S.27 of the evidence act & the ruling in shivaji’s case

(X.P. Devassy, Advocate,Trichur)

In Narayana Pillai Vasudevan Pillai and another v. The State of Kerala, reported in 1968 Cr. Law Journal at page 1362, a Division Bench of the Kerala High Court held that a knife (M. O. I) recovered from Pw. 13 in that case to whom it was given by Pw. 7, who took it from the bank of a temple tank, is admissible in evidence as a relevant fact under S. 27 of the Evidence Act. The correctness of the proposition of law is open to serious doubt. For holding so, the learned Judge Issac J., with whom Justice Raghavan concurred, relied on cases reported in AIR. 1941 Madras, 290 and 1919 Lahore 184. Following these two rulings, the learned Judge observed in para 20 of the Judgment: What is made admissible in evidence by this section is so much of the information received from an accused person by a police officer as relates distinctly to any fact dis­covered in consequence of the said information. The relevancy of the said informa­tion and of the fact discovered is governed by other provisions of the Evidence Act’’. (May be Ss. 3 & 5 of the Evidence Act). Now, in this case, the fact discovered is the knife M. O. 1 and if it was discovered consequent on any information received from the 1st accused, so much of the information which distinctly relates to its discovery is admissible in evidence”. The two rulings relied on by the learned Judge also follows the same line of reasoning. This view will be perfectly correct, if the fact discovered in S. 27 of the Evidence Act relates to the material object discovered or produced which is of an incriminating nature. It is submitted that the fact discovered in S. 27 does not relate to the object produced or object discovered. The divergence of the judicial’ opinion regard­ing this matter prevalent in Indian High Courts was set at rest by the pronounce­ment of the Privy Council in Pullukuri Kotayya v. Emperor(AIR 1947 PC. 67). Sir John Beaumont, speaking for the Board, repelled the arguments raised for the Crown, namely, that the fact discovered or produced and any information which relates distinctly to that fact, can be proved, and observed in para. 10 of the judgment: “On the normal principles of construction, Their Lordships think that the proviso to S.26 added by S.27 should not be held to nullify the substance of the section.” In their Lordships’ view, it is fallacious to treat “the fact discovered’ ’within the section as equivalent to the objects produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user, or past history or the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife con­cealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of a fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant’’.

In Kottayya’s case,Their Lordships of the Privy Council reversed the rulings reported in ATR. 1937 Madras 618 and approved 1929 Lahore 344 (FB.). In AIR 1941 Madras 290, followed by the Kerala High Court, the” Madras High Court-relied on ATR 1937 Madras 618 for its decision. The decision in AIR 1919 Lahore 184 has not been referred to in 1929 Lahore 344 (FB.). Hence after the Privy Council ruling, 1941 Madras case and 1919 Lahore case ceased to be good law.

It would appear that the Privy Council treated the “fact discovered” in S. 27 of the Evidence Act as meaning “The place from where the incriminating article is produced or discovered”‘ and the knowledge of the accused as to this fact. This knowledge of the accused is treated as relevant under S.27 of the Evidence Act. The knowledge of the place where the incriminating articles are discovered, is attributed to the accused, if, in fact, the discovery was made from the place in pursuance to the information given by the accused person in custody of the police. In the instant case, no incriminating article was recovered from the place where the accused- said that he threw the kni-fe and the recovery was made from a third person. How the said recovery could be brought under S.27 of the Evidence Act as relevant is open to serious doubt in view of the interpretation of S. 27 by the Privy Council. The recovery was from P. W, 13 and no knowledge of this fact could be attributed to the accused. The relevant fact is that an incriminating article is concealed in such and such a place, which was till then unknown to the police officer investigating the crime and the police officer was enabled to recover the incriminating article from the place either pointed out by the accused or informed of by him, thereby affording a guarantee of truth for his statement. If the police are already in possession of the information from some other source regarding the place of concealment of the incriminating article, then a further information of the same nature eman­ating from the accused person is irrelevant under the section and not provable (Vide AIR. 1956 Supreme Court, 217 at page 223, Rajakhima v. State of Sourashtra). It is clear from this statement of the law by the Supreme Court, that it is the knowledge of the place of concealment, thereto unknown to the police, that is imparted by the accused person to the police which is relevant under the Section and not the material object as such.

The T-C. High Court approved and accepted the principles laid down in the Privy Council case in a number of rulings, the 1st of which appears in 1952 KLT. 216, where Justice Koshi (as he then was) observed in para 4 of the judg­ment thus: “We take the liberty to tell sessions judges and public prosecutors that \he decision of the Privy Council in Pullukuri Kottayya v. Emperor (AIR. 1947 PC. 67) will well repay perusal” and then quoted the decision in extenso. The view was, again reiterated in 1954 KLT 737 also. The present ruling of the division bench of the Kerala High Court is likely to embarass the lower judici­ary, when they are called upon to decide the applicability of S. 27. With due deference to the learned judges, who rendered the judgment, it is humbly submitted that the view of the Bench appears to be incorrect and deserves reconsideration by a Full Bench.

Are separation agreements between spouses valid

(J. Duncan M. Derrett, London)

My article on “Are Separation Agreements between spouses valid” appeared unsatisfactory to Mr. P. R. Baldota who wrote a rejoinder entitled ‘‘Separation Agreements between Spouses” at 70 Bom. LR., Journal, pp.163-166.

In Mr. Baldota’s view there is a “fundamental distinction between the issue of the maintainability of a wife’s claim for maintenance under a separation agreement and the issue whether such an agreement can be a valid defence to a petition for restitution of conjugal rights.” He believes that agreements for separation are valid only for a time. He urges that the agreement is no longer binding after one party has tired of it and repudiated it; and that such agreements should not be a means whereby wives can buy freedom by making a down pay­ment” (?), In his view as soon as a wife repudiates the agreement she can institute a petition for restitution, and the husband cannot plead that agreement as a defence.

Mr. Baldota quotes no authority for these views. In some respects they seem to run contrary to two well known principles, namely that agreements for consideration are not invalidated by unilateral repudiation by one party; and, more specifically in point, it is well known that ladies unlikely to remarry are keen to separate .from a spouse whom they can no longer bear, without having to undergo litigation and scandal and indeed the obloquy of being divorced. Separations by mutual consent are frequent in all classess of society, and it is usually only where further marriages are contemplated or family quarrels develop that litigation, and in particular litigation for divorce, breaks out. If it were to be possible for the spouse who has lived separate for some time to bring a restitution action wherever she chose, and so indirectly obtain a divorce although the husband is totally free from matrimonial offence against her, there would appear to be some irregularity in the law.

Yet, although I do not find myself convinced by Mr. Baldota’s arguments, he has raised, indirectly, a question of a much larger importance, de lege ferenda. England at any rate is moving towards a position in which breakdown of the marriageis the only or at any rate the principal ground for divorce. The heat of “matrimonial offences” will be taken out of divorce cases. No doubt, when the profession has adjusted itself, the result will be in many ways advantageous. I am not* so sure whether India is ready for such changes. It has not yet digested the changes of 1955. Yet there is something to be said constructively along the lines of conciliation, and in particular reconciliation. Courts are measuring up at last to their responsibilities. Procedure exacerbating trouble between husband and wife is beginning to be seen as against public policy. The Court must look into the real issues and not simply the pleadings (Chhote Lai v. Kamla Devi AIR. 1967 Pat. 269; M.Someswara v. Leelavathi AIR. 19.8 Mys. 274), and make a real endeavour to see to it (following the injunction written out in sec. 23 (2) of the Hindu Marriage Act) that the parties are reconciled.

If public policy requires that reconciliations are to be fostered two results seem to flow from this: (1) voluntary and equitable separation agreements should be encouraged rather than litigation; and (2) some means should be found where­by, when one party wishes to return, the aid of the court (so long as we do not have a lay matrimonial tribunal) should be sought to recall the other to the obligations of marriage and to discover the real impediments to the resumption of married life. It may be that restitution proceedings as at present envisaged are not the ideal way to achieve this, but it should be possible to devise a method whereby when the recalcitrant party pleads the separation agreement the petitioner should be entitled to show that there has been a material alteration in the facts such as would undermine the permanent validity of the agreement, thus allowing the other party to be in desertion.

Are Separation Agirts Between Spouses Valid?

(J. Duncan M. Derrett, D. C. L., Professor of Oriental Laws in the University of London)

In a decision of far-reaching significance (if it is correct) the Madras High Court has opined that not only ante-nuptial but also post-nuptial agree­ments to separate are void. Mulla’s Hindu Law, 13th edn.,p. 645 is cited for the view that present agreements to separate are valid, and we are now told in Thirumal Naidu v. Rajammal(1967) 2 MLJ. 484 that Mulla is wrong.

The wife sued for restitution of conjugal rights under the Hindu Marriage Act, 1955. The husband put forward an agreement between them that they should live separately. If the agreement was valid and binding the husband could not have left the wife without her consent and he could not have “with­drawn from the society of the (wife)” without reasonable excuse within the meaning of S. 9(1) of that Act. The wife argued that the agreement was extorted from her by unfair means, but in view of other arguments the learned judge did not pursue that aspect of the matter. He was satisfied that, even if the agree­ment had been freely consented to by her in full knowledge of her rights, it would have been void and would not have bound her.

This, it is submitted, is a matter of the greatest importance, to be taken very seriously. The basis of the judgment of the learned judge is one to which this writer would be inclined at first sight to give every possible support. It is an Indian judgment, based on Indian ideas and Indian cases, and’it rejectsas inapplicable the modern trend of English case law as not providing a proper precedent in the conditions of India, particularly in the background of the Hindu society. This is the sort of approach we have always wanted. But is it correct in this instance? The present writer started off with a hope that it would turn out to be correct, for the persistence of Hindu traditional ideas about marriage, Hindu norms even in the midst of non-Hindu practices, is a fact of life and deserves to be recognised adequately.

The learned judge notices English cases which, long ago, viewed seperation agreements with suspicion, and so considered many of them against public policy and so void: See Wilson v. Wilson 0848) 1 H L. Cases 538, H. L. It is manifest that this particular point of view is obsolete in England and countries u taking a similar view of the spouses’ contractual powers. Does it survive in India? The only cases to which the learned judge refers are ones to which, to start with, we must give particular attention. In the antiquated case of Tekait- Mon Mohini Jemadai v. Basanta ‘Kumtr Singh (1901) ILR. 28 Cal. 751 it was decided that a Hindu wife must reside, as a matter of Hindu law, with her hus­band wherever he chooses to reside-a proposition which, though not judicially declared not to be good law, is surely one which by no means everybody- would accept as the last word on that subject. The judgment of Mr. Justice Ghose goes into texts and case-law, both Indian and English, and concludes that an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove the wife from her parental abode is invalid as inconsistent with the Hindu law and against public policy. With respect, this must be right, for under Indian conditions many a son-in-law would be victimised were the contrary to be the law. Readers can call upon their own personal knowledge to confirm this aspect of the matter. It is evident that what was rejected by the learned judge was the ante-nuptial character of the alleged agreement and its tendency to place the husband himself within the power of the wife’s parents- a situation which seemed evidently contrary to public policy. But we may mark his words (p. 765):

“There is a fundamental difference between a case where an agreement for separate living for a time is entered into during the continuance of marriage and an agree­ment before or at the time of marriage controlling the rights of the parties which the law confers upon them after the marriage and which, if enforced, might make the marriage itself nugatory or infructuous. Such an agreement would seem to be opposed to public policy.”

Such an agreement was struck down in Tekait case.

In Krishna Aiyar v. Balammal (1911) ILR. 34 Mad. 398 a Brahmin, after refusal by his wife B to return, brought a suit for restitution in 1903. The suit terminated in a compromise between A and B in July 1904, by which it was agreed that B should return and live with A and that if at*any time thereafter she should desire to live apart from A, she was to be paid Rs. 350 by A. B never returned to live with A, who in July 1907 brought a suit for restitution alleging a demand and refusal in February 1907. It was held, following the Tekait case (1901) ILR. 28 Cal. 751 that the agreement, providing for a future separation, was invalid, it was forbidden by the Hindu law. Such agreements must be considered as opposed to public policy and unenforceable. Their Lordships, Sankaran Nair and Krishnaswami Ayyar, JJ , were fortified by the fact that the English law (at that time, 1910) was the same. The only other case referred to was that of Meherally v. Sakerkhanoobhai (1905) 7 Bom. L. R. 602 a similar case between Khojas.

Now it happens that shortly thereafter the English law took a turn. The proposition upheld in Krishna’s case is no longer accepted since MacMahon v. MacMahon: Purser v. Purser (1913) 11. R. 428 in Ireland in 1913, being followed in Meyrick’s Settlement: In re Meyrick v. Meyrick (1921) 1 Ch. 311 in 1921, itself followed in Lurie v. Luric (1938) 3 All E. R. 156 in 1938.

Our question now is whether post-nuptial agreements to separate are void ab initio because they are contrary to the Hindu law. The English law by no means strikes such contracts down unless they contain some other unlawful element: P. M. Bromley, Family Law, 3rd edn. (1966), p.188; Derrett, Intro­duction to Modern Hindu Law (1963), § 312. If such contracts are void thousands of arrangements now in operation throughout India fall to the ground. From where did the notion come that spouses could separate by agreements if the Hindu law was so opposed to them? The answer, one regrets to say, is simply this that the Hindu norm was that the wife should never leave her hus­band, but that practice has enabled the wife to live apart with her husband’s consent. That this can happen even in the eye of the law is plain from the wording of the Hindu Marriage Act itself, S. 10(1) Explanation.

“...In this section, the expression ‘‘desertion’, with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party...”

What “consent” would this be if agreements to live apart could not be entered into?

The range of cases dealing with this question is enormous. Wives are coming before the courts and praying for an enhancement of their allowance under separation agreements, and if the latter come within S. 25 of the Hindu Adoptions and Maintenance Act, 1956, as they most frequently do, the prayer is granted. Would the courts be doing this if such agreements were void and against public policy?

One may suppose that it did not occur to the learned judge in Madras that agreements for the wife’s separate maintenance were separation agreements! The style of the usual textbooks on Hindu law is such that separation agree­ments do not form a chapter (the present writer’s is the exception). Neverthe­less it is clear that when a husband goes to the length of formally agreeing that he shall pay maintenance to his wife he is consenting to her living apart from him permanently or indefinitely, and her consent to accept this allowance makes the agreement a separation agreement even though it may not contain the non-molestation clause which is a frequent (but not invariable) ingredient in English separation agreements.

Mulla, in his commentary on the Hindu Marriage Act (Hindu Law, 13th edn.,p. 645) rightly points out that the Tekait case(\90\) 1LR. 28 Cal. 751 made a careful distinction between ante-nuptial and post-nuptial agreements. Mulla (i. e. the editor, Sri S. T. Desai) adds

“...There seems no reason why a valid agreement for immediate and not future separation bona fide entered into during the continuance of marriage with a view to enable the parties to live in peace should not be treated as empowering the court to refuse a decree for restitution.” In the present writer’s submission this is correct.

Further, if the remedy of judicial separation has been made available, as it has, to spouses under the Hindu Marriage Act, how can it be said that volun­tary separation is impossible? Can it seriously be argued that what can be obtained through the court could not be arrived at validity by the parties by way of settlement or compromise? If such a notion should be upheld there would be an anomaly of a most curious kind, unknown to Indian law. No one will seek to uphold the Madras judgment under discussion on the ground that it will give extra work to the Bar.

Finally, the present writer invites readers to look at a few sample cases where actual separations had taken place by agreement between the spouses, in not one of which separation was disputed on the-ground that it contravened the Hindu Law or public policy: Darasikrishnayya v. Darisi Hanumayamma (1955J AIR. N.U.C. 671 (Madras) (January 27,1954) (where the terms of the agreement are set out fully); Subbayyan v. Ponnuchami Chettiar (1941) AIR. Mad. 727; Sivagnana thammalv. Sankarapandian Pillai (1955) AIR. N.U.C. 1453 (Trav. Co.) (Feb. 26, 1954); Purshottamdasv. Rukshamani (1936) 39 Bom. L.R. 458, SC. (1938) Bom. 1, (1937) AIR. Bom. 358 (a particularly strong case); Seshi Ammal v. Thaiya Ammal (1964) AIR. Mad. 217 (cf. Pathuri Veer annas. P. Setthamma (1967) 2 An. W. R. 475) on the subject of the right to an enhancement); Mussammat Sham Devi v. Mohan Lai (1933) ILR. 15 Lah. 591 (where separate living by consent is parti­cularly adverted to at p. 595).

If, it is asked, how then do wives who have accepted maintenance as part of a separation agreement come forward later as plaintiffs suing for restitution, and why should not the court allow them to attempt to effectuate a reconcilia­tion j because they after all remain wives in the eye of the law, the _ answer is simply this: not that they want a reconciliation and want to live with their hus­bands again, but that they want mors money out of them. The case is the same in reverse with the husbands who sue for restitution when their wives have applied for maintenance from them under S. 488 of the Criminal Procedure Code: the husbands do not want a reconciliation-all they want is to avoid paying the money. A simple solution, and unworthy of the highfaluting appeals to the spirit of the Hindu law and spouses’ duty to remain ever faithful, like birds in a nest. Let us by all means remain aware of the traditional factors which make Hindus ‘Hindus’: but let appeals to them not be mainfestations of dissimulation.

Is it sufficient to implead the Receiver alone in an application

under S. 31 of the Kerala Land Reforms Act, 1964

(M.N. Ganapathy Iyer, Advocate, Palghat)

S. 31 (2) of the KLR. Act enjoins that “on receipt of an application under sub-section (1) the Land Tribunal shall issue notices to all persons inter­ested, and after inquiry determine” etc. The requirement as to impleading all persons interested is based on the principle that a person whose interest is not represented in an adjudication cannot be bound by it.

2. It has been held by the Kerala High Court in 1960 KLT. 68 (73) that the Receiver appointed by a Court is only a caretaker and he has no interest in a legal sense, in the estate under his charge.

3. Even assuming that the Receiver has any interest in the estate, the requirement under S. 31 (2) is that all persons interested’ have to be impleaded.

The parties to the suit have thus to be impleaded, so that the adjudication can affect and bind their interests.

4. S. 104 of the same Act, however, provides in Sub-S. (1) “Where in any proceeding under this Act etc.” and then in sub-section (2) “Where any such proceeding relates to any property or part thereof under the management of a Receiver appointed by a Court, it shall be sufficient to implead the Receiver as party to the proceeding”.

5. S. 104 of the KLR. Act is thus seen to be a general provision appli­cable “to any proceeding under this Act”, directed, inter alia, against an estate managed by a Receiver. S. 31, however, is a section specifically providing for an application for determination of Fair Rent.

6. An application for determination of Fair Rent is one affecting radi­cally the interest of the parties concerned, by altering the quantum of rent which’ reflects the value of such interest. All applications, however, do not affect such interest to the same extent. For instance, an application under S. 26 for recovery of arrears of rent payable by the estate; and again, an application under S. 46 (2) accompanying a deposit of rent due to the estate. In such applications, the impleadment of the Receiver appears to be sufficient, because they have only a bearing on the caretaking aspect which sits squarely on the shoulders of the Receiver.

7. There is thus a conflict between S. 31 (relating to determination of Fair Rent) which enjoins that all persons interested shall be impleaded and S.104 which provides that “in any proceeding under this Act” relating inter alia to an estate managed by a Receiver, it shall be sufficient to implead the Receiver. In such cases, where there is a conflict or incompatibility between two provisions in the same enactment, the rule of construction to be followed is to reconcile” the two by treating the specific provision as an exception to the general provision and implementing the specific provision (AIR. 1928 Lahore 609 FB.)

8. There is also the further question whether a Receiver who is a creature of common law and Central statute (Act V of 1908) and who, as held in 1960 KIT. 68 is a mere caretaker, can be clothed with interest in property by a State enactment. Unless the Receiver is considered as being so clothed with such interest, the Receiver cannot commit the interests of the various parties to the adjudication. Hence, the relevant provision in S. 104 must be regarded as unavailing for this purpose, in a Constitutional sense.

9. For the above reasons, it appears to be fairly obvious, that for an adjudication of Fair Rent under S. 31 of the KLR. Act to be binding on the estate managed by a Receiver, and on the parties to the action, all the parties interested should be impleaded, besides the Receiver himself, who can only be a technical or proforma party.

TAKE COGNIZANCE OF

(P.S. John, Advocate, Kottayam)

The expression “take cognizance of” is not defined in the Code, civil or criminal, and the absence of a precise definition seems to have led to conflicting decisions by the various High Courts. The dictionary meaning of cognizance is, “judicial hearing of a matter; the power given by law to hear and decide controversies” (Webster’s New International Dictionary). Wharton’s Law Lexicon defines the term as “the hearing of a thing judicially” and according to the Centuary Dictionary the meaning is “to hear and determine”.

In 1955 KLT 553 Justice T.K. Joseph has sought to distinguish the expression “take cognizance” from “entertainment”. There the question arose whether a suit regarding service Inam land which under S. 8 of the Travancore CPC. had to be filed with government sanction could be taken cognizance of, with­out such sanction. The plaint was not accompanied by government sanction as required by S. 7 (a) of the Code. The question arose whether it could be said that the court had taken cognizance of the suit the moment it was instituted or whether ‘taking cognizance” would come only after the sanction was obtained. The learned Judge has referred to the decision in 28 TLR. 250 on this point. In that decision the learned Judges observed:

On the second point, we are disposed to follow the ruling in 8 Cal. 422 and hold! that the original defect did not prevent the suit from proceeding, after the government sanction required under S.7 of the CPC. was received. See also 17 Bom. 169 where it was held that a suit filed without a certificate could not be treated as bad ab initio. To ‘cognize’ is to hear and determine and not simply to entertain”.

So, until the sanction is obtained the court does not take cognizance of the matter. The plaint filed without sanction is nevertheless entertained by the court. So also, where a complaint is filed before a Magistrate in respect of a cognizable offence and the Magistrate forwards it under S. 156 (3) Cr. PC. to the police for investigation, the court may be said to take cognizance of the offence, only after the police report is received. Until that is done, it could be said that the Magistrate has entertained the complaint but has not taken cognizance of. This position has been upheld by the Supreme Court in Abhinandan Jha v. Dinesh Mishra ( (1967) 3 S. C R. 668). There, a complaint regarding a cognizable offence was forwarded by the Magistrate to the police for report. The learned Judes observed:-

“If the report is a charge sheet under S.170 it is open to the Magistrate to agree with it, and take cognizance of the offence under S.190(1)(b); or to take the view that the facts disclosed do not make out an offence and decline to take cognizance.”

So, taking cognizance or hearing of the thing judicially takes place only after the police report is received Before that it could be said that the complaint had been entertained; but not taken cognizance of.

A Division Bench of the Allahabad High Court in Badri Prasad Gupta v. Kripa Shankar (AIR 1967 All. 468) has further clarified this position using a figurative expression which is interesting reading. According to them as soon as a complaint is filed the case is ‘conceived’ and the case so conceived remains in the womb till the police report is received and it is brought forth either alive or still-born after the receipt of the police report. Just as in the Supreme Court decision quoted above, if the Magistrate agrees with the police report he can take cognizance of the offence; if he disagrees he can decline to take cognizance. So, from the mere fact that the Magistrate has entertained a complaint it cannot be said that he has taken cognizance of it. It is open to the Magistrate to postpone taking cognizance to a later date, i. e., after the police report is received.

Basing on the above Division Bench ruling of the Allahabad High Court, a Single Bench of the Kerala High court in 1968 KLT 57 has held that the Magistrate can be said to have taken cognizance, in a proceeding under S.156(3) of the Code of Criminal Procedure, only after the Police report is received. This decision as well as the decision of the Allahabad High court (cited supra) have been severely criticised and dissented from by a later Single Bench of this court in Madhavan Nair v. Gopala Panicker(1968 KLT. 547) following an earlier decis­ion of the Supreme Court, Jamuna Singh v. Bhadai Shah(ATR 1964 SC 1541). But that decision of the Supreme Court does not take us anywhere. That decision only says that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. This is simply begging the ques­tion. When does a court take cognizance of an offence? Is it when a complaint is filed or only when the Magistrate passes a judicial order on a complaint after the police report is received? In deciding this point the 1964 Supreme Court case cited supra, does not help us. A Magistrate can be said to take cognizance of an offence in the case of a private complaint, only when he hears the thing judicially and passes a judicial order; and when the complaint is forwarded to the police this can happen only after the police report is received. He applies his judicial mind and takes cognizance of the matter, only after the police report is received. As observed in 1968 KLT 57:

“When a complaint is sent by the Magistrate to the police it must be presumed that such a step was resorted to by the Magistrate for a further assurance about the truth of the complaint. Putting it differently, the Magistrate is not prepared to proceed on the complaint alone; but thinks it necessary that a police report also should be obtained.”

To me it appears on the strength of the authorities quoted above, that the Magistrate can be said to take cognizance of the offence complained of, only when he passes a judicial order on the complaint and proceeds to “hear and determine” and not when he gives an executive direction to the police for investigation and report. The decision reported in 1967-3 SCR 668 is a clear exposition of the law on this point and the Division Bench of the Allahabad High Court has only given expression to the same principles though in a figurative language. 1968 KLT 57, in the circumstances, must be held to have laid down the correct law.