Mayanglambam Achou Singh vs Smt. Ningthoujam Ongbi Rashi Devi and Another

Y. Ibotombi Singh, J.—This petition u/s 397/401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as the "Code") is directed against the order dated 1.7.89 passed by the learned Chief Judicial Magistrate, Chandel in his Cril. Misc. Case No. 44 of 1989. On 1.7.89 the Respondent No. 1 Smt. Ningthoujam Ongbi Rashi Devi filed a complaint petition before the learned Chief Judicial Magistrate, Chandel against the Petitioner alleging, inter- (sic), that her husband Ningthoujam Angou Singh was murdered on (sic) by Shri Mayanglambam Achou Singh (Petitioner) and some case. The learned Chief Judicial Magistrate, after hearing the learned Counsel for the Petitioner, passed an order on 1.7.89 directing and Officer-in-Charge of Chandel Police Station to investigate the case and submit the report as early as possible. The order is very brief (sic) it reads as follows:

This is a complaint filed by Smt. Ningthoujam Ongbi Rashi Devi praying for taking cognizance and trial of the offence u/s 302/34 I.P.C. against the accused Shri Mayanglambam Achou Singh.

Register it as Cril. Misc. Case.

Peruse the complaint petition, Heard the complainant through his counsel Shri Chonjon Singh. Advocate. Considered the circumstances of the case and I find that the case requires investigation.

Ask the O/C Chandel P.S. to investigate the case and submit the report as early us possible Send a copy of this order along with complaint petition bearing No. CJM/CDL/89/340 dated 1.7.39 to the O/C Chandel, P.S. for necessary action.

It is to be noted here; that the complainant was not examined u/s 200 Code of Criminal Procedure and that the O/C was directed to investigate the case before the complainant was examined u/s 200 Code of Criminal Procedure

Shri N. Kerani Singh, learned Counsel for the Petitioner, has streneuously urged that the learned Chief Judicial Magistrate erred in law in passing the impugned order inasmuch as it violates the proviso to Sub-section (1) and proviso to Sub-section (2) of Section 202 of the Code Shri Ahanthem Nilamani Singh, learned Counsel for the Respondents, on the other hand, forcefully submits that the learned Magistrate was fully justified in passing the impugned order and that there was no illegality or irregularity committed by the learned Magistrate in passing the impugned order.

Now, proviso to Sub-section (1) and proviso to Sub-section (2) of Section 202 of the Code imposes two limitation on the power of the Magistrate in respect of the offences exclusively triable by the Court of Sessions. Clause (a) of proviso to Sub-section (1) bars (sic) Magistrate from sending such a case to the Police Officer or some other persons for investigation. He is to enquire himself. But this proviso does not bar him to order investigation by the police u/s 156(3) before taking cognizance. The proviso to Sub-section (2) obligates the Magistrate in such a case to call upon the complainant to produce all his witnesses and examine them on oath. On this point, Shri A. Nilamani Singh submits that the proviso to Sub-section (1) and proviso to Sub-section (2) are applicable only when the Magistrate has taken cognizance of the offence and that since the impugned order was passed before taking cognizance by the Magistrate u/s 156(3), no irregularity or illegality was committed by the learned Magistrate shri N. Kerani Singh, however, submits that the learned Magistrate had already taken cognizance of the offence by hearing the complainant through his counsel and, therefore, the impugned order is violative of the two provisos to Sub-sections (1) and (2) of Section 202 of the Code. Therefore, the crucial point for consideration is whether the impugned order was passed by the learned Magistrate before or after taking cognizance of the offence.

Now, the expression "take cognizance" has not been defined, when the Magistrate on receiving a complaint applies his mind for proceeding under Sections 200 and 203, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If be takes action of some other kind, such us, issuing a search warrant for the purpose of investigation or ordering investigation by the police u/s 156(3), he cannot be said to have taken cognizance of any offence. Cognizance is taken upon complaint when process is issued, but not restricted interpretation can be given to-the phrase. On this point, we may refer to the decision made by the Supreme Court in the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others,

In the above case, it was tersely held as follows ;

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 Clause (a)(b) and (c) of Section 190(1). Whether the Magistrate 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 of the preliminary action, if any, taken by the Magistrate. Broadly speaking when on receiving complaint, the Magistrate applies his mind for the purpose of proceeding u/s 200 and succeeding section in Chapter XV of the Code, he is said to have taken cognizance of offence within the meaning of Section 190(1)(a). If instead of proceeding under Chapter IX has in the judicial exercise of his discretion, taken action of some other kinds such as issuing a search warrant for the purpose of investigation or ordering investigation by the police u/s 156(3), he cannot be said to have taken cognizance of any offence.

In the same case it was also held as follows:

The power to order police Investigation u/s 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post cognizance stage where the Magistrate is in seisin of the Code. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power u/s 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 190(1)(a).

In the case of Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, it was also held that where a Magistrate has applied his mind only for ordering an investigation u/s 156(3) or issuing a warrant for purposes of investigation, he cannot be said to have taken cognizance of the offence.

Now, the allegation of the complainant is that her husband was killed by the present Petitioner and some others and, therefore, the complaint petition discloses that the offence was of exclusively triable by the Court of Sessions. The complainant was not at all examined u/s 200 Code of Criminal Procedure Instead of examining him u/s 200 Code of Criminal Procedure the learned Chief Judicial Magistrate passed an order directing the officer-in-charge of Chandel Police Station for investigation even though the complaint discloses an offence which is exclusively triable by the Court of Sessions. In fact, the Magistrate, after hearing the complaint though his counsel, was satisfied that the matter required investigation and, therefore, he passed an order directing the officer-in-Charge of the Chandel Police Station to investigate the matter. Therefore, I take it that the learned Magistrate had applied his mind only for ordering Investigation u/s 156(3) and that he had never taken cognizance of the case. Hence, I have been persuaded irresistibly to held that the learned Magistrate did not commit any irregularity or illegality in passing the impugned order.

For those reasons, the revision has no force and it is, there-fore, dismissed.