Dharma Raj vs The State of Tamil Nadu

G. Rajasuria, J.—This petition has been filed to call for the records pertaining to the charges framed by the Mahila Court, Tirunelveli,

Tirunelveli District in S.C. No. 299 of 2006 and quash the same.

The facts giving rise to the filing of this petition as stood exposited from the records could be portrayed thus:

The police based on the complaint of one Boothangam, registered a case in Cr. No. 16 of 2006 for the offences punishable under Sections 376

read with 511, 377 read with 511, 354 I.P.C and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002, and took up

investigation and ultimately, laid the police report/charge sheet under Sections 376 read with 511, 377 read with 511, 354 I.P.C and Section 4 of

Tamil Nadu Prohibition of Harassment of Women Act, 2002. While the learned Magistrate taking on file the said police report and numbering it as

P.R.C. No. 14 of 2006 made endorsement to the effect as follows, ""The F.I.R and 173 Cr.P.C records filed in this case, prima facie, make a case

u/s 354, 376 read with 511, 377 read with 511, I.P.C and Section 4 of W.H. Act. Hence, take this case, for the above section on file"" and

thereafter by adhering to the procedure, committed the case to the Court of Session; before the said Court, the petitioner/accused filed a discharge

petition, which was dismissed and charges were framed by the Court for the offences punishable under Sections 376 read with 511, 377 read with

511, 354 I.P.C and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002.

Being aggrieved by and dissatisfied with all these proceedings, the present petition has been filed.

The learned Counsel for the petitioner would submit his arguments to the effect that the learned Magistrate was not at all empowered under the

Code of Criminal Procedure to take cognizance of the offences which are not specified in the police report. Even though the police report/charge

sheet did not refer to Section 376 read with 511 I.P.C, the learned Magistrate has chosen to take cognizance. It is also the grievance of the

petitioner as highlighted by the learned Counsel for the petitioner that there were lot of correspondences between the learned Magistrate and the

Mahila Court relating to the committal proceedings and the Mahila Court while dismissing the discharge petition highlighted that whatever be the

defect in the committal, those were not challenged earlier. According to the learned Counsel for the petitioner, once the mere cognizance taken by

the learned Magistrate at that time of numbering the case as P.R.C and taking it on file, the subsequent proceedings whatever might be and

whatever the reason cited for framing charges by the Mahila Court, would not stand and all those proceedings have no leg to stand.

The learned Government Advocate (Criminal Side) would submit that this case has been processed by the learned Magistrate and subsequently

by the Mahila Court properly.

The pertinent point which deserves consideration is as to whether the learned Magistrate was justified in numbering the case in P.R.C. No. 14 of

2006 by taking cognizance of the case u/s 376 read with Section 511, Section 377 read with Section 511, Section 354 I.P.C and Section 4 of

Tamil Nadu Prohibition of Harassment of Women Act, 2002, even though the offence u/s 376 read with 511 I.P.C was not incorporated in the

charge sheet.

The learned Counsel for the petitioner would rely on Section 209 Cr.P.C and argue that at the stage of Section 209 Cr.P.C, the learned

Magistrate would have to act mostly as a post office and nothing more and he cannot incorporate in the committal order fresh penal offences, over

and above what are found in the charge sheet filed by the police. This submission for several reasons set out hereunder, is not a correct view.

The appropriate provision of law is only Section 190(1)(b) Cr.P.C, under which the learned Magistrate is expected to take cognizance based

on the police report. At that time, it is the duty of the learned Magistrate to peruse all the statements of the witnesses and the documents annexed

with the police report and he is expected to independently arrive at the conclusion, de hors the penal provisions stated thereunder. The aforesaid

extract from the records would show that at the time of exercising his power u/s 190 Cr.P.C, the learned Magistrate took cognizance of those

additional penal provisions for the offences punishable under Sections 376 read with 511 and 377 read with 511 I.P.C and it is also obvious that

the victim lady narrated facts attracting such penal sections also.

Hence, in this view of the matter, ex facie and prima facie, the learned Magistrate''s action in taking cognizance for those offences additionally,

cannot be found fault with. My view is also supported by the dictum laid down by the Honourable Apex Court in State of Maharashtra Vs.

Sharadchandra Vinayak Dongre and Others, . An excerpt from it, would run thus:

The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on

the basis of the report and the material filed along with the police report, a case for taking cognizance has been made out or not. After applying his

mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken,

he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1)(b) Cr.P.C provides that a

Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one

for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he

should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it u/s

173(2) CrPC. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file

supplementary charge-sheet"", it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the

material placed before him along with the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the

Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge-sheet) was sufficient to take

cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to

investigate and place the facts and the evidence before the Magistrate.

In the instant case, the Chief Judicial Magistrate was obviously satisfied with the sufficiency of the material placed by the prosecution before him

with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of

process against the respondents. {emphasis added}

In this connection, the decision of the Honourable Apex Court in H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab,

Chandigarh Vs. State (Union Territory of Chandigarh), could fruitfully be referred to. An excerpt from it, would run thus:

In Abhinandan Jha and Others Vs. Dinesh Mishra, the question arose whether a Magistrate to whom a report u/s 173(1) had been submitted to

the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report

submitted by the police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the

Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the

accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make

an order to that effect u/s 156(3). If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he

could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that

the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate

could take cognisance under ''Section 190(1)(c)''. We do not have any doubt that the reference to Section 190(1)(c) was a mistake for ''Section

190(1)(b)''. That appears to be obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Section 190(1)(c) since at that time

Section 190(1)(c) included the words ''or suspicion'' and the Court had apparently taken the view that the Magistrate could take cognizance of the

offence not u/s 190(1)(b) as if on a police report but u/s 190(1)(c) as if ''on suspicion''. We do not agree with this submission. Section 190(1)(c)

was never intended to apply to cases where there was a police report u/s 173(1). We find it impossible to say that a Magistrate who takes

cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion

and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts.

The learned Counsel for the petitioner would submit that prima facie from the statements, no offences could be taken to have been committed

by the accused, because the complaint itself was lodged with a delay of seven days and that the medical report was not in favour of the

prosecution. I would like to record here that while exercising the power u/s 482 Cr.P.C, this Court cannot delve deep into these aspects. Perhaps,

he may have a proper defence before the trial Court and he is at liberty to canvass his case before the Court concerned.

The learned Magistrate in his committal order dated 31.07.2006, did not narrate in entirety as to what are all he did at the time of taking

cognizance of the case and numbering P.R.C. But, he would simply stated as though the police themselves have filed the police report/charge sheet

including the Sections 376 read with 511, 377 read with 511 I.P.C and as such, it is only a wrong way of expression which need not be given

undue importance, but in reality, the perusal of the records would show that he applied his mind at the time of taking cognizance and numbering the

P.R.C as detailed supra.

With the above observations, this petition is dismissed. Consequently, connected M.P.Nos. 1 and 2 of 2007 are also closed.