Babuddin alias Babuddin Ahmad and Others vs The State of Bihar and Others

I.P. Singh, J.—This application filed u/s 82 of the Code of Criminal Procedure, 1973 (in short ''the Code'') has been filed (sic)r quashing the order dated 24.8.2002 passed by Shri R.L. Sharma, Judicial Magistrate, Katihar in Complaint Case No. 1210 (sic) 2001, whereby he ordered for the issue of summons against the accused persons including the present two Petitioners.

From the prosecution case it appears that opposite party No. 2, Akhilesh Razak had filed a complaint petition on 13.8.2001 in the court of the Chief Judicial Magistrate Katihar which was registered as Complaint Case No. 1210 of 2001. It has been alleged by the Petitioners that on the receipt of this complaint petition the learned Chief Judicial Magistrate without examining the complainant (Opposite party No. 2) on solemn affirmation and even without taking Cognizance of the offences, by his order dated 13.8.2001 made over the case to the court of Shri Ram Padarath, Judicial Magistrate, 1st Class, Katihar under the provisions of Section 192(1) of the Code for enquiry and disposal. According to the Petitioners this order is wholly illegal.

It has been contended that on the receipt of this case the transferee Magistrate examined the complainant on solemn affirmation and also examined four witnesses in support of the case of the prosecution. Thereafter by his order dated 24.8.2002 he held that a case under Sections 147, 447, 323 and 392 of the Indian Penal Code was made out against the accused including the present Petitioners and ordered for issue of processes against them. It was further contended that the allegations made in the complaint petition are false and malafide. The parties have got land dispute as a result of which this false case has been instituted. The criminal proceeding against the present Petitioners is manifestly malafide and malicious as a result of land dispute between the parties. The prosecution witnesses examined by the learned Magistrate have not supported the case of the prosecution. The continuance of this criminal proceeding is an abuse of the process of the court. It was, therefore, prayed that the proceeding in Complaint Case No. 1210 of 2001 presently pending in the court of Shri R.L. Sharma, Judicial Magistrate 1st Class be set aside and the impugned order be quashed.

The parties have been heard at length with respect to various submissions made by them. On behalf of the Petitioners certain documents have been filed to show the land dispute between the parties. At the stage of taking cognizance and issuing of processes against the accused persons their defence proposed to be taken in course of trial is not required to be meticulously examined. Hence I will not proceed to do so presently.

The first ground taken on behalf of the Petitioners is that on the receipt of the complaint petition the learned Chief Judicial Magistrate without taking cognizance of the alleged offences and even without examining the complainant on oath made over the case to the court of Judicial Magistrate, 1st Class, Katihar for enquiry and disposal under the provisions of Section 192(1) of the Code. The Petitioners have strongly contended that this order passed by the learned Chief Judicial Magistrate was wholly illegal and against the provisions of Section 192(1) of the Code.

This takes up to the consideration of Section 192(1) of the Code which reads as follows:

Making over of cases to Magistrate.-(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

It does not speak of the examination of the complainant on solemn affirmation before passing of the order u/s 192(1) of the Code. In this connection a reference to Section 200 of the Code may also be made. It reads as follows:

Examination of Complaint.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;

Provided that when the complaint is made in writing the Magistrate need not examine the complaint and the witnesses,-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192;

Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses the latter Magistrate need not re-examine them.

From the aforesaid provisions of law it becomes perfectly clear that if at complaint petition is filed before the Chief Judicial Magistrate in all case he need not examine the complainant on solemn affirmation, specially in the case when he makes it over to another Magistrate for and inquiry or trial u/s 192 of that Code he need not examine the complainant on solemn affirmation if the complainant petition is made in writing. The law on this point appears to be quite clear and requires no further discussion. Of course in a situation like this the transferee Magistrate is required to examine the complainant and the witnesses on solemn affirmation. Hence I do not find any merit in the submission of the Petitioners that in variably on filing of a complaint petition the Chief Judicial Magistrate is obliged to (sic) amine the complainant on solemn affirmation.

It has further been submitted the learned Chief Judicial Magistrate had transferred the case to the Judicial Magistrate for enquiry and trial u/s 192 of the Code without taking cognizance of the offence. On this ground also it has been submitted that the procedure followed by the learned Chief Judicial Magistrate while passing the order u/s 192 of the Code is wholly illegal and, therefore, fit to be quashed. The copy of the order passed by the learned Chief Judicial Magistrate u/s 192 of the Code has not been placed on the record. From the impugned order passed by the learned Judicial Magistrate, however, it would appear that the complaint petition was filed under various sections of the Indian Penal Code before the learned Chief Judicial Magistrate, Katihar which he transferred to the learned Judicial Magistrate under the provisions of Section 192(1) of the Code for enquiry and disposal. Under this circumstance the question that would arise for consideration would be whether by this order the learned Chief Judicial Magistrate had already taken cognizance of the offence before sending the case to the learned Judicial Magistrate u/s 192(1) of the Code? As noticed above Section 192(1) of the Code clearly provides that any Chief Judicial Magistrate after taking cognizance of the offence (emphasis supplied) can make over the cases to a Magistrate for enquiry or trial under the provisions of Section 192 of the Code. On behalf of the opposite party it has been submitted that from the fact that the learned Chief Judicial Magistrate had made over the case to another Magistrate under the provisions of Section 192 of the Code which clearly goes to show that before doing so he had already taken cognizance of the offence.

This takes us to the consideration of the question what is meant by "taking cognizance" and under law when it take place? At the outset it may be stated that the word "cognizance" has nowhere been defined in the Code. The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. In this connection a reference may be made to the observation made by Hon''ble Supreme Court in the case of R.R. Chari Vs. The State of Uttar Pradesh, . In particular I will refer to the observations made by Das Gupta, J. speaking for the bench which are as follows:

What is taking cognizance has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence u/s 190(1)(a), Code of Criminal Procedure be must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap., proceeding u/s 200 and thereafter sending it for inquiry and report u/s 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chap, but for taking action of some other kind e.g. ordering investigation u/s 156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.

A similar view has been taken by the Hon''ble Supreme Court in the case of Gopal Das Sindhi and Ors. v. State of Assam and Anr. AIR 1961 S.C. 986. In the case of Jamuna Singh and Others Vs. Bhadai Sah, the Hon''ble Supreme Court has observed as follows:

It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offence mentioned in the complaint. When however he applied his mind not for such purpose but for the purposes of ordering investigation u/s 156(3) or issues a search warrant for the purpose of investigation be cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari v. State of U.P. 1951 S.C. 207 and again in Gopal Das v. State of Assam AIR 1961 S.C. 986.

From the aforesaid decisions it becomes clear that one the Magistrate receives a complaint petition and decides to proceed under the subsequent sections of the Code he is said to have taken cognizance of the offence even if he dies not mention in so many words that he has taken cognizance. The word cognizance merely means being aware of and when used in a reference to a court or a Judge will mean "to take notice of judicially" as held in the case Ajit Kumar Palit Vs. State of West Bengal, . In this very decision it has been held that taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applied his mind to the suspected commission of an offence. This view also finds support from the decision in the case of Darshan Singh Ram Kishan Vs. The State of Maharashtra, In the case of Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi and Ors. 1997 Cri L.J. 212 S.C. it has been held that taking of cognizance of an offence would include the intention of the Magistrate of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purpose. Earlier in the case of Anil Saran Vs. State of Bihar and another, it has been held that cognizance of the offence takes place when the Magistrate takes judicial notice of the offence. Earlier in the case of Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, it has been clearly laid down that obviously it is only when a Magistrate applies his mind for the purpose of proceeding u/s 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or u/s 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and, therefore, had taken cognizance. The same view has been reaffirmed by the Hon''ble Supreme Court in a subsequent decision in the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others,

It is well settled that taking of cognizance is a judicial function as held in the case of State of Uttar Pradesh Vs. Lakshmi Brahman and Another, In the case of Tula Ram and Others Vs. Kishore Singh, it has been held that the Magistrate takes cognizance once makes himself fully aware of the allegations made in the complaint Petitioner and decides to test the validity of such allegations.

Applying the aforesaid proposition of law to the present case it would appear that the learned Chief Judicial Magistrate had sent the case to the learned Judicial Magistrate for enquiry and trial under the provision of Section 192 of the Code. From this it would become perfectly clear to me that on the receipt of the complaint petition the learned Chief Judicial Magistrate had perused the same and had decided make over the case for enquiry and trial another Judicial Magistrate. This will clear mean that after perusal of the complete petition the learned Chief Judicial Magistrate had decided to proceed under subsequent sections of the Code (Chapter XVI of the New Code) and, therefore, it can be safely be said that he had already taken cognizance of the offence. Hence I do not find any merit in this submission of the learned Counsel.

From the impugned order it appears that the learned Magistrate holding the enquiry u/s 192 of the Code had examined four witnesses and on the basis of their evidences he has decided that a prima facie case against the Petitioners was made out. He accordingly ordered for the issue of the processes against them. It may be stated here that at this stage meticulously examination of the evidence on the record is not required and the only thing to be found that whether a |prima facie case has been made out or not. This is not the stage to find out whether on the basis of the evidence on record the case will end in conviction or acquittal. Hence I do not find any force in this submission of the learned Counsel for the Petitioners also.

From the detailed discussions made above it becomes clear that there is no merit in this application. It is, accordingly, dismissed. But under the circumstances of this case there will be no order for cost.