K. Shanmugasundara Nadar vs V. Sadasivam

(1) This petition has been filed to quash the charge framed in C.C. No. 4690 of 1966 by the Fourth Presidency Magistrate, G.T., Madras.

(2) The complainant-respondent filed a private complaint against the petitioner before the Fourth Presidency Magistrate which was taken on file

under S. 417, I.P.C., triable under Summons procedure. Subsequently after issuing process to the petitioner, the learned Presidency Magistrate

framed a charge under S. 420, I.P.C. which is triable under warrant procedure.

(3) The point that arises for consideration in this case is whether a Magistrate who took cognizance of the case under S. 190(1)(a) of an offence

triable as a summons case can subsequently convert it into a warrant case. The learned counsel for the petitioner Mr. G. Gopalaswami contends

that once the Magistrate has taken cognizance of an offence triable as a summons case, he cannot convert it under any circumstances to a warrant

case, even if it is disclosed from the records and the evidence that an offence triable as a warrant case is made out. I do not think there is any

substance in his contention. There is no bar in the Criminal Procedure Code to adopt the procedure as was done in this case by the learned

Presidency Magistrate. If a Magistrate who is empowered to take cognizance of the case wrongly takes the case on file of an offence which he

subsequently realises either from careful perusal of the records or of subsequent events and developments, he can take cognizance of that offence

which was disclosed subsequently and proceed with, following the appropriate procedure under S. 529(e), Crl. P.C. If any Magistrate takes

cognizance of an offence under S. 190(1)(a) or (b) erroneously in good faith, the proceedings on that account shall not be set aside.

(4) The learned counsel for the petitioner relied upon a decision reported in Rajaratnam Pillai Vs. Emperor, . King J. held that under S. 246, Crl.

P.C., once a Magistrate has taken cognizance of a summons case, he cannot convict and accused person for anything but an offence triable as a

summons case. With great respect, I am unable to agree with the view of King J. As already pointed out by me, the Magistrate has taken

cognizance of an offence under S. 190, Crl. p.C. While doing so, if the Magistrate has committed a mistake while taking cognizance of the offence

or the facts placed before him were not complete, there is no prohibition under Sec. 190 to take cognizance of that offence which is subsequently

disclosed and proceeded with. King J. in another decision reported in In re: Malai and Others, , had realised that what was stated by him in the

previous decisions was not precise and accurate and observed as follows:--

It is no doubt stated with some lack of precision in Rajaratnam Pillai Vs. Emperor, that when once a Magistrate has taken cognizance of an

offence which is triable only according to the procedure applicable to summons cases, etc., but the argument is clear that I was concerned solely

with Ch. XX and the provisions of Sec. 246.

In this case, King J. held that even if a Magistrate takes cognizance of the case of an offence triable exclusively as a summons case, he has the

power to change his mind in regard to the exact offences which a complaint discloses before he begins to enquire into the case.

(5) Burn J. in a subsequent decision reported in Venkataramier v. Varadarajulu Chetti, 1938 MWN Crl. 109 = AIR 1938 Mad 815 dissented

from the earlier decision of King J. in Rajaratnam Pillai Vs. Emperor, and held:

If a Magistrate begins a trial as a summons case and then finds that an offence triable only under warrant case procedure has been committed, he

is bound to apply warrant case procedure thenceforward and he is not in any way disqualified from proceeding with the trial."" Subsequently in

Pentakota Latchanna and Another Vs. Vugginna Kannayamma, , Yahya Aji J., agreed with the view expressed by Burn J. I respectfully agree with

the view taken by Burn J. and Yahya Ali J.

(6) I hold that 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 Criminal Procedure Code.

The petition is, therefore, dismissed. The papers are returned to the Magistrate. He is directed to dispose of the case expeditiously according to

law.

(7) Petition dismissed.