Dr. R.P.M. Sharma vs Man Mohan Mathur and Another

B.N. Dash, J.—The petitioner is the Superintendent of Police Kalahandi, Bhawanipatna and he has filed the present petition u/s 482 of the Code of Criminal Procedure, 1973 (in short, "the Code'') for quashing the order dated 30-10-1992 taking cognizance as also the entire criminal proceeding in ICC No. 61 of 1992 on the file of the SD JM. Bhawanipatna in which the order taking cognizance was passed.

The opp. party No. 1 Sri Man Mohan Mathur is a member of the Rajya Sabha and he filed the aforesaid complaint case against the petitioner alleging that on 19-10-1992 at about 8 A. M. while he along with one Shri Bhupinder Singh and others were discussing about the starvation death in the district of Kalahandi with Shri J. B. Patnaik, the P. C. C. (I) President, some police officials came and took away Shri Singh after arresting him. Having failed in his attempt to contact the petitioner over phone to know the reason of the arrest of Shri Singh, the opp. party No. 1 went to Bhawanipatna police station, but no police ofiicial could tell the reason for the arrest. So while he was coming out of the police station the Police officials did not permit him to go outside. It was also alleged that at about 3-30 P. M. the petitioner came to the police station in a violent mood and when opp. party No. 1 wanted to know the cause of the arrest of Shri Singh the petitioner became furious and defamed him by saying "SALA HARAMKHOR NETAGIRI DEKHATA HOY YADA M. P. GIRI KARNESE HAT, PYER TOD DENGE. SALE KO UNDAR DAL DO", It was further alleged that on account of use of such unparliamentary words there was altercation between the parties and in course of the same the petitioner gave a push to the chest of the opp. papty No. 1 and after he fell down on the ground the petitioner gave a kick blow by his shoe causing injury on his back and bleeding injuries on his left knee. The petitioner was also threatened with dire consequences in the event of hi.; approaching any forum for such occurrence. The initial statement of opp. party No. 1 was recorded on the next day i.e. 20-10-1992 and, by the impugned order, the learned SDJM took cognizance of the offences under Sections 294, 323, 342 and 506, IPC holding that no sanction of the State Government u/s 197 of the Code was required and adjourned the case to 3-12-1992 for enquiry u/s 202 of the Code with direction to the opp. party No. 1 to produce his witnesses on that day.

It is stated in the instant petition, inter alia, that for an incident that took place on 4-10-1992 in which many policemen sustained severe bleeding injuries two cases were registered at Bhawanipatna Police Station; the first being P.S. Case No. 173 under Secs 147, 148, 294, 506, 336, 355, 332 read with Sac. 149, IPC and also u/s 7 of the Criminal Law Amendment Act and P.S. Case No. 174 under Sections 147, 148, 294, 506, 336, 355, 332 read with Sac. 149, 337 and 506 IPC and also u/s 27 of the Arms Act. In course of investigation, the witnesses implicated the opp. party No. 1 as well as Shri Singh in those cases only on 17-10-1992 necessitating their arrest. On 19-10-1992 at 9. 20 a. m. the Circle Inspector of police arrested opp. party No. 1 as well as. Shri Singh and requested them to go to the police station in the police vehicle but they refused and as desired by them as well as their supporters they had to be brought on foot after being handcuffed and roped. It is also stated that after being brought to the police station, the Dy Supdt of Police (Accts.) who was inve- stigating into the case requested opp. party No. 1 and Shri Singh to go to the Court but they declined and as such, the investigating officer brought this fact to the notice of the Magistrate in writing through the Addl. Public Prosecutor, Kalahandi, Bhawanipatna at 1.30 p.m. after noting such fact in Bhawanipana Town P. S. Station Diary entry No 603 dated 19-10-1992. It is further stated that since opp. party No. 1 was arrested in connection with P.S. Case No. \\ 74 on 4-10 1992 a wireless telegraph message was sent to the Secretary General, Rajya Sabha, South Block, New Delhi at 1 P M. intitmating such arrest and the said message was received by the addressee at 3.20 p. m. on the very same day. It is also stated that the opp. party No. 1 did not complain before the SDJM about the alleged misbehaviour and assault by the petitioner when he was first produced before him, that the opinion of the medical officer examining the opp. party No. 1 was conflicting with his assertions and there was delay in filing the complaint petition.

Mr. Palit. the learned counsel for the petitioner has raised two contentions, the first being that the allegations contained in the complaint petition are so absurd and improbaola that the learned SDJM should have immediately dropped the complaint petition without taking cognizance, and the second being that the impugned order taking cognizance being prior to completion of the enquiry u/s 202 of the Code the same is bad in law. The learned Standing Counsel, on the other hand, supports the impugned order.

Coming to the first contention, it is seen that the allegations contained in the complaint petition are themselves not absurd or improbable. One may be tempted to hold them as such if the facts stated in the petition as mentioned above are considered as true. The learned SDJM having adjourned the case for enquiry u/s 202of the Code after merely taking cognizance of the'' alleged offence, it has to be taken that he has not yet fully . believed the allegations contained in the complaint petition. In course of such enquiry, it is expected of the learned SDJM to probe into all these facts to record a finding about justification of issuing process against the petitioner. Such stage having not yet reached and the learned SDJM having not passed any. order directing issuance of process against the petitioner, it can vary well be said that the petition is premature. So the first contention must fail.

As regards the second contention, I find the same to be without substance. According to Mr. Palit for the petitioner, an order taking cognizance u/s 190(1) of the Code should be passed only after enquiry u/s 202. The scope of taking cognizance and the scope of the enquiry are quite distinct and separate, u/s 190(1) of the ode, cognizance is taken of offence. After cognizance of offence is taken, the Magistrate can straightaway issue process for aspearance of the persons complained against or may enquire into the case himself or direct an investigation to be made by a police or by such other officer as he thinks fit u/s 202. The purpose of an enquiry or investigation contemplated u/s 202 of the Code is for the purpose of deciding- whether or not there exists sufficient ground for proceeding against the person complained of. Thus, while the purpose of taking cognizance u/s 190(1) of the Code is to take note that an offence has been allegedly committed, the purpose of the enquiry or investigation as contsmplated u/s 202 is to decide whether or not there exists sufficient ground for proceeding against the person alleged to have committed the offence The very purpose for which Sections 190(1)and 202 of the Code exist themselves clearly ; show that an enqury or investigation u/s 202 is to follow the oder of taking cognizance u/s 190(1) and not vice versa, in the case of Artatran Mahasuara and Others Vs. State of Orissa, a Bench of this Court observed as under :

"Taking cognizarce of an offence is a judicial act. The Magistrate is said to take cognizance as soon as he as such take-, legal notice, and applies his mind to the suspected commission of the offence, with a view to decide whether he should take such judicial action preliminary to inquiry as is hereinafter mentioned, namely recording a complaint, issuing processes, or ordering a previous inquiry."

In Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, the apex Court has observed :

"It is only when a Magistrate applies his mind for the purpose of proceeding undsr Section 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 Supreme Court was dealing with the old Criminal Procedure Code (Chapter XVI and Chapter XVII of the old Coae correspond to Chapters XV and XVI of the Code). In State of Assam Vs. Abdul Noor and Others, the appex Court has observed that :

"If after cognizance has been taken, the Magistrate wants any investigation, it will be u/s 202 of the Code."

Of course the apex Court has referred to the old Criminal Procedure Code, but Section 202 of that Code corresponds to Section 202 of the Code. All these decisions of the Supreme Court support the view I have taken that an enquiry u/s 202 of the Code is to follow the order of taking cognizance u/s 190(1} and not vice versa A. reference has been made to the case in Nira alias Niranjan Mohanty v. Narayan Pradhan and Ors. 1990 (I) OLR 408 which directly supports the contention raised by Mr. Palit. Therein, the learned Single Judge of this Court came to hold that "taking of cognizance of the offence and directing an inquiry simultaneously are to say the least irregular and illegal". The learned Single Judge has not referred to any authority in support of his view. On the other hand, the apex Court has taken the contrary view, as pointed out eailier. This Court in Artatran Wlahasuara''s case (supra) has also made observation, as quoted above, which I accept with great respect. The said observation certainly suppoits my view. So, the contention must also fail.

Both the points raised by Mr. Palit having thus failed, the petition is held to be without merit and the same is accordingly dismissed.