G.N. Dass and Somasundaram Iyer Soma alias Govindasamy vs State

M.A. Sathar Sayeed, J.—The above petition is filed by the petitioners who figure as accused 1 to 3 in C.C. No. 399 of 1979 on the file of

the Judicial Second Class Magistrate, Udumalpet, to quash the said proceedings pending before the said Magistrate.

It appears that the complainant is an Advocate who appeared against the first petitioner in a divorce OP. No. 54 of 1977 in the Sub Court

Udumalpet. It is the case of the prosecution that the petitioners on 23rd February, 1978 at 12.00 noon entered into the house of the complainant

that the first petitioner took away a document from the table of the complainant, torn it and took away two other documents. It further, appears

that the petitioners used abusive language against the complaint. Entrained by this the complainant lodged a complaint before the respondent who

has registered the same under S. 448, 426 and 379 I.P.C. On 2nd September, 1979 the petitioners were, served with summons directing them to

appear before the Judicial Second Class Magistrate, Udumalpet, on 6th November, 1979 in C.C. No. 399 of 1979. It farther appears from, the

arguments advanced by the; petitioners'' counsel that the trial Court took cognizance of the case against the petitioners under Ss. 448 and 426,

I.P.C. On 6th November, 1979, an objection was taken by the petitioners before the trial court in Crl. M.P Mo. 1387 of 1979 contending that the

case a* against the petitioner under Ss. 448 and 426, I.P.C. is barred under S. 468, Crl. P.C. The trial court issued notice to the Public

Prosecutor the learned Public Prosecutor appears to have filed an application before the. court below to take cognizance of the case not only

under Ss. 448 and 426, I.P.C. but also under S. 380, I.P.C. It is at this stage arguments'' were advanced before the trial Court by the respective

counsel and the trial Court has passed an order on 17th November, 1979 which is as follows :

Though this Court has taken Cognizance of this case under Ss. 448 and 426, I.P.C. only, a perusal of the statements under S. 162, Crl. P.C. now

reveals an offence under S. 380, I.P.C. also. The defence counsel opposes it. The other side is heard. In the interests of justice, the trial will

proceed. Petition is dismissed finally.

It is only to quash the aforesaid order, as stated above, the above petition has been filed by the petitioners.

The conviction the petitioners before me in the affidavit filed by them is, that on 6th November, 1979 it was specifically brought to the notice of

the court by the petitioners that cognizance of the case taken against them by the court on the Police report for the of offences under Ss. 448 and

426, I.P.C was time-barred under the provisions of S. 468(2)(a), Crl. P.C. on the ground that the offences by the petitioners are alleged to have

been committed on 23rd February, 1978, while the charge-sheet by the respondent was filed only on 11th June, 1979. The Court below was

convinced that is has no jurisdiction. But, still the matter was posted to the next day for hearing the public Prosecutor. On 7th November, 1979,

the second accused alone was present in Court and the matter was adjourned at the request or the Assistant Public"" Prosecutor to 11th

November, 1979. On 7th November, 1979 the Assistant Public Prosecutor submitted before the trial court that not only the charge against the

petitioners under Ss. 448 and 426, I.P.C. is maintainable, but also under S. 380, I.P.C. This argument of the Assistant Public Prosecutor has led

the trial Court to pass the impugned order extracted above.

The argument advanced before me by Mr. Arunachalam, Learned Counsel for the petitioners is that when once the trial Court has taken

cognizance of the case on receipt of the police report along with the statements of the prosecution witnesses for the offences'' under Ss. 448 and

426, I.P.C., it means that the Court has applied its mind to the records placed before it for proceeding further with, the matter against the

petitioners with reference to the offences alleged against them According to the counsel, the application of the mind by the trial Court is clear from

the fact that the trial Court took cognizance only of those offences falling under Ss. 448 and 426, I.P.C., after applying its mind which the counsel

contends cannot lie, for, the said charge under S. 468, Crl. P.C. is barred by limitation. In other words, the counsel contends that if there is

absolutely a bar in taking cognizance of the offence against the petitioners under Ss. 448 and 426, I.P.C. then there cannot be a second cognizance

under S. 380,1.P C. by the trial Court. In any event, the counsel contends that in so far as the first accused is concerned, even assuming that there

is likely a charge under S. 380, I.P.C., from the averments of the First Information Report, there cannot be a charge under S. 380, I.P.C, in so far

as against accused 2 and 3 are concerned. Under the circumstances, the counsel appearing for the petitioners contends that the accused 2 and 3

will be absolved not only under Ss. 448 and 426, I.P.C, but also under S. 380, I.P.C. The other argument advanced by the Learned Counsel for

the petitioners is that the Magistrate having applied his mind and haying taken cognizance of the case with reference to Ss. 448 and 426, I.P.C.,

cannot take cognizance for a second time with respect to S. 380, I.P.C, against the petitioners In order to support his argument, reliance is placed

by the Learned Counsel for the Petitioners on a decision reported in Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, . The

Supreme Court has held that:

The expression ""taking cognizance of an offence by the Magistrate has not been defined in the Code. The ways in which such cognizance can be

taken are set out in Cls. (a), (b) and (c) of S. 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the

circumstances, of the particular case including the mode in which the case is sought to be instituted, and the nature or the preliminary action, if any,

taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under

S. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of

S. 190(1)(a) . If, instead of proceeding under Chapter IX he has, in the judicial exercise of his discretion, taken action of some other kind, such as,

issuing a search warrant for the purpose of investigation, or ordering investigation by the police under S. 156(3) , he cannot be said to have taken

cognizance of any offence.

With reference to the decision cited above, I may state that in the instant case there is no such order passed by the Magistrate for issuing a search

warrant for the purpose of investigation under S. 156(3). Crl. P.C. On the other hand the Magistrate has taken cognizance of the offences only

under Ss. 448 and 426, I.P.C.

In Darshan Singh Ram Kishan Vs. The State of Maharashtra, the Supreme Court, while dealing with the charge sheet and while discussing S.

190, Crl, P.C, has observed as follows:

As has often been held, taking, cognizance does not involve any formal action or indeed, action of any kind, but occurs as soon, as a Magistrate

applies his mind to the suspected commission of an'' offence. Cognizance , therefore, takes plate at a point when a Magistrate first takes judicial

notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon

information of a person other than a police officer. Therefore when it Magistrate takes cognizance of an offence upon a police report, prima facie

he does so of the offence or offences disclosed in such report.

In Tula Ram v. Kishore Singh 1978 L.W. (Crl) 27 at page 29, the Supreme Court, with respect to taking cognizance of an offence by a

Magistrate, has observed as follows:

The question as to what is meant by taking cognizance'' is no longer res integra as it has been decided by several decisions of this Court. As far

back as 1951 this Court in the case of R.R. Chari Vs. The State of Uttar Pradesh, , observed as follows :

Taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate as such applies his mind to

the suspected commission of an offence.

While considering the question in greater detail, this Court endorsed the observations of Justice Das Gupta in the case of Superintendent and

Remembrance of Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, which was to the following effect:-

''It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under S. 190(1)(a). Crl. P.C.

he 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 Chapter, proceeding under S. 200 and thereafter sending it for enquiry and report under S. 202.

When the Magistrate applies his mind not for the purpose of proceeding under the subsequent Sections of this Chapter, but for taking action of

some other kind, e.g., ordering investigation under 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.

S. 190 of the Code runs thus:

S. 190(c)(1): Subject to the provisions of this Chapter any Magistrate of the first Class and any Magistrate of the second class specially

empowered in this behalf under. Sub-s.(2) may take cognizance of any offence.

(a) upon deceiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person, other than a police officer, or upon his own knowledge, that such offence has been committed.

It seems to us that there is no special charm or any material formula in the expression ""taking cognizance'' which merely means judicial application

of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus, what S. 190 contemplates is that

the Magistrate takes cognizance once he makes himself fully cons-does and aware of the allegations made in the complaint and decides to examine

or test the validity of the said allegations. The court prescribes several modes in which a complaint can be disposed of after taking cognizance. In

the first place, cognizance can be taken on the basis of three circumstances: (a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such fact and (c) upon information received from any person other than the police officer or upon his own knowledge,

that an offence has been committed. These are the three grounds on the basis of which a Magistrate can take cognizance and decide to act

accordingly. It would further appear that this Court in the case of Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, observed

the mode in which a Magistrate could take cognizance of an offence and observed as follows:-

It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under S. 190(l)(a), Crl. P.C., be

must not only have applied his mind to the contents of the petition, but must have done so for the purpose of proceeding in a particular way as

indicated in the subsequent provisions of this Chapter, proceeding under S. 200, and thereafter sending it for inquiry report under S. 202.

It is now well settled by the decision of this Court in Abhinandan Jha and Others Vs. Dinesh Mishra, that while a Magistrate can order the police

to investigate the complaint it has no power to compel the police to submit a charge-sheet on a final report being submitted by he proceed In such

cases a Magistrate can either order re-investigation or dispose of the complaint according to law.

The, Supreme Court has further observed at page 31 as follows :-

(1) That a Magistrate can order investigation under S. 156(3) only at the pre-cognizance stage, that is to say, before taking, cognizance under Ss.

190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14, he is not entitled in law to order any

investigation under; S. 156(3) though in cases not falling within the proviso to S. 202, he can order an investigation by the police which would be in

the nature of an enquiry as contemplated by S. 202 of the Code.

(2) Where a Magistrate chooses to take cognizance be can adopt any of the following alternatives:

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused,

but before he does so, he must comply with the requirements of S. 200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

(3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry

ordered, is not satisfied that there are sufficient grounds for proceeding, he can dismiss the complaint.

(4) Where a Magistrate orders investigation by the Police before taking cognizance under S. 156(3) of the Code and receives the report,

thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint

filed before him and take action under S. 190 as described above.

In Asokan v. Narayanan (1972) M.L.J. (Crl.) 680 a Bench of the Kerala High Court has observed at page 706 in paragraph 22 as follows:-

Every criminal proceeding is started by the Magistrate taking cognizance of the offence under S. 190(1) of the Code. He can be said to have taken

cognizance of it only when he has applied his mind to the allegations or facts regarding the commission of it in order to proceed in a particular way

as indicated in the subsequent provisions of Chapter XV in which S. 190 appears. As the three grounds mentioned in S. 190(1) are not mutually

exclusive, it is open to him to take cognizance of an offence on one or more of such grounds. Piecemeal cognizance of a single offence or a series

of offences committed in the course of the same transaction is not warranted by the provisions of the Code. Instances are not wanting where after

a Magistrate has taken cognizance of an offence on the basis of a police report interested parties have filed private complaints to break up the

essential integrity of the case. Magistrates should be alert to it. Taking cognizance is of offences and not offenders. That being the true position, a

Magistrate can take cognizance of an offence even if the offenders are not known at the time. If offences are committed in the course of the same

transaction and he has already taken cognizance of the same on one of the grounds mentioned in S. 190(1), if it unnecessary for him to take

cognizance of the same again on one or more of the other grounds. After he has taken cognizance of an offence, if it comes to his knowledge that

more persons than those implicated already are also involved in the case, he can add them to the case he has already taken up. As regards

offences exclusively tribal by a Court of Session"" if they were committed in the course of the same transaction they can be tried at one trial if

warranted by Ss. 234 to 239 of the Code which deal with joinder of charges and accused. At the time of taking cognizance of such offences

Magistrates should be watchful that they take cognizance of the same only once. If they do that all the anomalies which later on occur can be

avoided. There would then be no two preliminary enquiries and trials. Different procedures are prescribed in preliminary enquiries for cases started

on police report and private complaint. That should not be taken to mean that if there is a police report and a private complaint in respect of the

same offences which can be tried at one trial the Magistrate should necessarily take cognizance of them twice and conduct two proceedings. On

the other hand what it means is only that if the case is started on the police report the procedure prescribed for it and if the case is started on

private complaint the procedure prescribed for it should be followed. That does not in any way affect the discretion vested in the Magistrate to

take cognizance of the same offences only once. And to use discretion is an important power. Magistrates should realise that when they take

cognizance of an offence they are discharging a judicial function. Instead of mechanically taking cognizance of the same offences twice on police

report and private complaint they should when they receive a police report or a private complaint consider whether they have already taken

cognizance of the same offences and whether they cannot be tried at one trial. It is high time that the prevailing practice of Magistrates

indiscriminately taking cognizance more than once of the same offences which can be tried at one trial is put a stop to. If a Magistrate takes

cognizance of the same offence twice on the basis of the police report and the private complaint, two preliminary enquiries have necessarily to be

conducted separately because the procedures prescribed for them are different''.

I have extracted the aforesaid decisions in extenso so that it can be useful to the subordinate Courts on this point.

Relying on the aforesaid decisions, the Learned Counsel appearing for the petitioners, on the facts of this case, contends that the Magistrate

having taken cognizance of the offences under Ss. 448 and, 426, I.P.C., after perusing the papers and after applying his mind, cannot now take

cognizance at the instance of the Assistant Public Prosecutor against the petitioners under S. 380, I.P.C. I may at this stage state that the decision

reported in Asokan v. Narayanan 1972 M.L.J. (Crl.) 680, deals with a police report and a private complaint on the same cause of action and this

decision cannot be applicable to the facts of the instant case. From the facts of the instant case, it is so obvious that the Magistrate has not applied

his mind before taking cognizance of the offences, for, had be applied his mind, he would not have taken cognizance of the offences which are

prima facie, barred.

The learned Public Prosecutor, on the other hand, contends that the charge under S. 380, I.P.C, can be maintained against the petitioners on

the facts of the case, for, the Magistrate has taken cognizance of the offence under S. 380, I.P.C, on 17th November, 1979 on perusing the entire

records of the case. The learned Public Prosecutor, in order to substantiate this proposition of law, relies on a decision reported in Shanmugha

Sundara Nadar v. Sadasivam 1967 L.W. (Crl.) 176. Krisbnaswamy. Reddy, J., has observed on the facts of that case that

If the Magistrate has committed a mistake while taking cognizance of an offence or the facts placed before him are not complete, there is no

prohibition under S. 190, Crl. P.C. to take cognizance of that offence which is subsequently disclosed and proceed with it. Therefore, the

Magistrate has got power at any stage before the judgment is delivered to alter the offence if it is warranted by the evidence on record and

proceed with the enquiry or trial of such offence following the appropriate procedure provided under the Crl. P.C.

It is on the basis of this decision, the learned Public Prosecutor contends that the Magistrate has taken cognizance of the offence not only under Ss.

448 and 426, I.P.C, but also under, S. 380, I.P.C, on the materials placed before him and such cognizance cannot be said to be illegal or is

contrary to law. The learned Public Prosecutor further contends that taking earlier cognizance in the instant case is based on the police report and

hence such earlier cognizance taken by the Magistrate cannot be complete and be considered as a proper cognizance.

I have beard the arguments of the respective counsel in this matter. As stated above, the short facts are that a complaint was lodged by the

complainant against the petitioners on 23rd February, 1978; that the charge-sheet though signed on 11th June, 1979, was filed by the respondent

on 13th August, 1979 against the petitioners under Ss. 448 and 426, I.P.C., that on 6th November 1979 the petitioners filed an application before

the trial court contending that the trial court has taken cognizance of the offences which are barred by limitation and hence they should be

discharged. The Magistrate on 17th November, 1979 gave notice to the Public Prosecutor and perusing the records, found that there are

materials, from the papers placed before him by the police, to show that an offence under S. 380, I.P.C., is also maintainable, apart from Ss. 448

and 426, I.P.C. as against the petitioner.

The question is, has the Magistrate applied his mind on the facts of the case while taking cognizance on the materials placed before him. From

the papers placed before the Magistrate by the Police it is clear that the charge sheet was filed on 13th August, 1979 against the petitioners under

Ss. 448 and 426, I.P.C, with respect to the offence committed by the petitioners on 23rd February, 1978, which prima facie on the facts which

are evident from the relevant dates, is barred and such cognizance cannot be said to be legal against the petitioners under the aforesaid sections.

The Magistrate, on a petition filed by the petitioners, after hearing the arguments of the Public Prosecutor, found that the charge against the

petitioners under S. 380, I.P.C. is also maintainable and passed the impugned order. On a perusal of the records and considering the sum and

substance of the decisions, quoted above in the matter of taking cognizance of the offence against the accused, am of the view that the charges

against the petitioners under Ss. 448 and 426, I P.C., are barred by limitation, for, the charge-sheet has been filed by the respondent against the

petitioner after a period of 17 months. The very taking of the cognizance of the offence by the Magistrate on 13th August, 1979 which is said to

have been committed by the petitioners on 23rd February, 1978, after a period of one year, with respect to Ss. 448 and 426, I.P.C. itself shows

that the Magistrate has not applied his mind in taking cognizance of the offences leveled against the petitioners. Under the circumstances this

petition is allowed to the extent of taking cognizance of the charges against the petitioners under Ss. 448 and 426, I.P.C.

Taking cognizance of an offence has not been expressly defined in the Code excepting the fact that cognizance can be taken under the clauses

set out under S. 190, Crl. P.C. It has further to be noted that cognizance takes place at a point when the Magistrate first takes judicial notice of an

offence and if, during the course of the proceedings, the Magistrate finds that another offence has also been committed, he can take cognizance of

the same. Therefore, the contention of the Learned Counsel appearing for the petitioners that when once the Magistrate takes cognizance of an

offence, the subsequent taking of cognizance with respect to another offence is illegal, cannot be correct; Take for example, if a Magistrate by

mistake or by oversight omits to take cognizance of an offence which is staring on the evidence and from the records, is he prevented from taking

cognizance of a particular offence which was left omitted? In the interests of justice, nothing prevents the Magistrate to take cognizance of an

offence which is, by oversight, omitted and which is evidenced from the records. I respectfully agree with the views of Krishnaswamy Reddy, J.,

that there cannot be any prohibition under S. 190 , Crl. P.C. to take cognizance of an offence which is subsequently disclosed and proceed with it,

and that the Magistrate has got power, at any stage before the judgment is delivered, on the facts of the case and in the interests of justice, to alter

the offence if it is warranted by the evidence on record arid proceed with the enquiry or trial following the; appropriate procedure provided under

the Crl. P.C. Under the circumstances, in so far as the charge under S. 380, I.P.C. against the petitioners is concerned, I direct the Magistrate to

scrutinise the records that are placed by the respondent before him to come to the conclusion whether the charge under S. 380, I.P.C is

maintainable against the petitioners or against the first petitioner alone, after giving due notice to either of the parties. With these observations, I

remit the entire matter to the trial Court for disposal.