Jamuna Sah and Others vs State of Bihar and Others

B.S. Sinha, J.—This is an unfortunate case with regard to an occurrence which is alleged to have taken place on the 27th of January, 1973, and which has not yet proceeded beyond its preliminary wrangles.

Opposite Party No. 2, Prahalad Sah, who, it is stated, is related to all the petitioners, ten in number, belong to the same family. He lodged a first information report against the petitioners charging them of offences under Sections 147,148,149,448,324 and 379 of the Indian Penal Code. On this report, the police instituted lakhisarai P. S. Case No. 14 (1) 73, and after investigation a final report on 7th of March, 1973. Thereafter on 18th of August, 1973, opposite Party No. 2 filed a complaint petition before the Sub-Divisional Magistrate, Lakhisarai, on which the following order was passed on 20th of August, 1973:

Informant files hazri. Accused persons are represented through their lawyers. Heard the learned lawyer. Put up in the afternoon for orders.

I have gone through the record. Let the matter be enquired into by Shri B. Baitha, Magistrate and submit his report within the next date fixed. To 20-9-73.

On receipt of the report, the Sub-Divisional Magistrate on 24th of December, 1.973, took cognizance for the offence under Sections 147,148,324 and 448 of the Indian Penal Code and transferred the case to another Magistrate for disposal. Thereafter the transferee Court issued processes against the petitioners.

The petitioners filed Criminal Miscellaneous No. 342 of 1974 in this Court challenging the cognizance taken against them on 24th of December, 1973, as well as the processes issued against them. By a judgment dated 1st of July, 1974, passed in Cr. Misc. No. 342, of 1974, the order dated 24th of December, 1973, as well as the order issuing processes against the petitioners was set aside and the case remitted to the Court below for examining the complainant on solemn affirmation. I shall refer in further details to this order a little later.

After remand, it seems the records of the case were received by the trial Court after about a year. On 6th October, 1975, opposite party No. 2, the complainant, appeared before the Magistrate, but he was not examined on solemn affirmation. Thereafter he did not appear on a number of dates and ultimately appeared on 9th of May, 1976, when he again prayed for time and did not get himself examined on solemn affirmation. On 28th June, 1976, the present application was filed by the petitioners and the same was admitted on 29th June, 1976, and further proceedings in the Court below were stayed. The prayer made by the petitioners in the present application is to quash the entire proceeding in G. R. No. 72 of 1973 pending in the Court of Shri V. Ram Sub-Divisional Judicial Magistrate, Lakhisarai.

In support of this application Mr. Ashwini Kumar, who his nut in commendable labour, has urged that in view of the order dated 1st of July, 1974, passed by this Court in criminal Misc. No. 342 of 1974 all that was pending before the Magistrate was a complaint petition filed by the complainant, of which cognizance had not been taken by the learned Magistrate. He has further urged that as only a complaint petition was pending before the Magistrate concerned, in view of the provisions of Section 468 of the Code of Criminal Procedure, 1973, he must dismiss the complaint as being barred by limitation.

The whole basis of the argument of the Learned Counsel for the petitioners is that in view of the decision of this Court in Criminal Misc. No. 342 of 1974 on 1st July, 1.974, all the previous record of the proceeding has been wiped out, except the petition of complaint. In support of this submission, Learned Counsel relied upon a decision of this Court reported in District Board Patna vs. Shri Batjoo Sao 1973 Pat. L.J.R 70 as also a decision of the Supreme Court reported in Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh, . It will be useful to recall that the learned Sub Divisional Magistrate by order dated 20th of August, 1973, directed an inquiry by a Magistrate u/s 202 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the ''old Code'') without examining the complainant on solemn affirmation and I have already re-produced the order passed by the learned Magistrate. It will be seen that after applying his mind to the record, he directed an inquiry u/s 202 of the Old Code. He was, obviously, in error in doing so because if he was proceeding under Chapter XVI of the old Code, then it was incumbent upon him once he had taken cognizance of the offence to examine the complainant on solemn affirmation. That not having been done, the issuance of the process against the petitioners had been set aside by the aforesaid judgment of this Court in Cr. Misc. No. 342 of 1974.

Before considering the decisions cited by the learned Counsel, it would be useful to consider the nature of the exact order passed by this Court on 1st July, 1974, the concluding portion of which runs thus:

For the above reasons, the aforesaid order dated 4.2.1974 of the transferee Magistrate summoning the accused persons to appear before hire to take their trial in the case is set aside, and the case is remitted to that court to examine the complainant on solemn affirmation and then apply his judicial mind to find out if a prima facie case has been made out for issue of processes against the accused persons or whether there should be any inquiry u/s 202 or whether the complaint is fit to be dismissed summarily u/s 203 Cr. P. C.

From the order extracted above, it is obvious that this Court directed the Magistrate concerned to examine the complainant on solemn affirmation and then to act in accordance with the terms of Sections 202, 203 or 204 of the old Code. In other words, the order of this Court clearly directed the Magistrate to take action in accordance with the provisions of Chapter XVI of the old Code. Sections 200 to 203 are included in Chapter XVI of the old Code. Section 200, excluding the pr oviso, reads thus:

A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :...

On going through this provision, it is manifest that a complainant is examined on solemn affirmation as also the witnesses present in support of the complaint only when a Magistrate takes cognizance of an offence. In other words, examination of the complainant on solemn affirmation is an act subsequent to the taking of cognizance by the Magistrate concerned.

In a decision of this Court reported in Sudama Singh v. Ravindra Narain Singh 1973 P.L.J.R. 35, Untwalia, J. (as he then wag) sitting with Akbar Husain, J., observed that it is the duty of the Magistrate taking cognizance of an offence on complaint to at once examine the complainant upon oath but examination of the complainant upon oath is not an integral part of the process of taking cognizance. It was emphasised there that taking of cognizance of any offence u/s 190 does not depend upon examination of the complainant upon oath. By referring to proviso (a) to Section 200, it will be seen that when a complaint is made in writing, a Magistrate can transfer the case to another Magistrate u/s 192 without examining the complainant on solemn affirmation. Sub-section (1) of Section 192 of the old Code provides that a Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him. In other words,'' this proviso clearly stipulates that cognizance can be taken when a complaint is made in writing without examining the complainant on solemn affirmation. Similarly, proviso (c) to Section 200 of the old Code provides that when a case has been transferred to a Magistrate u/s 192, the transferee Magistrate is not required to re-examine the complainant on solemn affirmation, if the complainant had been so examined by the transferring Magistrate. In other words examination on solemn affirmation of the complainant in cases of transfer can he made before either of the Magistrates concerned. So these two provisions also lend support to the fact that examining the complainan t on solemn affirmation is not a condition precedent for taking cognizance of an offence on complaint.

It is well settled law on the basis of various authorities that although the word "cognizance'''' has not been defined in the Code of Criminal Procedure and Courts have not attempted to define it, it has always been taken to mean that the Magistrate concerend must have applied his mind to the contents of the petition for the purpose of proceeding in a manner as provided under Chapter XVI of the old Code. In the instant case, it is very clear that on 20th August 1973, the Magistrate had stated that after having gone through the record, he was sending the matter to another Magistrate for inquiry u/s 202. It is obvious that after having applied his mind, he was acting under Chapter XVI of the old Code. Unfortunately the error that crept into the order was that he directed an inquiry u/s 202 without examining the complainant on solemn affirmation, which he could not do in view of the provisions of Section 200 of the old Code. Hence for the reasons that I have given, it cannot be said that the effect of the judgment dated 1st July 1.974 passed in Cr. Misc. No. 342 of 1974 by this Court was that there was nothing before the Magistrate after that date except the petition of complaint. By that judgment, this Court had wiped out the records of the case from the stage that the matter had been sent to another Magistrate for inquiry u/s 202. By stating that "the case is remitted to that Court to examine the complainant on solemn affirmation and then apply his judicial mind...", it is obvious that the case was remitted back to the position where the learned Sub-Divisional Magistrate had applied his mind to the complaint and then decided that the procedure as provided under Chapter XVI of the old Code should he followed. In other words, the learned Magistrate had taken cognizance of the offence on that date.

Mr. Kumar in support of his submission that only the complaint remained and there was no cognizance, apart from relying upon the two decisions to which reference has already been made above, has relied upon certain decisions of which, in fairness to him, notice must-be taken. The proposition laid down in Bishwanath Prasad and Anr. v. The State of Bihar 1975 P.L.J.R. 132 that an order of re-trial wipes out from the record the earlier proceeding cannot be disputed, but as I have stated above, in the facts of this case, by the impugned order, every process that had been taken on the complaint petition filed by the opposite party No. 2 had not bsen wiped out in view of the order of this Court. Hence this decision is of no avail. Similarly, the decision in the case of Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, is of no assistance to the petitioners because in that case it was laid down by the Supreme Court that if the Magistrate on a complaint directed a Police investigation u/s 156(3) of the old Code, it could not be said that any proceeding was continued before the Magistrate concerned. In this decision it was pointed out that where the Magistrate applies his mind to the contents of a complaint presented before him for the purpose of proceeding u/s 200 and the provisions following that section, it would amount to cognizance having been taken by the Magistrate, Similarly, in the case of Copal Das Sindhi and Ors. v. State of Assam and Anr. AIR 1961 S.C. 986 it was held that where a complaint was transferred to a Magistrate of the first class for disposal by the Additional District Magistrate and the transferee Magistrate directed the police to register a case, investigate the same and submit a charge-she et. cognizance had not been taken inasmuch as action had been taken u/s 156(3) of the old Code. It may be pertinent to point out that in this case Imam, J. speaking for the Court observed that Chapter XVI comes into play only if a Magistrate has taken cognizance of an offence on a complaint filed before him and the Magistrate taking such cognizance shall thereafter at once examine the complainant on solemn affirmation on oath.

My considered view in the instant case is that the Magistrate had taken cognizance of the offences on 20th August 1973 and in view of the direction of this Court in Cr. Misc. No. 342 of 1974, he had now to act in accordance with the provisions of Section 200 by first examining the complainant on solemn affirmation and then act in accordance with the other provisions of chapter XVI. In this view, the submission of the Learned Counsel for the petitioners that after 1st of July, 1974, the only thing on the record was the complaint petition, of which no cognizance had been taken, cannot be sustained and is rejected. Consequently, the submission that as only a complaint petition is pending before the Magistrate, to which the provisions of Section 468 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ''new Code'' will apply, has also got to be rejected because as I have already held, cognizance had already been taken on 20th August, 1973, on the complaint petition.

Mr. Nagendra Rai appearing for opposite party No. 2 has alternatively argued before me that even if it was assumed that Section 468 of the new Code applies, still that would be a matter for the learned Magistrate to consider and at this stage it cannot be said that merely because the date of occurrence is January 1973, the bar of Section 468 applies. There is substance in this submission of the Learned Counsel as well. Although clauses of Section 469(1) of the new Code says that the period of limitation, in relation to an offender, shall commence on the date of the offence, Sub-section (2) of Section 470 provides that where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of such stay shall be excluded. Therefore.it is obvious that the period during which the prosecution had been stayed because of the order of this Court, either in the present case or in Cr. Misc. No. 342 of 1974, will have to be excluded. That apart, Section 473 of the new Code gives power to the Court taking cognizance to condone the period of limitation if it is satisfied that on the facts and in the circumstances of the case the delay has been properly explained or that it is necessary so to do in the interests of justice. Therefore, even in this view, it cannot be said that now the prosecution of the petitioners would be barred because of the provisions of Section 468 of the new Code.

Lastly it was contended by Mr. Kumar that in any view, because of the inordinate delay, it would be an abuse of the process of the Court to continue the present proceeding. In support of this Learned Counsel relied upon the case reported in Superintendent and Remembrancer v. Mohan Singh and Ors. Criminal law Reporter 1974. (S.C.) 691. In that case, it was held that as criminal case had dragged on for about one and a half years without any progress, it was a proper exercise of the powers u/s 561A of the Code of Criminal procedure if the High Court had quashed the proceeding. It has been urged that apart from the fact that the present proceeding has been dragging on since August 1973, there is no justification for the complainant not having been examined on oath by the learned Magistrate from 9.10.1975 till 6.5.1976, on both of which dates the complainant appeared before the learned Magistrate. The order sheet of the learned Magistrate shows that the complainant appeared on 9.10.1975, but he was not examined as the Magistrate was otherwise busy. Thereafter the complainant did not appear on a number of dates. He ultimately appeared on 6.5.1967, and even on that date, he prayed for time for reasons stated in his petition and the case was again adjourned to another date. Thereafter, before any action could be taken by the learned Magistrate, the present application was filed in this Court on 28.6.1976 and same was admitted on 29.6.1976 and further proceedings had been stayed.

From what I have stated above, it seems that atleast from October 1975 to May 1976, there was hardly any reason for the non-examination of the complainant to enable the Magistrate to take action under Chapter XVI of the old code. Mr. Rai appearing for opposite party No. 2 tried to distinguish this case on the ground that in that case, even on merits, it was held that no prima facie case appeared to have been made out. Mr. Rai urged that in the instant case, it cannot be said so. That is true. However, for the reason that there is no explanation for the complainant not having made himself available for being examined on oath from 9.10.1975 till 6.5.1976, I am inclined to take the view that it would been abuse of the process of the court to permit the proceeding to continue with regard to an occurrence which had taken place in January 1973, in which even some women have been made accused. I would, accordingly, quash the proceeding.

In the result, this application is allowed.