C.B.I. (A.H.D.), Patna vs Lalu Prasad and Others

B.P. Singh, J.—The Special Judge (C.B.I.), Patna before whom Special Case No. 65 of 1996 is pending, has made a reference to this Court u/s 395of the Code of Criminal Procedure, referring for the decision of this Court two questions of law, which, in his opinion, arose for consideration, and which were not covered by any direct decision on the point. The two questions of law which he has formulated for the consideration of this Court are : (1) Whether the proceeding in between filing of chargesheet and commencement of trial in a warrant case is an enquiry?

(2) Whether the under trial can be remanded to custody after submission of chargesheet even before taking cognizance during such enquiry?

Before proceeding to express my opinion on the questions of law referred to his Court, a few facts which are not in dispute may be noticed. On the basis of a first information report a case was being investigated by the Central Bureau of Investigation and some of the accused were remanded to judicial custody pending investigation. Some of the accused are political figures, and one of them happened to be the Chief Minister of the State of Bihar at the relevant time. There are others who were at the relevant time Union Minister or State Minister. It is also not in dispute that the Special Judge, who is to try the case, is a Judicial Officer of the rank of Additional District and Sessions Judge. The procedure to be followed in the case is the one prescribed for trial of warrant cases by Magistrates. The sanction of the Governor of Bihar for the prosecution of some of the accused was sought for, but the same has not so far been granted. After completion of investigation, chargesheet has been submitted in the case, but the Special Judge has not yet taken cognizance. 2. It was urged before us on behalf of the accused that in the absence of an order taking cognizance of the offences alleged to have been committed by them, the Special Judge has no jurisdiction to order their further remand to judicial custody. Their submission is that the charge sheet having been filed on the 90th day of their detention, any further remand under the provision of section 167of the Code is not permissible. The provision of section 209of the Code has no application to this case as the same applies only to offence triable exclusively by the Court of Session Section 309of the Code under which a remand may be ordered, pending disposal of any enquiry or trial, is also of no help to the prosecution since the power of remand u/s 309of the Code can be exercised only in a case where a trial has commenced and is pending or in a case where, after taking cognizance, an enquiry is pending before the Court. It was, therefore, submitted before the learned Special Judge, and also before us, that since the power of remand u/s 167 (2)of the Code cannot be ex-exercised as the investigation is complete and the period of ninety days has run out, and section 209has no application to this case, the only section under which the accused may be remanded is section 309of the Code, which permits a Court to remand an accused in custody only if after taking cognizance an enquiry is pending before the court. It has, therefore, been submitted that unless the Special Judge takes cognizance of the offence, he cannot exercise the power of remand u/s 309(2) of the Code.

This takes us to a consideration of the scheme envisaged by the Code of Criminal Procedure in this regard. Section 190of the Code provides that the competent Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts, or upon information received from any person other than a Police Officers or upon his own knowledge that such offence has been committed. Section 192of the Code empowers the Chief Judicial Magistrate to make over the case for inquiry or trial to any competent Magistrate subordinate to him, after taking cognizance of an offence. The Code does not define the expression ''cognizance'', nor do the provisions of the Code throw any light on the question as to what is meant by ''taking cognizance''. However, the decisions of the Courts, including the Supreme Court, have explained what is meant by ''taking cognizance''. In substance it amounts to an application of mind. It does not involve any formal action, but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether he takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. The initiation of a proceeding against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in section 190of the Code. It is not necessary for the Magistrate taking cognizance to say in express words that he has taken cognizance, though as a matter of practice the Magistrates do at times record in the order sheet that they have taken cognizance. The taking of cognizance may be inferred from the fact that after applying his mind to the material which discloses the commission of an offence, the Magistrate does not reject the complaint, rather proceeds to take further step in accordance with the procedure prescribed by law. It is, however, imperative that before taking cognizance of an offence and proceeding to the next stage of the proceeding, the concerned magistrate must satisfy himself that he is not prohibited from taking cognizance on account of the fact that the complaint, or the report, has not been made by the person who alone is competent in law to lodge such complaint or make such report, and further whether any law requires the prior sanction of any prescribed authority before cognizance can be taken. It, therefore, becomes necessary for the Magistrate to apply his mind to the matters enumerated in sections 195 to 199of the Code before taking cognizance. These provisions of the Code are in fact a limitation on the unfettered power of the Magistrate to take cognizance u/s 190. If the Magistrate is satisfied that the complaint, or the police report, or the information received, discloses the commission of an offence, he must take cognizance of the offence if he is not debarred from doing so by the provisions of sections 195 to 199of the Code. He may take cognizance by recording so in express terms, or he may be deemed to have taken cognizance of the offence by reason of his proceeding to the next stage in the proceeding. It is important to bear in mind the distinction between taking of cognizance and issuance of process. Cognizance is of the offence which appears to have been committed, while issuance of process involves a consideration of the material on record for ascertaining who are the persons who may be suspected to have committed such an offence.

In the instant case, we are concerned with the taking of cognizance upon a police report. It is open to the Court to take cognizance of the offence disclosed in the police report, if he is satisfied that the materials in the report disclose the commission of such offence. If on an examination of the report he is satisfied that no offence is disclosed, he may refuse to take cognizance. However, before taking cognizance he must satisfy himself that he is not prevented from taking cognizance on account of any of the matters mentioned in sections 195 to 199of the Code.

After taking cognizance, the Chief Judicial Magistrate may make over the case for enquiry or trial to any competent Magistrate subordinate to him. The Magistrate may after holding an enquiry issue process as provided in section 204of the Code. Proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of the police report, the first information report, the statements recorded under sub-section (3) of section 161of the Code of Criminal Procedure, the confessions and statements, if any, recorded u/s 164, and any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173.

After the necessary documents are supplied to the accused, and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, section 209requires such a Magistrate before whom the accused appears or is brought, to commit the case to the Court of Session, and subject to the provisions of the Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial. In the instant case, as rightly submitted by counsel for the parties, section 209of the Code attracted since the case is to be tried by following the procedure prescribed in Chapter XIX of the Code for the trial of warrant cases by Magistrates.

Section 238of the Code provides that in a warrant case instituted on a police report, when the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that the provisions of section 207has been complied with u/s 239of the Code if the Magistrate upon considering the police report and the documents sent with it u/s 273of the Code, and making such examination of the accused as he thinks necessary, and after affording an opportunity of hearing to the prosecution and the accused, may discharge the accused if he finds the charge against him to be groundless. The Magistrate is, however, obliged to record his reasons for so doing. If, on the other hand, the Magistrate is of the opinion that the accused has committed an offence triable as a warrant case under Chapter XIX which he is competent to try, and which in his opinion, could be adequately punished by him, he shall frame charge against the accused, which must be read over and explained to the accused who should be asked whether he pleads guilty of the offence charged or claims to be tried. u/s 241, if the accused pleads guilty he may be convicted on such plea. However, if he claims to be tried, the Magistrate has to proceed to the next stage in fixing a date for the examination of witnesses, and must proceed to take all such evidence as may be produced in support of the prosecution on the date so fixed. Thereafter the accused shall be called to enter upon his defence and produce his evidence.

The moot question which falls for consideration is whether without taking cognizance of the offence an accused in a warrant case instituted on a police report can be remanded to custody u/s 309 (2) of the Code. Section 309 (2) of the Code reads as follows :

Power to postpone or adjourn proceedings. - (1) x x x x

(2) If the Court, after taking cognizance of offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.

Sub-section (2) of section 309in clear terms provides that if the Court "after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same for such time as it considers reasonable, and may by a warrant remand the accused, if in custody. A mere reading of the section makes it abundantly clear that power of remand can be exercised by the Court after taking cognizance in a pending enquiry or trial. If the trial has commenced and the Court finds it necessary or advisable to adjourn the same, it may record its reasons for doing so and remand the accused, if in custody. This power can be exercised by a court before which the trial has commenced or is pending.

Similarly if after taking cognizance, the Magistrate is required to hold an enquiry, and such enquiry has to be postponed or adjourned for any good reason, the remand of an accused in custody pending the enquiry is permissible under sub-section (2) of section 309. It, therefore, follows that Court is not authorised to remand an accused to custody pending enquiry, unless the enquiry has commenced after cognizance of the offence has been taken by the competent Magistrate or Court. In every case where the trial has commenced, it may be assumed that cognizance has been taken. However, such an assumption cannot be made in the case of an enquiry. If the pending enquiry is one which has commenced after taking of cognizance by the Court or Magistrate, in such enquiry the Magistrate or the Court concerned will have power to remand the accused, if for any good reason the enquiry is to be postponed or adjourned. The scheme of the Code appears to be that before taking of cognizance, the court has power to remand the accused only in a case where a trial has commenced or an enquiry is pending after taking of cognizance, and it becomes necessary to adjourn or postpone such trial or enquiry. Having regard to the clear words of section 309, there is no escape from the conclusion that without taking cognizance, the Magistrate or the Court is not empowered to remand an accused if in such custody u/s 309(2) of the Code.

It is significant that the words "after taking cognizance of an offence" have been inserted in sub-section (2) of section 309of the Code of 1973. In the old Code of 1898 these words did not find place in the corresponding provision, namely, section 344. Under the old Code courts took the view that the Court had power to remand an accused to jail custody even in cases in which the process of investigation and collection of evidence was still going on i.e., at a stage prior to the commencement of enquiry or trial (see Gouri Shankar Jha Vs. The State of Bihar and Others, ). The legislature in its wisdom has brought about a change by inserting the words "after taking cognizance of an offence", thereby clarifying that a remand u/s 309 (2) can be ordered only in a pending enquiry after cognizance of offence is taken, and not at any earlier stage, such as the stage of investigation, for which separate provision is made in section 167of the Code. Without doing violence to the express language of the section, it would not be possible to hold that an accused may be remanded to custody in a pending enquiry, even before commencement of the proceeding before the Court or Magistrate concerned.

Counsel for the C. B. I. submitted that there are binding precedents of this Court, as also of the Supreme Court, holding the view that an accused may be remanded to custody u/s 309 (2) of the Code even if no cognizance is taken by the Court or Magistrate concerned, provided the proceeding pending before the Court or Magistrate is an enquiry within the meaning of that expression under the Code. I have carefully considered the decisions relied upon, but I find that the decisions do not lay down the law that taking of cognizance is not precondition to the exercise of power of remand of an accused to custody u/s 309 (2) of the Code.

The sheet anchor of the prosecution case is the decision of the Supreme Court in State of U.P. vs. Lakshmi Brahman (AIR 1983 SC 439). The respondents in that case were suspected of having committed an offence punishable with death or imprisonment for life u/s 302I.P.C. Both the accused had surrendered before the Magistrate on November 2, 1974 and were taken into custody. The investigation was then in progress, but the investigating officer failed to submit the chargesheet against them within a period of 60 days as contemplated by sub-section (2) of section 167of the Code prior to its amendment. The chargesheet was ultimately submitted on February 5, 1975. The accused moved an application u/s 439of the Code invoking the power of the High Court to grant bail. The High Court was of the opinion that after the chargesheet had been submitted, u/s 170Cr. PC. the Magistrate had no jurisdiction to authorise the detention of an accused in custody u/s 167Cr. P.C. and, therefore, the authority to remand the accused to custody after the chargesheet had been submitted had to be gathered from other provisions of the Code. The High Court held that since after enactment of the Code of Criminal Procedure, 1973 the proceeding before the Magistrate under Chapter XVI of the Code could not be an enquiry within the meaning of expression in section 2 (g) and, therefore, section 209would not confer power on the Magistrate to commit the accused to custody. It, therefore, held that in view of the provision contained in section 207read with section 209of the Code, the Magistrate had to commit the accused forthwith to the Court of Session and only after the order of commitment is made, the Magistrate will have power to remand the accused to the custody during and until the conclusion of the trial. Accordingly, it was held that the Magistrate had no jurisdiction, power or authority to remand the accused after chargesheet was submitted and before the remand order was made. On such findings the High Court directed that the accused be released on bail.

The Supreme Court held that the High Court was right in holding that the jurisdiction to grant bail, in case investigation is not completed within the prescribed time limit, vests in the Magistrate if the accused applies and is prepared to furnish bail. Section 167envisages a stage when a suspect is arrested and investigation is not completed within the prescribed period. The investigation, would come to an end the moment a charge is submitted as required u/s 170unless the Magistrate directed further investigation. The Court then considered the question as to how the Magistrate is to deal with the accused forwarded to him with the police report u/s 170and the police report discloses an offence exclusively triable by the Court of Session. The Court made a passing reference to the provision contained in section 190which provides for cognizance of an offence by Magistrate, one such mode of taking cognizance of an offence being upon a police report if the facts disclosed an offence. It noticed that section 204provides for issue of process while section 207provides that in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish the accused, free of cost a copy of each of the documents set out therein. Section 209confers power on the Magistrate to commit the accused to the Court of Session when the offence disclosed in the police report is triable exclusively by it. The court then considered the scheme of the Code. It held that if u/s 207the Magistrate performed a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an enquiry for the purpose of satisfying himself that section 207has been complied with. That satisfaction is to be judicial satisfaction. It is not a trial, but something other than the trial and being judicial function it would necessarily be an enquiry. The making of an order committing the accused to the Court of Session will equally be a stage in enquiry and the enquiry culminates in making the order of commitment. Thereafter their Lordships observed :

...Thus, from the time the accused appears or is produced before the Magistrate with the police report u/s 170and the Magistrate proceeds to enquire whether Sec. 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Sec. 2 (g) of the Code. We find it difficult to agree with the High Court that the function discharged by the Magistrate under Sec. 207 is something other than a judicial function and while discharging the function the Magistrate is not holding an inquiry as contemplated by the Code. If the Magistrate is not holding the inquiry obviously Sec. 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete.

The judgment of the Supreme Court in Lakshmi Brahman does not lay down the proposition that before remanding an accused under sub-section (2) of section 309viz. "if the Court after taking cognizance of an offence" were noticed by the Supreme Court. In paragraph No. 12 of the judgment the Court observed that u/s 170the investigation officer is obliged to submit the police report if in course of investigation sufficient evidence or reasonable ground is made out for the trial or for commitment of trial of the accused, the Magistrate empowered to take cognizance of the offence upon a police report. Thereafter it was observed in paragraph 12 :

On this report being submitted the Magistrate takes cognizance of the offence disclosed in investigation as envisaged by Sec. 190. It is indisputable that taking cognizance of an offence under Sec. 190 is a purely judicial function subject to judicial review by court of appeal or revision to which the Magistrate is subject. Cognizance of an offence even if exclusively triable by the Court of Session has to be taken by the Magistrate because Section 193precludes it from taking cognizance of any offence when it provides that no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the accused has been committed by the Magistrate under the Code. Thus even in case of an offence exclusively triable by the Court of Session, the Police report on completion of investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial. It is the Magistrate who takes cognizance of the offence and not the Court of Session though the case is one exclusively triable by the latter." It is, therefore, apparent that the Supreme Court proceeded on the basis that the Magistrate before whom the police report u/s 170of the Code is submitted, has to take cognizance and not the Sessions Judge even If the offence Is exclusively triable by the Court of Session. It is only thereafter the Magistrate is to pass some order for the further detention of the accused, subject to the provisions contained in Chapter XXXIII as to bail and bonds. Since the Magistrate before whom the police report u/s 170has been submitted proceeds to enquire whether section 207has been complied with, and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an enquiry. In any stage of enquiry, and pending such enquiry, sub-section (2) of section 309authorises the Court to remand the accused to custody.

As I understand the judgment, it proceeds on the assumption that once the Magistrate proceeds to the stage of enquiry under sections 207and 209of the Code, he must be deemed to have taken cognizance of the offence. The decision is an authority for the proposition that from the time the accused appears, or is produced before the Magistrate with the police report u/s 170, and the Magistrate proceeds to enquire whether section 207has been complied with, and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an enquiry as contemplated by section 2 (g)of the Code. Section 309would, therefore, enable the Magistrate to remand the accused to the custody till the enquiry to be made is complete. No argument was advanced In the case that since the Magistrate had not taken cognizance, he could not remand the accused to the custody. Obviously, therefore, the Court was not required to go into that question, and there is nothing in the judgment to support the submission that taking of cognizance is not a precondition to the exercise of power of remand u/s 309 (2) of the Code. On the contrary, the High Court as well as the Supreme Court proceeded on the basis that the Magistrate had taken cognizance of the offence, and only after doing so proceeded to discharge his function under sections 207and 209of the Code. In the judgment of the Supreme Court, a passage from the High Court''s judgment is quoted, the relevant part of which made as follows :

Sec. 209" of the Code merely required the Magistrate, taking cognizance of an offence on the basis of a police report, to look into the report and if he finds that the case is triable exclusively by Court of Session to make an order committing the case to Sessions. Since in such a case the Magistrate taking cognizance of the offence is not required to conduct any proceeding for ascertaining or verifying facts with a view to commit the case to Sessions, it can not be said that the provisions contained in Secs. 204, 207 to 209 of the Code contemplate an inquiry under the Code.

This would clearly indicate that High Court also proceeded on the basis that cognizance must be taken before the Magistrate commits the accused to the Court of Session to stand this trial. Similarly the observations of the Supreme Court in paragraph No. 12 of the report, which has been quoted earlier in this judgment, also reinforces the legal position that only after taking cognizance the Magistrate can discharge his judicial function under sections 207and 209of the Code. I must, therefore, hold that the judgment in Lakshmi Brahman''s case proceeds on the basis that the Magistrate had taken cognizance before proceeding to the stage of sections 207and 209of the Code which contemplated an enquiry. The Court did not hold that the taking of cognizance was not a precondition to the exercise of power of remand u/s 309 (2) of the Code. Indeed such a question was not even raised before the Supreme Court. The judgment therefore, does not support the contention of the prosecution that even without taking cognizance, an accused may be remanded to custody u/s 309 (2) of the Code pending an enquiry.

The next decision on which reliance has been placed in Full Bench decision of the Patna High Court, reported in 1984 CLJl 1412 : 1984 PLJR 701 (Rabindra Rai vs. State of Bihar). The decision in this case follows the judgment of the Supreme Court in Lakshmi Braman''s case. Their Lordships, however, in paragraph No. 6 of the judgment considered what is meant by taking cognizance and observed that to establish in a particular case that cognizance has been taken, any such order saying that cognizance has been taken, is not a must. Their Lordships held following the decision of the Supreme Court in Lakshmi Brahman as follows :

In view of the clear enunciation of the position that an inquiry within the meaning of S. 2 (g) of the Code shall deem to have commenced since the submission of the police report, and shall continue till an order of commitment is made under S. 209, it is difficult for this Court to hold that such inquiry shall commence only after a formal order is passed by the Magistrate saying that cognizance has been taken. Once it is held that inquiry commences since the submission of the police report-chargesheet there should not be any difficulty in holding that the Magistrate has during that period power to remand the accused in terms of sub-sec. (2) of S. 309 of the Code.

The full Bench judgment of this Court also proceeds on the assumption that the moment a police report is received u/s 170of the Code of Criminal Procedure in a case exclusively triable by a Court of Session, the next stage of enquiry under sections 207and 209is reached, and the Magistrate must proceed to enquire whether section 207has been complied with and then proceed to commit the accused to the Court of Session. Pending this enquiry he is authorised to remand the accused to custody under sub-section (2) of section 309of the Code. The decision proceeds on the basis that there is no need for the Magistrate to pass an express order taking cognizance, and the moment the Court proceeds to the next stage in the proceeding cognizance is deemed to have been taken. This also becomes clear from the observation of the Court in Paragraph No. 9 of the report which reads as follows:

I am of the opinion that it cannot be held that unless a formal order saying that cognizance has been taken is passed the day the charge-sheet is received, sub-sec. (2) of S. 309 of the Code is not attracted. I am also of the view that since the submission of the charge-sheet and before passing an order under S. 209 committing the accused to Court of Session, an inquiry is pending before the Magistrate during which period he can exercise the power under sub-sec. (2) S. 309 of the Code.

Counsel for the prosecution also relied upon a Full Bench decision of this Court reported in 1978 Criminal Law Journal 1074. The Full Bench in Rabindra Rai'' case quoted with approval a passage appearing in the judgment of one of the learned Judges in this case, which reads thus :

During the period when the Magistrate receives charge-sheet from the police and takes cognizance and till he passes an order under S. 209 of the Code, the matter is pending Inquiry before him for ascertaining whether the offence made out on the evidence recorded by the police is exclusively triable by the Court of Session or not.

This was obviously a case where the Magistrate after receiving the chargesheet took cognizance and thereafter enquiry u/s 209of the Code was pending before him.

I may at this stage notice a recent decision of the Supreme Court. reported in Raj Kishore Prasad Vs. State of Bihar and another, , which has differed from the view taken by the Court earlier in Lakshmi Brahman''s case. The Court observed :

From the text of the judgment it is clear that the Statement of Objects and Reasons" reflecting legislative policy as to the quality of ''inquiry'' was not laid before this Court as well as the report of the 41st Law Commission recommending abolishing of ''enquiry'' before the Magistrate, which was responsible for the charge. Had the Bench been apprised of the historical perspective, we have no doubt in our mind that the comprehension of the word ''inquiry'' as meant for Section 209Cr. P.C. would have been the same as gathered by us on becoming cognizant of the legislative scheme for early disposal of cases tribal by a Court of Session.

This change of view, however, will not make any difference to the result of the instant case. Whether the proceeding contemplated under sections 208and 209of the Code is an enquiry or not, the moment a Magistrate receives a police report u/s 170read with section 190of the Code, and proceeds to perform his judicial functions under sections 207and 209of the Code, he must be deemed to have taken cognizance of the offence on the basis of the police report. The case with which we are concerned, is not a sessions case, but a case triable as a warrant case. In such a case also the moment a police report is received, the Special Judge must take cognizance of the offence and then proceed to consider the matters relevant to sections 238 to 240of the Code. If he does not take cognizance, even if the next stage of the proceeding be an enquiry, he cannot, in the absence of taking cognizance, remand an accused under sub-section (2) of section 309of the Code. The second question formulated by the Special Judge assumes as a fact that cognizance has not been taken by the Court. If such be the position, the Court cannot remand an accused to custody u/s 309 (2) of the Code without taking cognizance of the offence on the basis of police report submitted after completion of investigation.

I now proceed to consider the first question formulated for the decision of this Court, namely, whether the proceeding in between filing of chargesheet and commencement of trial in a warrant case is an enquiry.

Section 170of the Code provides that if upon an investigation it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial. The police report u/s 170is commonly known as the charge-sheet. Once the police report is received by the Magistrate in a warrant case instituted on a police report, and the accused appears or is brought before a Magistrate at the commencement of the trial, u/s 238of the Code the Magistrate has to satisfy himself that he has complied with the provision of section 207. If upon considering the police report and the documents sent with it u/s 173, and making such examination. If any, of the accused, as the Magistrate thinks necessary, and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless he shall discharge the accused and record his reasons for so doing. On the other hand, if on such consideration he is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which he is competent to try and which in his opinion could be adequately punished by him, he must proceed to frame charge against the accused. The trial commences in a warrant case instituted on police report when the accused appears or is brought before a Magistrate, after a police report u/s 170read with section 173of the Code is submitted. Between the submission of the chargesheet and the commencement of the trial u/s 238of the Code, there is no intervening proceeding which can be said to be an enquiry. There appears to be substance in the submission urged on behalf of the accused that once a police report is received by the Magistrate upon completion of investigation that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, the Magistrate must act u/s 190of the Code and proceed to take cognizance of the offence, unless for any reason he finds himself unable to do so. The taking of cognizance, though a judicial act, is not an enquiry within the meaning of section 2 (g) of the Code. After taking cognizance, the Magistrate must commence the trial and apply his mind to the requirements of section 238. There is, therefore, nothing between filing of chargesheet and commencement of trial which can be said to be an enquiry.

Counsel for the C.B.I. submitted that after the chargesheet is submitted, the Magistrate has to consider whether the material disclosed is sufficient to take cognizance, and if so, against whom he has to examine the case diary and the accompanying documents. The consideration of all this amounts to an enquiry within the meaning of that expression u/s 2(g) of the Code.

The submission is misconceived. At the stage when a Magistrate is required to take cognizance, there is no enquiry. He has to apply his mind to the material placed before him and take cognizance of the offence. Till he does so, no case is instituted before him. He may thereafter issue process and summon the accused for trial, if he is not already in custody. The sufficiency of material to frame charge has to be considered by him only after the trial under Chapter XIX commences. The proceeding u/s 190, cannot be said to be an enquiry under the Code. It is only after cognizance is taken that an inquiry may be made for the purpose of issuance of process. If for any reason, the Court or Magistrate is not able to take cognizance of the offence, it cannot proceed to the stage of trial envisaged by section 238of the Code. Having considered all aspects of the matter, the reference is answered as follows :

(1) After a police report u/s 170Is received by the Special Judge u/s 173of the Code, he must proceed u/s 190of the Code and take cognizance, or refuse to take cognizance, having regard to the provisions of sections 195 to 199of the Code. If he decides not to take cognizance, no case is instituted before him on a police report. If he decides to take cognizance and the accused appears before him, or is produced before him, the stage of commencement of trial is reached. He must then, as required by section 238satisfy himself that the provisions of section 207have been complied with. After he is satisfied that section 207is complied with, he must proceed to consider the relevant material required to be placed before him and either discharge the accused u/s 239of the Code or proceed to frame charge u/s 240. After he decides to frame charge, he must proceed with the trial of the accused in accordance with the relevant provision of Chapter XIX of the Code prescribing the procedure for trial of warrant cases by Magistrates.

The proceeding u/s 190of the Code is a judicial proceeding, but is not an enquiry within the meaning of that expression in the Code. The proceeding u/s 238is not an enquiry in view of the judgment of the Supreme Court in Raj Kishore Prasad Vs. State of Bihar and another, . The stage under sections 239and 240is reached after institution of a case on police report and after appearance of the accused and is therefore a proceeding in the course of trial, and not an enquiry.

(2) After a police report u/s 170of the Code is received by the Special Judge u/s 173of the Code, no case can be said to be instituted before him on a police report unless he takes cognizance of the offence mentioned in such report. If he is unable to take cognizance u/s 190of the Code for any reason whatsoever, or refuses to take cognizance, he will have no authority to remand the accused, if in custody, in view of the clear language of Section 309 (2) of the Code which makes the taking of cognizance, condition precedent for the exercise of power of remand in a pending inquiry or trial.