Hari Ram and Others vs State and Another

G.L. Gupta, J.—This misc. petition is directed against the orders dt. 22.2.1996 and 21.11.1996 passed by the learned Judicial Magistrate, Sanchore. By the first order, the learned Magistrate had taken cognizance of the offences under Sections 447 and 323/34 IPC and ordered the summoning of the petitioners as accused. By the second order, an application filed u/s 468 Cr.P.C. by the accused-petitioners was rejected.

The contention of Mr. Bishnoi, learned Counsel for the petitioners was two fold: One, for the occurrence dt. 28.12.1994 the cognizance u/s 323 and 447 IPC could be taken within one year, and as the cognizance had been taken after the expiry of one year, it is liable to be quashed. He has relied on the observations of the Supreme Court in the case of A.R. Antulay v. Romdas Sriniwas Nayak 1984 SC 718 and Krishna Pillai v. T.A. Rajendran 1990 SCC (Cr.) 646. Two, the petitioners were entitled to protection u/s 197 Cr.P.C. because of the provisions of Section 56 of the Indian Electricity Act, 1910 and Section 82 of the Electricity (Supply) Act, 1948 and as the sanction of the competent authority was not obtained before prosecuting them, the cognizance is liable to be quashed. He has cited the case of Anand Singh v. State of Raj. 1975 WLN (UC) 514 in support of this contention.

On the other hand, the contention of Mr. Shah, learned Counsel for the respondent, was that the Magistrate had taken cognizance on 11.9.1995, the date on which he proceeded to examine the complainant and his witnesses on the protest petition and therefore, the cognizance was not barred by time. He has relied on the cases of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, and Nathu v. State of Raj. 1994 (1) RLR 39. Mr. Shah urged that the petitioners acted in good faith or not, is a question which can be decided only after evidence is led by both the parties.

I have considered the rival submissions made by the counsel for the parties. Section 468 Cr.P.C. bars taking of cognizance after the lapse of a period of one year of the offences punishable with imprisonment for a term not exceeding one year. The offences u/s 323 & 447 IPC are punishable with imprisonment not exceeding one year. It is obvious that cognizance of the offences could not be taken after the expiry of the period of one year, without granting extension of period u/s 473 Cr.P.C.

The order dt. 22.2.1996 indicates that the learned Magistrate had rejected the final report, submitted by the police on that day, and had issued process against the accused-petitioner for the offence tinder Sections 447 and 323/34 IPC. The serious question to be decided is whether the date 22.2.1996 should be considered as the date of taking cognizance of the offence.

The Magistrate takes cognizance of an offence u/s 190(1)(a) Cr.P.C. upon receiving a complaint on facts which constitute such offence. It is obvious that taking of cognizance precedes the summoning of an accused. It is not correct to say that cognizance of the offence is taken by the Magistrate when he issues process against the accused. The correct legal position is that the stage at which the Magistrate embarks the enquiry under Chapter XV of the Code of 1973, it can be said that he has taken cognizance of the offence. The Magistrate takes cognizance of the offence and not against the offenders. The process of summoning accused in a case takes place subsequent to taking of the cognizance of the offence by the Magistrate. Vide : Nathu v. State (supra), which judgment is based on the two decisions of the Hon''ble Supreme Court : D.L. Reddy v. V.N. Reddy (supra) and Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, wherein it has been held that the Magistrate can be said to have taken cognizance ori a complaint, when on receiving a complaint, he applies his mind for the purpose of proceeding u/s 200 and succeeding sections in Chapter XV of the Code of 1973.

In the instant case, the complainant had lodged a report with the police. The police after investigation gave final report. The learned Magistrate gave notice to the complainant vide order dt. 5.7.1995. The complainant appeared before the Magistrate and filed a protest petition on 11.9.1995, on which the Magistrate ordered that the witnesses shall be examined. In my opinion, it is the date 11.9.1995 on which cognizance of the offence can be said to have been taken by the Magistrate. Of course, in the order dt. 22.2.1996 it was recorded by the Magistrate that he was taking cognizance of the offence u/s 447 and 323/34 IPC but these observations will not make the order dt. 22.2.1996, the order of taking cognizance. As a matter of fact, the Magistrate had already taken cognizance of the offences on 11.9.1995 when he proceeded to enquire into the matter under Chapter XV of the Code of 1973.

Now, it is to be seen as to whether the judgment of the Apex Court in the case of A.R. Antulay (supra) lays down different proposition of law. Mr. Bishnoi has relied on the following observations of their lordships at para 31 of the report:

When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Cr.P.C. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially examine whether a case is made out for issuing process. When it is said that court issued process, it means the court has taken cognizance of the offence and has decided to initiate the proceedings and as a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the court.

These observations cannot be interpreted to mean that the cognizance of the offence is taken when the process is issued against the accused. What has been observed is that issuance on the process against the accused is a visible manifestation of taking cognizance by the Magistrate. It clearly means that the act of ''taking cognizance'' takes place before the Magistrate issues process against the accused. The process is only a visible manifestation of the factum of taking cognizance. The observations, thus do not lay down different proposition of law.

The case of Krishan Pillai v. T.A. Rajendran (supra) is based on the ruling of A.R Antulay (supra), wherein it has been held that mere filing of the complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint.

Consequently, it is held that the cognizance of the offences in the instant case had already been taken by the Magistrate on 11.9.1995 i.e. within one year from the date of commission of the offence and the cognizance was not barred by limitation.

Coming to the second contention of Mr. Bishnoi it may be stated that protection u/s 197 Cr.P.C. is available only to such public servants who are not removable from their office, save by or with the sanction of the Government. The petitioners are JEN, the Linemen and the Helper. Certainly they are not the public servants, not removable from their office save by or with the sanction of the State Government. Thus, protection of Section 197 Cr.P.C. is not available to the petitioners.

Coming to Section 56 of the Indian Electricity Act, 1910 it may be stated that it applies only when a public officer commits offence under the Indian Electricity Act, 1910. Section 56(2) reads as follows:

52(2) No court shall take cognizance of an office under this Act by a public officer except with the sanction.

(a) x x x

(b) in any other case, of the State Government.

It may be that the employees of the Rajasthan State Electricity Board are public officers but the protection u/s 56 is available only when the offence is committed by the public officers under the Act of 1910. The protection is not available for offences under other laws.

As to the contention based on Section 82 of the Electricity (Supply) Act, 1948 it may be stated that it is the subject matter of the trial as to whether the petitioners had acted in good faith when they committed trespass and gave beatings to the complainant. At this stage, it cannot be said that the act of the petitioners was done in good faith or intended to be done under the Act. The petitioners may raise the plea during the course of trial.

There being no merit in both the contentions raised by Mr. Bishnoi, the petition is dismissed.