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TMI Blog1963 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... armed with lathis surrounded him and demanded that he should hand over the monies he had with him. Bhadai had ₹ 250 with him but he refused 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 Magistrate after examining him on solemn affirmation made an order asking the Sub-Inspector of Police, Baikunthpur, to institute a case and report by December 12, 1956. Ul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment 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 complaint 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 is to be noticed that this right is limited only to cases instituted upon a complaint. On behalf of the appellants it is argued that the case against them was not instituted on any complaint but was instituted on a police report. 6. The Code does not contain any definition of the words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police report. 8. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 first, for the purpose of ascertaining the truth or falsehood of the complaint. If and when such investigation of 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. 10. 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 offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 by 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. 13. Relying on the provisions in s. 190 of the Code that cognizance could be taken by the Magistrate on the report of the police officer the learned counsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take cognizance onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence 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. It 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 acquittal have been correctly followed by the High Court. There is nothing, therefore, that would justify us in reassessing the evidence for ourselves. As relevant parts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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