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TMI Blog1967 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... mation Report dated July 29, 1959, lodged by one Raja Ram Sah. The police investigated the case and during the investigation the appellant set up an alibi. The police accepted the alibi and did not include his name as an accused in the final report under s. 173 of the Code of Criminal Procedure. His name was, however, mentioned in column No. 2 of the Charge Sheet under the heading not sent up . On April 5, 1961, the Sub-divisional Magistrate passed the following order C. S. No. 12 dated 234-3-61 u/s 149/302/2011. P. C. received against the accused noted in col. 3 and 4 of C. S. Cog. taken u/s 149/302/201 1. P. C. and case transferred to Sri L. P. Singh Magt........ class for enquiry under Chapter XVIII Cr. P. C. Accused not sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be a member of the mob of these accused at the time of occurrence. So issue non-bailable W/A against Raghubans Dubey according to address given by P.W. today as the allegation against Raghubans be very serious one. Send the process peon returnable by 3-6-1961. Other accused will reattend. The appellant challenged this order before the Sessions Judge. it was urged before him that the Magistrate had no jurisdiction to summon the appellant because the Sub- divisional Magistrate had already dismissed a protest petition on merits. The Sessions Judge rejected the argument and held that it was open to the Magistrate to summon any person against whom he found sufficient evidence in the case. The appellant then filed a criminal revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Raghubans Dubey does not amount to taking cognizance of an offence. On the second point the High Court held that the Magistrate did not summon the appellant only on those grounds which were before the Sub-divisional Magistrate as the materials before the two Magistrates were not identical. The Sub-divisional Magistrate had acted on the Police report alone but the Magistrate took into consideration the evidence of the two prosecution witnesses examined in court as well. The learned counsel for the appellant, Mr. Danial Latifi, raises two points before us; first that the discharge of the appellant by the order dated April 5, 1961, by the Sub- divisional Magistrate was final, and secondly, that the proper procedure to be observed on the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has beer. committed. 207. In every inquiry before a Magistrate where the case is triable exclusively by a court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall- (a)in any proceeding instituted on a police report, follow the procedure specified in s. 207A; and (b)in any other proceeding, follow the procedure specified in the other provisions of this Chapter. It seems to us that s. 207(a) refers back to s. 190(1)(b); in other words, the police repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'complaint' in this connection has been defined by the Code of Criminal Procedure and it 'means the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.' [see s. 4(1)(h]. It, therefore, follows that s. 252, Criminal Procedure Code, can only apply to those cases which are instituted otherwise than on a police report, that is to say, upon complaints which are not reports of a police officer or upon information received from persons other than a police officer. Similarly S. 207(b) Can Only apply if the case was instituted, otherwise than on a po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey, the learned counsel for the respondent brought-to our notice some decisions which have taken the same view. The Calcutta High Court in Saifar v. State of West Bengal (A.I.R. 1962 Cal. 133), following the Full Bench decision of the Judicial Commissioners, Sind, in Mehrab v. Emperor (A.I.R. 1924 Sind 71), held that when a Magistrate takes 'Cognizance under s. 190(1)b) on a police report he takes cognizance of the offence and not merely of the particular persons named in the charge sheet, and therefore, the Magistrate is entitled ,to summon additional accused against whom he considers that there was good evidence, after perusal of the statements recorded by the police under s. 161 and the other documents referred to in s. 173 even wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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