B.D. Singh, J.
1. This application in revision has been preferred Under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by Bhuneshwar Singh and 15 others, for quashing the order dated 20-2-68, passed by the Sub-Divisional Magistrate, Jehanal ad, who had taken cognizance against the petitioners Under Sections 147,148,149, 323, 324 and 837 of the Indian Penal Code and transferred the case to the Court of shri M. Q. Hoda, Munsif Magistrate, first class, for disposal.
2. In order to appreciate the points involved in this application it will be necessary to state briefly the facts of the case. There was one Sheo Satan Singh who had four sons, namely, Euer Singh, Bisal Singh, Harihar Singh and Shital Singh. Bisal died leaving behind Sanjoga Kuer as his widow and Shital died leaving behind Bajrani Kuer as his widow. Harihar had one son, namely, Bam. kishore. After the death of Kuer, Bisal, Harihar and Shital, the property of the joint family devolved on Bam Kishore. According to Gupteshwar Singh, opposite party No, 2, Ramkishore executed a deed of gift in favour of Kam Singh and Chhotan who were minors. Therefore, their mother Bindeahwari Devi executed a Bale-deed dated 3-1-67 in favour of opposite party No. 2 regarding land and a house contained under plot no, 636/ 1205 situated in village Rajkharaa, police station Arwal, District Gaya.
3. On the other hand, the case of the petitioners is that the said plot and the house were purchased by petitioner No. 1 from Bajrani Devi widow of Shital on 1-2-66 by a registered sale deed and after the purchase the petitioner No. 1 is in possession of the disputed property. Therefore, a dispute arose between the parties for the said property. Opposite party No. 2 lodged a first information report on 10-1-67 before Arwal Polioe which was registered as case No. 4/1/67. Whereas petitioner No. 1 lodged saneha on 8-1 67, before the Sub-Inspector, Arwal Police, as the opposite party No. 2 threatened the petitioner No. 1 to dispossess him from the eaid property. According to the petitioners, the Sub-Inspector of Police visited the spot on 8.1-67 and deputed a constable to maintain peace. Their further case is that on 10.1.67 the opposite party No. 2 along with others, came armed with lathi, bhala etc and committed an offence Under Sections 147, 148, 323 and 337 ot the Indian Penal Code. Therefore, petitioner No. 1 also lodged a first information report on 10-1-67 which was registered as Arwal Police Case No. 3/1/67.
The police submitted charge.aheet in P, S Case No. 3 which was instituted by petitioner No. 1. after which cognizance was taken and the same is pending for trial before the Munsif Magistrate, Jehanabad.
Whereas in P. S. Case No. 4, which was instituted at ths instance of opposite party No. 2, the police submitted final report. Against that opposite party No. 2 filed protest petition on 25.2-67 before the Sub-Divisional Magistrate who took cognizance on 20.2-68 against the petitioners and transferred the case to the Munsif Magistrate for disposal by the impugned order. Hence this revision.
4. learned Counsel appearing for the petitioners has raised the following points for consideration :
(i) The Sub.Divisional Magistrate has committed an error in not examining the opposite party No. 2 on oath before taking cognizance as required Under Section 200 of the Code.
(ii) No prima facie case has been made out by the opposite party.
5. I will take up first point No. (i) for consideration which alone is the important point involved in this case. learned Counsel for the petitioners has contended that non-examination of opposite party No. 2 on oath is fatal, and the provisions contained under the said Section for examination on oath is mandatory. In order to support his contention he has re. lied on a single Judge decision of the Calcutta High Court in Yakub Sheikh v. King where his Lordship observed that when Magistrate takes cognizance upon a complaint he is bound under the provisions of 8. 200 of the Code, to examine the complainant on oath at once. The failure to do this is fatal. He has further relied on a decision of the same High Court in Sushil Kumar Hazra v. Banka Mahato AIR 1957 Cal 893. This is also a single Judge decision and my attention has been drawn to para. 8 at p. 395, the relevant portion of which reads:
(b) In the present case, however, there was no order of discharge on the merits. As "' soon as the Magistrate discovered that the proceedings had no foundation in law he made the order 'discharging' the petitioners from the proceedings on the ground that they had no legal basis. This order did not in any way involve consideration of the merits of the case. When the Naraji petition was filed, it was clearly the duty of the Magistrate to treat it; a3 a complaint, and to proceed straightway to the examination of the complainant Under Section 200 of the Code of Criminal Procedure. Instead of doing that, the learned Magistrate directed a judicial enquiry to be held. At this enquiry some evidence was taken, and a report followed on receipt of which the Magistrate directed the issue of process against the petitioners. Clearly this involved infringement of the mandatory pro. visions of the law inasmuch as the Magis-trate had failed to examine the complainant on oath in accordance with the provisions of Section 200 of the Code of Criminal Procedure....
6. On the other hand, learned Counsel appearing on behalf of opposite party No. 2 haa contended that on 13-5-1967 the petitioners appeared before the Sub-di visional Magistrate and filed an application for calling for police diary and supervision note in case:No. 3 which was instituted at the instance of petitioner No. 1. On 12-6-1967 counsel for the petitioners pressed their application on 29-6-1967. At their instance the Sub.divisional Magistrate ordered for calling for the diary and the supervision note in Case No. 3. Consequently both the diary and the supervision note arrived on 12-2-1968. Both parties were beard by the Sub-divisional Magistrate. Later, on 20-2-1968, after perusing the case diary in Case No. 4 which was instituted at the instance of op. posite party No. 2; as well as the case diary and supervision note of Case No. 3, whioh was instituted at the instance of petitioner No. 1, the Sub.divisional Magistrate, observed that a perusal of the case diary indicates that there is sufficient material to put the accused on trial. Hence, the Sub.divisional Magistrate took cognizance by the impugned order against the petitioners. Therefore, according to learned Counsel for the opposite party No. 2, the manner and the circumstances under which the cognizanoe was taken clearly indicate that it was so done Under Section 190 (1), Clause (c)i of the Code, the relevant portion of which reads as follows :
Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence
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(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.
He urged that in the instant case the Sub-divisional Magistrate has not proceeded under clause (a) of Section 190 which reads as follows :
(a) upon receiving a complaint of facts which constitute such offence.
Therefore, according to him, the Magistrate has not treated it as a complaint case. In order to support his contention he has relied on a recent decision of the Supreme Court in Abhinandan Jha v. Dinesh Mishra and has drawn my attention to a portion of para. 17 at p. 123 where their Lordships have observed;
.... There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, Under Section 190 (1)(c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, Under Section 190 (1) (c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed....
7. However, learned Counsel appearing on behalf of the petitioners, has submitted that this decision of the Supreme Court related to a Police case and, therefore, this will not be applicable in a case where a protest petition has been filed, which is obviously a complaint case. learned Counsel appearing on behalf of opposite party No. 2 submitted that even if it was treated as a complaint case, non-examination of opposite party No. 2 on oath would be merely an irregularity and it will not be fatal. It has not been treated as mandatory provision by a series of decisions of this High Court and in order to support his contention he has relied on a Full Bench decision of this Court in Bharat Kishore Lai Singh Deo v. Judhistir Modak AIR 1929 Pat 473. In that case their Lordships were considering Sa. 200 and 202 of the Code and their Lordships observed that omission to examine a complainant on oath is not an illegality, but is merely an irregularity, in which case the court has to see whether the accused, by reason of the irregularity has been put to any substantial injustice. It will be relevant also to quote the following observation of their Lordships at pp. 475.76:
....Every High Court in India has held that the omission to examine the complainant on oath is in fact not an illegality but is an irregularity and being an irregularity the next question that arises is as to whether the petitioner has by reason of the irregularity been put to any substantial injustice. In this case Judhiatir Modak who lodged the original petition was in fact examined as a witness for the prosecution. He was examined in the presence of the present petitioner and he was cross-examined by the petitioner's legal adviser. Therefore the petitioner cannot be said to have suffered any injustice....
Similar view was taken in a later decision by this Court in Begam Rai v. State , where it was held that non-examination of complainant on oath is not illegality but only irregularity. See also a Bench decision of this Court in State of Bihar v. Deodar Jha A.I.R. 19E8 Pat 51, where a similar view was taken.
8. learned Counsel appearing on behalf of the petitioners submitted that in all those Patna decisions no prejudice was caused. In A.I.R. 1929 Pat 473 (supra) the complainant was examined later en in presence of the petitioner, and he was cross-examined by the petitioner's legal advisers. Therefore, he submitted that in that case no prejudice was caused. But in the instance case, prejudice has been caused to the petitioners. In my view, this contention of learned Counsel cannot be accepted. I am of the opinion that in the instant case also, no prejudice was caused to the petitioners. Their counsel was also heard on the 20th February, 1968, before the impugned order was passed, so much so that the petitioners themselves asked for calling for the diary and the supervision note also of their own Police Case No. 3, which were called at their instance and after perusing the Police diary and the supervision note and after hearing the parties, the impugned order was
9. On consideration of the various authorities of this Court particularly the Full Bench decision, referred to above, in my opinion, the contention of learned Counsel for the petitioners cannot be accepted. The non-exa-mination of opposite party No, 2 on oath was merely an irregularity and it waa not fatal in the facts and circumstances of the case. I am not inclined to follow the decisions of the Calcutta High Court referred to above. There, fore, this point is decided against the petitioners.
10. Now I turn to point No. (ii). This point was not seriously pressed by the petitioners. Besides, there is nothing to show that no prima facie case was made out by the opposite party, On the contrary, in the order itself the Sub-divisional Magistrate has mentioned that the case diary of Case No. 4 was before him. He further mentioned that the case diary and the supervision note of Arwal P. S. Case No. 8 were called for and looked into by him and on perusal of the case diary he found sufficient material to put the petitioners on trial. Therefore, he took cognizance. Thus, there ii no merit in this point either.
11. In the result, the impugned order has got to be maintained. The application, therefore, fails and is accordingly dismissed.