Judgment:
P.K. Sarin, J.
1. This criminal revision application is directed against the judgment and order dated 18.3.1989 passed by Sessions Judge, Katihar, in Cr. Appeal No. 17 of 1987 dismissing the said appeal and affirming and upholding the judgment and order dated 30.3.1987 passed by Judicial Magistrate, Katihar, in CA No. 428 of 1982Tr. No. 434 of 1987. The learned magistrate had convicted the petitioners under Sections 144 and 379 of the Indian Penal Code. However, instead of sentencing them he ordered them to he released on probation on execution of probation bonds of Rs. 2,000/- (Rupees two thousand) with two sureties of the like amount for two years to maintain peace and good behaviour.
2. It appears that the Trial proceeded on a complaint lodged by Kedar Nath Sah, the opposite party No. 1 alleging that plot No. 1554 and 1555 situated at Mauza Amirpur Hasda under Korha Police Station, district Katihar was attached under Section 146(1) of the Code of Criminal Procedure (hereinafter referred to as the Code) and the complainant being the highest bidder got the land on lease for the period from 29.1.1982 to 28.1.1983 and he raised the paddy crop in the said plots. It was stated that the petitioners, in collusion with each along with 10-15 unknown persons, forcibly harvested the said paddy crop and took away the same causing loss to the tune of Rs. 1,400/- to the complainant and when complainant protested the accused threatened him to kill.
3. On behalf of the complainant three witnesses were examined and documentary evidence was also filed while on behalf of the defence four witnesses were examined. The learned Magistrate, on appraisal of evidence, found the prosecution evidence to be trustworthy and held the charges against the petitioners proved beyond reasonable doubt and, accordingly, convicted them under Sections 144 and 379 of the Indian Penal Code, as already noted above. The learned appellate Court, on reappraisal of evidence, concurred with the findings of fact recorded by the learned trial Court and dismissed the appeal.
4. The learned Counsel for the petitioners has contended that the entire trial is vitiated as the cognizance of the offence was taken beyond the limitation period of three years as prescribed under Section 468 of the Code. It is contended that the incident is said to have taken place on 1.7.1982 and the complaint was filed on 2.7.1984 and the complainant was examined on 3.7.1984. However, cognizance was taken on 17.12.1985. The learned Counsel referred to Annexure-2, the copy of the order dated 17.12.1985.
5. Perusal of the order dated 17.12.1985, as contained in Annexure-2, shows that the said order was passed under Section 204 of the Code after enquiry under Section 202 of the Code. The learned Magistrate found sufficient material to proceed against the accused persons as a prima facie case was made out against them. The learned Magistrate ordered for issuance of summons to the accused. Section 203 of the Code lays down that if after considering the statements on oath of the complainant and of the witnesses and the result of the enquiry or investigation, if any, under Section 202 the Magistrate is of the opinion that there is no sufficient ground for proceeding he shall dismiss the complaint. Thus, in both the Sections 203 and 204 of the Code the words used are sufficient ground for proceeding. It nowhere provides for taking of cognizance at the stage of Section 204 of the Code. Section 190 of the Code lays down as to when cognizance of offence may be taken by the Magistrate. It provides that subject to the provision of Chapter-XIV any Magistrate of the first class or any Magistrate of the second class specially empowered in this behalf under Sub-section (2) may take cognizance of any offence-
(a) upon receiving the complaint of facts which constitute such offence;
(b) upon a Police report of such facts;
(c) upon information received from any person other than Police Officer or upon his own knowledge that such offence has been committed.
6. Section 192 of the Code lays down that any Chief Judicial Magistrate, after taking cognizance of any offence, make over the case for enquiry or trial to any competent Magistrate subordinate to him. Thus, the cognizance is taken under Section 190 of the Code when a complaint is received by a Magistrate containing facts which constitute offence. After such cognizance is taken the Chief Judicial Magistrate may make over the case for enquiry of trial to any competent Magistrate subordinate to him. Chapter XIV of the Code deals with conditions requisite for initiation of a proceeding that is to say regarding taking of cognizance. Thereafter, comes Chapter XV which deals with the procedure to be adopted in the matter of complaints after taking cognizance. It lays down that Magistrate taking cognizance of an offence on complaint shall examine upon both the complainant and the witnesses present. Therefore, Section 200 of the Code also provides for the procedure for proceeding with the complaint after cognizance has been taken. Section 202 of the Code lays down that the issue of process may be postponed and the Magistrate may himself either enquiry into the case or direct an investigation to be made by Police Officer or by such other persons as he thinks fit for the purposes of deciding whether or not there is sufficient ground far proceeding which show that the enquiry under Section 202 of the Code is not made for taking cognizance hut is made only for the purposes at' deciding whether or not there is sufficient ground for proceeding. If after considering the statements on both of the complainant and of the witnesses and the result of the enquiry or investigation under Section 202 the Magistrate finds that there is no sufficient ground for proceeding he shall dismiss the complaint under Section 203 of the Code. Thus, it is simply clear that the cognizance is taken under Section 190 of the Code and, thereafter, the procedure under Section 200 onwards is adopted for dealing with the complaint if the cognizance has been taken on a complaint. The statement of the complainant under Section 200 of the Code or enquiry under Section 202 of the Code comes only after cognizance has been taken under Section 190 of the Code. Therefore, the contention of the learned Counsel for the petitioners that the cognizance is taken only when the learned Magistrate passes order for issuance of process under Section 204 of the Code does not appear to be sustainable and is rejected.
7. The learned Counsel for the petitioner has contended that in the, order .dated 17.12.1985 the learned Magistrate has clearly written that the cognizance of the offence under Sections 144 and 379 is taken. On its basis it is contended that the Magistrate took cognizance on 17.12.1985. That appears to be under some misconception and against the provisions of law as contained in the provision of Sections 190 and 204 of the Code. The proceeding under Section 200 onwards of the Code is held only after taking cognizance under Section 190 of the Code. Therefore, even if the Magistrate has written in his order dated 17.12.1985 that on a consideration of the evidence prima facie case is made out and he takes cognizance it does not mean that cognizance was taken for the first time on 17.12.1985.If anything is observed against the express provisions of law that would not prevail. The provision of law would prevail. Here we are concerned with the contention that the cognizance was taken beyond the period prescribed under Section 468 of the Code. The word 'cognizance' as used in Section 468 of the Code must be read to mean cognizance as envisaged under Section 190 of the Code because that is the express provision under the Code which provides for taking cognizance. Therefore, writing in the order dated 17.12.1985 by mistake that cognizance is taken is of no consequence and it does not change the situation of cognizance having been taken under Section 190 of the Code before proceeding with the complaint under Sections 200 and 202 of the Code.
8. The learned Counsel for the petitioners has next contended that the land in question was under attachment under Section 146(1) of the Code and the complainant could not have filed the complaint in respect of the crop harvested from that land under attachment. The contention of the learned Counsel is that it was the concerned Magistrate who could file the complaint. This contention also does not appear to carry any force. According to the allegations made in the complaint, and noted in the judgments and orders of the Courts below, the complainant had claimed he had taken the land on lease after its attachment by bidding for the same and that the paddy crop was grown by him. Thus, the complainant, who had taken the land on lease for raising the crop and who had grown the paddy crop, was fully competent to file a complaint regarding the taking away of the paddy crop by the accused persons. Even any person, who has even no concern with the property, may set the criminal law in motion if he informs about commission of a cognizable offence and after investigation if Police finds a case to be made out against the accused persons charge may be laid if the information has been given to the Police. Here the proceedings were initiated on complaint filed by the complainant opposite party No. 1 alleging himself to be owner, who had taken the land on lease by bidding for the same and has raised the paddy crop in question. Therefore, the complainant was fully competent to file the complaint.
9. The learned Counsel for the petitioners has next contended that there is inconsistency between the statements of the witnesses and on correct appraisal of evidence the charges should have been held to be not proved.
10. It is well settled that the revisional Court does not ordinarily enter into re-appraisal of evidence when there is concurrent findings of filed by trial Court and the appellate Court. This view finds support from the decision of the Apex Court in the case of State of Karnataka v. Appu Balu Ingale : 1993CriLJ1029 . Therefore, the re-appraisal of evidence would not be permissible by this Court in the revision. There is concurrent findings against the petitioners by two Courts below who have found prosecution evidence to he trustworthy and found the charges to he proved against the petitioners. There appears to he no ground to interfere with the judgment and order under revision.
11. In the circumstances, this criminal revision application is dismissed.