ORDER
1. This petition is directed against the Order made by the learned Sessions Judge.
[ENTITY], in [CASE NUMBER] on his file, on 24-10-1966. The learned Sessions Judge by his order has set aside the order of discharge made by the learned Munsiff-Magistrate, [ENTITY], in [CASE NUMBER]. It has also directed that the accused, the present revision petitioners should be arrested and a fresh enquiry be held in the manner prescribed by law under [SECTION] [ACT] He has further directed that the Magistrate should direct the police concerned to submit a charge sheet against the concerned accused persons.
2. The facts relevant for the purpose of this application are briefly as follows: One [ENTITY], a resident of [ENTITY] Town, lodged a complaint against the present revision petitioners namely [ENTITY] and [ENTITY], who were also the residents of [ENTITY] Town. The allegations in the said complaint were that the complainant and the accused were neighbouring cultivators of lands which were Separated by a road and situated in Khasaba Hobli of [ENTITY]. It was also alleged that since 7-9-1965 there were differences between them as regards the right to the use of water for cultivation by the accused.
He has further alleged that on 17-9-1986 his brother [ENTITY] went to his field at 4 a.m to attend to some agricultural operation at about 6-30 am, on the same day, one [ENTITY], a jutka driver, Informed the complainant that the said [ENTITY] had been beaten and buried, leaving his face exposed and covered with thorns and that he should go quickly to the spot. On arriving at the spot along with others, he found [ENTITY] in the posture described by [ENTITY] He further alleges that he complained to the police and that a police officer came to the spot and removed [ENTITY] to the hospital He also complained that no further action was taken by the police. That way the reason for his approaching the Court on 21-9 1965 the date on which the complaint petition was presented by Mm.
3. The learned Magistrate recorded the sworn statement of the complainant on 21-9-1965. It is relevant to set out the sworn statement as much of the argument addressed at the Bar centred round the question whether the Magistrate had taken cognizance of the complaint with a view to taking further action under the [ACT]. The statement is as follows:
"The contents of this petition are all true and correct On hearing the words of a Muslim boy I went with ladles in my family and found my brother buried under earth except for the head which had been covered by thorns. I removed thorns and portion of mud. People came there and advised me to inform police After police were informed my brother was taken to hospital. All the people there removed the mud. Police were examined my brother (sic)".
After recording the said statement, the Magistrate passed the following Order:
"Send the copy of this petition to [ENTITY] for investigation and report wider Section 168, Clause (8) [ACT] by 8/10." It is also relevant to observe that no summons were issued to the accused immediately thereafter. The police after investigation submitted a report on 27-11-1966 along with the case diary. On 7-12-1966, the learned Magistrate made a further Order as follows:
"7-12-66 case called. Complainant in per-son. Take the case on file under [SECTION] [ACT]" Notwithstanding the order made on 7-12-1966, the Magistrate proceeded to enquire into the complaint under [SECTION] [ACT], which relates to an enquiry into a proceeding instituted otherwise than on a police report. After enquiry, he made an order discharging the accused on 19-9-1966.
4. Against this order of discharge, the complainant preferred [CASE NUMBER] before the learned Sessions Judge at Chlckmagalur. The learned Sessions Judge without going into the merits of the Order in question, as disclosed by the evidence therein, confined himself to the question of law arising from the procedure followed by the learned Magistrate in making the enquiry under [SECTION] [ACT] On a detailed discussion of the matter he came to the conclusion that the Magistrate took cognizance of the matter only on 7-12-1965 on the police report, and as such he should have proceeded with the enquiry in accordance with the provisions of [SECTION] [ACT], after directing the police to submit a charge-sheet under [SECTION] [ACT] in the result, he set aside the order of the learned Magistrate and remanded the matter back to him with directions which have been referred to earlier Against this Order, the present petition has been presented before this Court by the accused named in the original complaint.
6. The contentions of Sri [ENTITY], the learned Counsel for the petitioners are: (1) that the learned Magistrate took cognizance of the complaint on 21-9-1966 when the complainant was examined on oath, and not on 7-12-1966 as found by the learned Sessions Judge; (2) that the consequential order made on 21-9-1865 to the effect that the petition be sent to the Circle Inspector for investigation and report under [SECTION] [ACT] was in effect a direction to investigate, issued by virtue of the power conferred by [SECTION] [ACT] In any event reference to [SECTION] would not make any difference, and does not affect the fact that cognizance of the complaint was taken only under [SECTION], [ACT] in the alternative if this Court were to set aside the order in revision made by the learned Sessions Judge, the Order of discharge passed by the learned Magistrate should be allowed to it and. It is not a case in which this Court should exercise its powers of revision under [SECTION]. [ACT]
6. In elaboration of his contention that the learned Magistrate took cognizance of the case actually on 21-6-1966 when the complainant's sworn statement was recorded by him. the learned Counsel for the petitioners relies on a case , Jamuna Singh v. [ENTITY]. The Supreme Court has observed in the said case as follows:
"In the case before us the Magistrate after receipt of [ENTITY]'s complaint proceeded to examine him under [SECTION] of the [ACT]. That 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 [SECTION] of the [ACT] 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 [SECTION] the Magistrate could have issued process at once under [SECTION] of the [ACT] or could have dismissed the complaint under [SECTION] of the [ACT]. It was also on to him, before taking either of these courses, to take action under [SECTION] of the [ACT]. That section empowers the Magistrate to "postpone the issue of process for compelling the attendance of person complained against, and either enquire into the case himself or If he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate 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 complaint."
In the same judgment it is further observed as follows:
"We find that in the case before us the Magistrate after completing the examination under [SECTION] of the [ACT] and recording the substance of it made the order in these words:
Examined the complaint on s.a. The offence is cognizable one. To [ENTITY] for inslituting 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 [SECTION] of the [ACT]. 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 lake 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 [SECTION] of the [ACT] Once however he look cognizance he could order investigation by the police only under [SECTION] of the [ACT] and not under [SECTION] of the [ACT]. As It Is clear here from the very fact that be took action under [SECTION] of the [ACT], that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under [SECTION] of the [ACT] and not under [SECTION] 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 [SECTION] of the [ACT], that being the only section under which he was, in law entitled to act"
It is clear from the above observations of the Supreme Court that once a complainant is examined under [SECTION] [ACT] if would amount to taking cognizance of the offence mentioned in the complaint. It is further made clear that once such cognizance is taken, if the Magistrate desires to postpone the issue of process for compelling the attendance of persons complained against he could act only under [SECTION] [ACT]
7. If the facts of the present case are examined, it will be seen that there is no escape from the conclusion that the Magistrate took cognizance on 21-9-1965, the date on which the complainant's sworn statement was recorded.
7A. It was contended on behalf of the State and the complainant, who is also heard in the matter, that the only effective order which gives an indication as to the mind of the Magistrate was the one made directing the complaint to be forwarded to the Police for investigation under [SECTION]. It was contended that in view of this direction for investigation, the Magistrate had really not intended to proceed under [SECTION] [ACT] This argument, according to the complainant, derives further support from the second order passed on 7-12-1965 taking the case on file under [SECTION] [ACT] after the perusal of the police report submitted in compliance with the direction issued on 21-9-1965 by the learned Magistrate in view of the conclusion arrived al earlier that the learned Magistrate look cognizance on 21-9 1965 itself, there cannot be a second order of taking cognizance in the matter. In , it is stated thus:
"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 notice officer's report was received."
Hence the contention of the respondent in this regard cannot be accepted
8. Sri [ENTITY], the learned Assistant State Public Prosecutor, tried to distinguish this case on the ground that the facts therein were different inasmuch as while making a direction to investigate, [SECTION] was not mentioned by the learned Magistrate in the said case. It makes no difference whether the provision of law is mentioned at all or rightly or wrongly mentioned All the same, once a Magistrate takes cognizance in the matter be could only proceed under [SECTION] [ACT], if he thinks of postponing the issue of process to the person complained against. This is also clear from the observations of the Supreme Court extracted earlier This Court, in two cases reported in [PRECEDENT]. [PRECEDENT] and [PRECEDENT]. [PRECEDENT] following the decision of the Supreme Court in . affirmed the principle enunciated above.
8A. If the Magistrate had taken cognizance on 21-9-1965. he had no alternative but to proceed to ennui re into the matter under [SECTION] [ACT] which prescribes the procedure for an enquiry in a proceeding instituted otherwise than on a police report. Hence, there is no question of Magistrate being required to follow the procedure prescribed under [SECTION], [ACT] as directed by the learned Sessions Judge in his Order
9. In the light of the aforesaid discussion. I am of the opinion that the Order of the learned Sessions Judge made in [CASE NUMBER] requires to be set aside I order accordingly.
10. Sri [ENTITY], the learned Counsel appearing for the complainant, strenuousty contended that the learned Magistrate has exceeded the limits of the judicial discretion vested in him. in the matter of appreciating the evidence under [SECTION] [ACT] He contended that the learned Magistrate had taken upon himself the functions of a trial Judge and appreciated the evidence as though, there was no other view possible on the evidence adduced in this case He relied on a case re-ported in [PRECEDENT]. in support of his proposition that the learned Magistrate's order does not satisfy the requirements of the tests for discharging the accused under [SECTION]. [ACT] There appears to be some force in the contention of Sri [ENTITY] Sri [ENTITY], the learned Counsel for the petitioners receiving on a decision reported in [PRECEDENT]. submitted that having regard to the facts and circumstances of the case and the lime that has elapsed since the lodging of the complaint and invited this Court to look into the Order as a whole in order to see whether a case for interference under [SECTION] [ACT] had been made out He further contend ed that even on the facts disclosed and assuming them to have been proved, it could never fell under [SECTION] [ACT] He also submitted that in any event it would fall under sections relating to some of the minor offences for assault and hurt which are triable by the Magistrate himself. On this assumption, he proceeded to argue that the Magistrate was entitled to appreciate the evidence as he had done by virtue of the provisions of [SECTION] [ACT] which provision would be attracted to the case in case the Magistrate had thought of proceeding to frame charges which are triable by himself by following the procedure prescribed under [SECTION] [ACT], which prescribed for enquiry in a case instituted otherwise than on a police report.
11. In view of the above submissions, the learned counsel at the Bar were requested to go through the entire evidence on record, and also the Order of the learned Magistrate On a careful perusal of the Order and the evidence let in, it is not possible to come to the conclusion that an offence under [SECTION] [ACT] had been made out. The evidence of the Doctor and the Deputy Superintendent of Police, who have been examined as P Ws 7 and 8 respectively, and who are the only disinterested witnesses in the case- makes it abundantly clear that the victim had not suffered any injuries and that he was lying in a trench covered with earth to a thickness of Section to 6 inches and that his face, hands and elbows were completely exposed In these circumstances, the examination of the evidence by the learned Magistrate cannot be said to have exceeded the jurisdiction vested in him under [SECTION] [ACT] I am of the opinion that a prima facie case for an offence under [SECTION] [ACT] is not made out on the facts alleged and the evidence let in, even after an examination of the same in the light of the provisions of [SECTION] [ACT] It is also apparent from the order that the learned Magistrate has also examined the entire matter from the point of view of finding out whether any offence which would be triable by himself had been made out Hence, the discussion of the evidence in the Order is clearly referable to his intention to examine the evidence in exercise of the powers vested in him under [SECTION]. [ACT] [SECTION]. [ACT] prescribes a test as to the circumstances under which an accused could be discharged It on joins that the accused would be entitled to a discharge, if on an examination of the evidence and statement of the accused no case had been made out which if unrebutted, would warrant his conviction This test is wide enough to vest a discretion in the Magistrate to appreciate the evidence as has been done in the present case
12. No other reason was brought to my notice which impels me in any manner to Interfere with the order of discharge passed by the learned Magistrate
13. In the result, this revision petition is allowed and the order of the learned Sessions Judge in [CASE NUMBER] is set aside. The order of discharge passed by the learned Magistrate is restored.
14. Petition allowed.