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Criminal Revision No. 68 of 1968, decided on 7th February 1968.

, Ss. 203 do 403, Explanation‑Dismissal of complaint for non‑prosecution‑Does not operate as a bar to entertainment of fresh complaint on same allegations for decision on merits.

S. 201‑Mere mention of a certain section of offence in complains without disclos ing justifiable applicability‑Held, would not be determinative of jurisdiction of Court‑Proceedings prior to issue of process to accused Do not amount to taking "cognizance" of case.

No doubt section 201, Cr. P. Code makes it incumbent on a Magistrate not competent to take cognizance of a case to return the complaint for presentation to the proper Court, but it does not stand to reason that the mere mention of a certain offence whose applicability is not prima facie justifiably disclosed in the complaint itself would be determinative of the jurisdiction of the Court.

To hold that the Magistrate should stay his hands on merely looking at the sections mentioned in the complaint would not be putting a reasonable construction on the language of section 201, Cr. P. Code, inasmuch as it is not the mention of the section that would determine the jurisdiction but prima facie justifiable application of the section which could be inferred after the examination of the complainant or an inquiry under section 202, Cr. P. Code, etc. The expression, "taking cognizance" does not ipso facto mean the entertainment of the complaint by the Magistrate but the application of his mind to the suspected commission of an offence. Thus proceedings prior to the issue of process to the accused do not amount to taking cognizance of the case and as such the provision contained in section 201, Cr. P. Code could not properly be invoked in such a case.

Razi Abbas Bokhari for Petitioner.

Major Waheed‑ud‑Din for A.‑G' for the State.

Nemo for Respondent No. 1

This Criminal Revision has arisen in the following circumstances:

On 20th May 1967, one Fazal Husain filed a complaint in the Court of the Assistant Commissioner (Magistrate Second Class), Jhelum, against Gulab petitioner and four others under sections 147, 148, 323/452 P. P. C. The complaint appears to have been consigned to the record room on the same day, presumably for non‑prosecution. Again, on 14th June 1967, Fazal Hussain complainant filed a fresh complaint in the same Court reiterating the same allegations. After having recorded the pre liminary evidence the learned Assistant Commissioner summoned the petitioner and four others to answer allegations under sec tion 452/323, P. P. C., vide his order dated the 28th of Juno 1967. Feeling aggrieved the petitioner alone challenged this order in revision before the learned Sessions Judge on the ground that the learned Assistant Commissioner having been invested with powers of Second Class Magistrate only was not competent to try an offence under section 148, P. P. C. which was triable by a Magistrate First Class and as such the entire proceedings in that Court were void ab initio. This however, did not find favour with the learned Sessions Judge and having failed, the petitioner has now filed the present Criminal Revision.

2. The learned counsel for the petitioner has challenged the impugned orders on a two‑fold ground, firstly that on the dismissal of the earlier complaint for non‑prosecution a second complaint on the same allegation, was not competent and secondly; that one of the offences alleged, namely, an offence under section 148, P. P. C. being exclusively triable try a First Class Magistrate, the learned Assistant Commissioner was not competent to take cognizance of the matter and should have returned it to the complainant for presentation to the proper Court, as provided in section 201, Cr. P. C. Reliance is also placed in this regard on District '1‑fagistrate of Ouddayah v. S. Abdul Kareem (A I R 1943 Mad. 526) and Dr‑ Sanmukhsing Tejasing Yogi v. Emperor (A I R 1945 Sind 125).

3. On the contrary the learned counsel appearing for the State has contended that since there was no final determination of the first complaint, there was no legal bar to file a fresh complaint on the same allegations. Reliance is placed on Abdul Hossain Sana v. Suwalal Agarwala and others (P L D 1962 S C 242). In answer to the second contention, it is argued that since from the allegations as set out in the complaint itself, the ingredients of an offence under section 148, P. P. C. were patently missing, the mere insertion of the section, therefore, did not create a bar to the entertainment of the complaint by the Assistant Commissioner, who could otherwise take congnizance of all other offences under sections 147, 323/452,

4. The learned counsel for the petitioner could not cite an authority in support of his contention that the dismissal of a complaint for non‑prosecution would operate as a bar to the entertainment of a fresh. complaint on the same allegations. Obviously, this being not a case of discharge much less o acquittal, there could hardly be any objection to the entertainment of the complaint on the same allegations for decision on merits. The objection is accordingly overruled.

5. As regards the second contention, no doubt section 201, Cr. P. Code makes it incumbent on a Magistrate not competent t take cognizance of a case to return the complaint for presentation to the proper Court, but it does not stand to reason that the mere E mention of a certain offence whose applicability is not prima facie justifiably disclosed in the complaint itself would be determinative of the jurisdiction of the Court. Section 148 of the Penal Code punishes members of an unlawful assembly for rioting when armed with deadly weapons of with anything which used as weapon of offence is likely to cause death. In the instant case, the petitioner and his co‑accused had allegedly wielded sticks having caused simple hurts to the complainant and others. The learned Assistant Commissioner was, therefore, justified in taking cognizance of the case as the ingredients of section 148, P. P. C. were missing at the very outset and could not be reasonably spelt out from the allegations contained in the complaint, To hold that the Magistrate should stay his hands on merely looking at the section mentioned in the complaint would not be putting a reasonable construction on the language of section 201, (:r. P. Code, inasmuch as it is not the mention of the section that would determine the jurisdiction but prima facie justifiable application of the section which could be inferred after the examination of the complainant or an inquiry under section 202, Cr. P. Code, etc. The expression "taking cognizance" does not ipso facto mean the entertainment of the complaint by the Magistrate but the application of his mind to the suspected commission of an offence. Thus proceedings prior to the issue of process to the petitioner and his co‑accused did not amount to taking congnizance of the case and as such the provision contained in section 201, Cr. P. Code could not properly be invoked by the petitioner. On this view of the matter, the Courts below were justified in passing the impugned orders. The authorities relied upon by the learned counsel proceed on entirely distinguishable facts and have absolutely no bearing to the instant case.

6. The upshot of the discussion, therefore, is that the petition fails and is hereby dismissed.

Petition dismissed.

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