Full Judgment
K.S. Sidhu, J.
1. The application tinder Section 482 Cr. PG has arisen in the following circumstances.
2. One Inder filed a complaint on February 24, 1976 making an accusation that Gordhan Singh, who will hereinafte b(sic) referred to as the petitioner, had committed rape on his wife Kirandevi, and that one Gioraj had commuted an offence against her punishable under Section 323 and 504 IPC. Toe learned Magistrate forwarded the said complaint to the officer in charge of Police Station Bayana under Section 156(3) Cr. PC for investigation.
3. The investigation by the police into this case ran into some controversy. The Investigating Officer, who was originally entrusted with the investigation, was of opinion than n(sic) officer appears to have been committed by any of the accused persons. Tate opinion was recorded by him on March 15, 1976. The investigation was then transferred to Sub Inspector Hiralal. He was of opinion recorded by him as such on May 11, 1976 that both Gordhan Singh and Girraj had committed the offences alleged against them and that therefore, it was a fir case for forwarding the accused to the court for trial. It appears that on same application by an interested party, the higher authorities of she police assigned the task of she investigation to the Circle Officer, Bayana An Assistant Sub Inspector of police held fresh investigation wader the supervision of the Circle Officer, Bayana In the opinion of the Assistant Sub Inspector of Police the petitioner and Girraj did not appear to have committed any offence. He therefore, recommended the cancellation of opinion given earlier by Sub Inspector Hiralal. He submitted his opinion in writing to the Circle Officer.
4 It appears that the accused persona remained absconding during the investigation. Hiralal, the Investigating Officer, made an application to the Judicial Magistrate First Glass Bayana for taking proceedings under Section 82 and 83 Cr. PC to compel the appearance of the accused. On May 7, 1976, the learned Magistrate allowed the application and directed the issue of necessary proclamation under Section 82 Cr. PC. The proceedings under Section 82 and 83 Cr. PC remained pending before the learned Magistrate for a long time. On May 23, 1977, the learned Magistrate passed an order as a step in aid of the proceedings under Sections 82 and 83 Cr. PC directing the production of the case diary before him. Earlier on May 19, 1977, the complainant Inder made an application to the learned Magistrate which is described as a protest petition for issue of process against the accused persons. The case diary was received by the learned Magistrate from the police on May 31, 1977. He passed an order of even date directing the parties' counsel to adress arguments in the case.
5. After hearing arguments the learned Magistrate parsed an order, dated, June 21, 1977, taking cognizance of the Offences under Section 376 IPC against the petitioner and under Section 323 IPC against Girraj He purported to do so on the basis of the police report in accordance with the provision of Section 190(1)(b) Cr. PC. He made it clear in. this order that he was prima facie satisfied on the basis of the statement recorded by the Investigating Officer under Section 161 Cr. PC that both the petitioner and Girraj appear to have committed the offences as mentioned above. He also ordered that both the accused be summoned to appear before him.
6. Feeling aggrieved by the order dated June 21, 1977 passed by the learned Magistrate taking cognizance of the offence under Section 376 IPC, the petitioner made an application in the court of sessiors at Bharatpur, for revision of the aforementioned order. By his order stated, December 19, 1979, the learned Additional Sessions Judge dismissed the petit von of revision and directed the learned Magistrate so proceed further in the matter according to law.
7. The petitioner was still not satisfied and therefore filed the present petition under Section 482 Cr. PC invoking the extra-ordinary jurisdiction off this Court under that Section for quashing the proceedings against him in criminal case No. 130/1977.
8. Learned counsel for the petitioner frankly conceded during the course of arguments that the prayer for quashing the entire proceedings in criminal case No. 130/1977 is rather too broadly worded and that the only grievance of the petitioner is against the order of the learned Magistrate dated June 21, 1977, whereby he purports to have taken cognizance under Section 376 IPC against the petitioner in accordance with the provisions of Section 190(1)(b) Cr. PC.
9. After hearing both sides, and oerusing the record, I am of opinion that the impugned order dated June 21, 1977, passed by the learned Magistrate taking cognizance in the matter under Section 190(1)(b) Cr. PC cannot possibly be sustained. It will be seen that the case is still under investigation by the police and that the officer Incharge of the police station concerted has not so far forwarded any police report to the learned Magistrate in accordance with the provisions of Sub-section (2) of Section 173 Cr. PC. What happened was this that at a time when the investigation was still in progress, the learned Magis trate sent for the case diary and on perusal of the same came to the conclusion that the petitioner appears to have committed an offence punishable under Section 376 IPC. Without waiting for the formal police report from the officer Incharge of the police station concerned, he took cognizance in the matter purporting to do so under Section 190(1)(b) Cr. PC. Now it is obvious that there cannot be any question of taking cognizance until the police has forwarded a police report to the Magistrate in accordance with the provisions of Sub-section (2) of Section 173 Cr. PC. On this short ground alone the impugned order deserves to be quashed.
10. This is how ever not the end of the matter. It will be recalled that the complaint which is being loosely described as a protest petition filed before the learned Magistrate on May 8, 1977, is still pending before him. There is nothing to prevent him to take cognizance of the offence under Section 376 IPC on the basis of the said complaint. The Magistrate is also competent to take cognizance in the master in his own knowledge in accordance with the provisions of Section 190(1)(c) Cr. PC. The source of his knowledge could be any thing including the ease diary summoned by him from the police on May 31, 1977. Now if he wishes to take cognizance in of the matter otherwise than on a police report, he is free to do so, but in that case he will have to bear in mind the relevant provisions of law. For example, if he were to take cognizance on the complaint filed by Inder on May 19, 1977, he shall have to follow the procedure prescribed by law in Sections 200, 202 and 210 Cr. PC. If on the other hand, he takes cognizance on his own knowledge, he will have to follow the procedure prescribed in Section 191 and Section 210 Cr. PC.
11. In conclusion, therefore, I allow this petition to the extent indicated above, quash the order dated June 21, 1977 and remand the case to the learned Magistrate to proceed further in the matter in the light of the observations made above.