the
Bar Library Club were later on added as parties and the Bar Association appeared as intervener. The result of this intervention
of the Bar Association was that the petition as it originally stood
was broadend into a
claim to abolish lhe exclusiveness of the
Bar Library Club in favour of all other Advocates as was indicated
in the representation made by the Association to the Chief Justice
of Calcutta High Court which lo the following effect:-
1963
October 7