Amaresh Kumar Singh, J.
1. Heard the learned counsel for the petitioner and the public Prosecutor and perased the order passed by the learned Magistrate km 22nd April, 1991 and also the copies of the First Information Report and the Final report submitted by the Police under Section 173 of the Criminal Procedure Code.
2. The learned counsel for the petitioner has submitted that while perusing the final report submitted by the Police under Section 173 of the Criminal Procedure Code for the purpose of finding out whether any offence was committed or not and if committed who committed it, the learned Munsif & Judicial Magistrate was duty bound to take into consideration the entire material available on the Police file, but the learned Magistrate in place of applying his mind to entire material confined his attention to the statement of two witnesses namely Lasa Ram and Pura Ram and came to the conclusion that a prima facie case for proceeding against the petitioner was made out and this illegality amounts the abuse of the process of the Court because the learned Magistrate has not taken into consideration other material consisting of the reasons given by the Investigating Officer in the final report and the statements of other witnesses recorded under Section 151 of the Criminal Procedure Code.
3. The learned Public Prosecutor has supported the order of the Magistrate.
4. In Order to appreciate the submissions made by the learned counsel for the petitioner it would be useful to take into consideration the scheme of the Criminal Procedure Code. The Criminal Procedure Code makes a distinction between 'allegations' simplicitor' and 'fact or facts'. This distinction is indicated by the fact that, complaints has been defined in Section 2(d) as meaning, any allegation made orally or writing Magistrate taking view to that some person whether known or unknown has committed an offence but does not include the Police report.' This definition of complaint does not insist on presence of 'facts'. All that is needed for the purpose of a complaint is 'allegation'. On the other hand in Section 190 Sub-section (1), Clause (a), (b) and (c) in place, of the expression 'allegation', the legislature has used the word 'facts' and since the use of the word expression 'facts' appears to be deliberate, it is proper to infer that the legislature intends to make a distinction between allegation simplicitor and a fact. The. expression 'fact' has not been defined in Criminal Procedure Code. It has been defined in Evidence Act in Section 3. According to the definition given in Section 3 the facts the expression 'fact' means and includes (1) anything, state of thing, or relation of things, capable of being perceived by the senses, (ii) any mental condition of which any person is conscious. The definition of 'fact' as given in Section 3 of Evidence Act shows that 'fact' is a material phenomenon, which is or was in existence and is or was capable of being perceived. This definition necessarily leads to the conclusion that something which is not a real material fact, does not amount, to 'fact' for purpose of Evidence Act because, it does not exist and it cannot be perceived. A false accquasation or a false averment abovit a fact, therefore, does not attract the definition of 'fact' for the simple reason that something which is false does not exist and cannot be perceived with sense organs. In view of the fact that Section 190 Sub-section (1) Clause (a), (b) and (c) require 'facts' constituting an offence, for the purpose of taking cognizance of an offence by a Magistrate, it is proper to infer that in order an allegation or set of allegations may be made the basis for taking cognizance such allegations must be shown to be true so that they may called 'facts'. In other words that Magistrate who is called upon to apply his judicial mind for the purpose of taking cognizance under Section 190 of the Criminal Procedure Code has to find out whether the allegations do or do not amount to 'facts' for the purpose of proceeding under Section 190 Sub-section (1) Clause (a), (b) and (c) and this necessarily requires him to consider the evidence which may be available to him by that time. Formation of opinion about the truth or otherwise of the allegations placed before him is thus an integral part of the judicial function which he is to perform when he is called upon to apply his judicial mind for exercising the powers under Section 190 of the Criminal Procedure Code. It is, therefore, incumbent on the Magistrate not only to peruse the allegations made before him but to further find out on the basis of material placed before him whether allegations do amount to 'fact' or not for the purpose of Section 190 of the Criminal Procedure Code and if the allegations do not amount to 'facts' he will not be entitled to use them for the purpose of taking cognizance under Section 190 of the Criminal Procedure Code. It is thus obvious that even at the stage of taking cognizance under Section 190 of the Criminal Procedure Code judicial application of the mind by the leained Magistrate is necessary and since he has to form a judicial opinion about the existance of 'facts contituting an offence' on the basis of material placed before him he has to arrive at some conclusion about the truth or otherwise of the allegations. What kind of conclusion can be drawn after application of judicial mind is not open to doubt. In view of definition given in Evidence Act. The expressions 'proved' 'disproved' and 'not proved' a thing is said to be proved when after taking into consideration the matter before it the Court believes that the thing exists or the Court thinks that a prudent man in the circumstances would come to the conclusion that the things exists. A thing is said to be 'disproved' when after applying mind to the entire matter the Court believes a thing to be non-existence or considers that a prudent man in the circumstances would hold that the thing does not exist. A thing is said to be 'not-proved' when it is neither proved nor disproved, outside these three categories it is not possible to conceive of a fourth categoiy in which a finding of fact may be placed. Therfore, the allegation may be either proved, disproved or not proved. Whenever any fact alleged by a party is found to be not proved, it is the rule as to burden of proof which is to be applied and by application of rule relating or burden of proof the final adjudication is made. If the burden is on the party alleging the fact and the burden is not discharged the case is decided against the party. Since the Magistrate has to form an opinion about the, existence of 'facts' constituting an offence', for the purpose of taking cognizance under Section 190 Sub-section (1) of the Criminal Procedure Code, the responsibility to form an opinion whether a certain allegation is proved or is disproved or is not proved cannot be avoided. If that responsibility is avoided then there would be no use of applying the judicial mind to the matter placed before the Magistrate. But it is equally true that at that time the Magistrate is not required to go into the nicities of the case nor is required to evaluate the material placed before him meticulously. All that he has to find out is whether there is ground for taking congnizance under Section 190 Sub-section (1) Clause (a), (b) and (c) of the Criminal Procedure Code. What are these grounds cannot be described in mathematical terms. It differs from case to case and probably the only guide in regard to this is the rule that while applying judicial mind it should be kept in mind that the complainant party has yet not fully exhausted the opportunity available to it for proving the allegations made against the accused and the accused party has also not exhausted all the opportunities available to it to defend himself or herself against the acqusation and, therefore, the probability that the so called lacunas may disappear when complete evidence taken and apparent trust worthiness of the evidence may be shattered to pieces after cross examination and hearing the defence version, should be kept in mind. If this is done no party would be prejudiced by the finding of the Court about any question of fact at the time of taking cognizance under Section 190 Sub-section (1) of the Criminal Procedure Code.
5. The learned counsel for the petitioner has in this case submitted that the learned Magistrate has not taken into consideration the reasons given by the Investigating Officer for not submitting a challan and he has also omitted to take into consideration the statements of other witnesses and the statement of the petitioner recorded by the Police Officer. I am afraid the submission made by the learned counsel for the petitioner will have to be accepted because even at the time of applying his mind for the purpose of taking cognizance under Section 190 Sub-section (1) of the Criminal Procedure Code the Magistrate is required to take into consideration all relevant and admissible evidence that may be available to him at that time. It may be pointed out that the opinion formed by the Investigating Officer is not relevant for the purpose of the Court. Similarly the evidence which is irrelevant and inadmissible cannot be said to form that material on the basis of which process can be issued against any accused, for the simple reason that such irrelevant or inadmissible material cannot be permitted to be used against the accused during the enquiry or trial. Subject to these two conditions the entire material which may be available on record deserves to be taken into judicial consideration. In the instant case this has not been done. The learned Magistrate has confined his attention to the statements of only two witnesses. He does not appear to have applied his mind to the statements of other witnesses and to the statements of the accused Smt. Chuni. Therefore, his order deserves to be quashed and the case deserves to be remanded for re-consideration. For reasons stated above this petition is allowed. The order passed by the Magistrate on 22nd April, 1991 by which Fe took cognizance under Section 3(1)(10) Scheduled Cast and Scheduled Tribes (Prevention of Atrocities) Act, 1989, arising out of First Information Report No. 54/90 dated 19th July, 1990 Police Station Sanderao, District Pali is hereby quashed and the learned Munsif & Judicial Magistrate Sumerpur is directed to re-consider the final report submitted by the Police and take into consideration the entire relevant and admissible evidence which may be available on record for the purpose of forming an opinion about taking cognizance under Section 190 Sub-section (1) of the Criminal Procedure Code and proceeding against the petitioner under Section 204 of the Criminal Procedure Code. It may be pointed out that at this stage the learned Magistrate is not required to consider the evidence meticulously and all that he has to consider is whether there is ground for taking congnizance and proceedings against any person. A copy of the order be sent to the Judicial Magistrate, Sumerpur, for necessary action. The stay granted by this Court on 6th June, 1991 is hereby vacated.