Phool Singh and Others vs State of U.P. and Another

S.K. Dhaon, J.—By means of this application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) the applicants have challenged the legality of two orders passed by a Judicial Magistrate. By the first order the applicants have been summoned as accused for an offence u/s 302 of the Indian Penal Code. By the second order the Magistrate has issued non-bailable warrants against them.

A complaint was filed before the Magistrate by Dalla, opposite-party No. 2. At the foot of the said compliant, on 27th October, 1980, the Magistrate passed an order in Hindi, the English rendering of which is like this:

Register, S.O. Murti please investigate and report". Therefore, according to the applicants, the police submitted a final report. Then, it is alleged, Dalla filed a protest petition. It is said that on this petition the Magistrate passed an order issuing summons to the applicants.

Three contentions have been advanced on behalf of the applicants. The first contention is that the Magistrate had no jurisdiction to issue a direction for investigation as the offence complained of was triable exclusively by the Court of Sessions. Reliance is placed upon the first proviso to Section 202(1) of the Code. The second contention is that the Magistrate acted illegally in summoning the applicants without even examining the complainant or his witnesses. This contention is founded upon the provision of Section 200 of the Code. The third contention is that even though from the order-sheet dated 23rd November, 1983, it is apparent that the summons had not returned back after service upon the applicants, yet on that date the Magistrate straightaway passed an order directing the issue of non-bailable warrants against the applicants.

The first two contentions are based on the assumption that the learned Magistrate had reached the stage of Section 200 of the Code. The tenability of these two submissions depends upon the crucial question as to when did the Magistrate took cognizance of the offence. It is now well settled that there are two stages at which investigation can be directed. One stage has been termed as precognizance stage and the other stage has been nomenclatured as the postcognizance stage. The question is whether on 27th October, 1980, the Magistrate took cognizance of the case and thereafter directed the Station Officer to investigate and report. Much emphasis has been laid on behalf of the applicants on the word ''Register''. While dealing with this case, we will have to keep in mind that the instant is a complaint case and the matter is governed by the provisions contained in Chapter XV of the Code. The word ''cognizance'' is not defined in the Code. However, it has been the subject matter of a series of judicial decisions including those of the Supreme Court. In a nut-shell, the position is that to constitute the taking of ''cognizance'' there must be a judicial application of the mind for the purposes of proceeding under the various provisions of Chapter XV and not for taking action of some other kind, that is, ordering investigation u/s 156(3) or issuing a search warrant. It is also now well settled that the word ''may'' in Section 190 of the Code does not mean must. It is within the discretion of the Magistrate concerned to take cognizance or not to take cognizance of an offence. We may now advert to some authorities. In R.R. Chari Vs. The State of Uttar Pradesh, the Supreme Court in paragraph 9 approved a decision of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, which was as under;--

What is taking cognizance has not been defined in Code of Criminal Procedure and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence u/s 190(1)(a), Code of Criminal Procedure he must not only have applied his mind to the contents of the peta, but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of the Chap., proceeding u/s 200 & thereafter sending it for inquiry & report u/s 202. When the Mag. applies his mind not for the purpose of proceeding under the subsequent sections of this Chap. but for taking action of some other kind e. g. ordering investigation...... u/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.

The Supreme Court observed:

In our opinion that is the correct approach to question before the Ct.

In Gopal Das Sindhi v. State of Assam AIR 1961 SC 986 the facts were these. Upon a complaint made before the Additional District Magistrate against the Appellants (before the Supreme Court) for an offence alleged to have been committed by them under Sections 147, 323, 342 and 448 of the Indian Penal Code, the Magistrate made the following endorsement:

To Shri C. Thomas, Magistrate Ist Class for disposal.

Sri Thomas, on receipt of the complaint directed the officer-In-charge of Gauhati Police Station "To register a case, investigate and if warranted submit charge-sheet by 23rd August, 1957". The police submitted a charge sheet against the Appellants u/s 448 of the said Code only. This charge-sheet was submitted to the Additional District Magistrate. After the receipt of the charge-sheet the Additional District Magistrate passed the following order:

C.S. received against accused (1) Gopal Das (2) Bulchand (3) Khemchand u/s 448 IPC, who are on police bail. To Shri R. Goswami Magistrate, for favour of disposal please.

Thereafter Sri Goswami framed charges. A revision was preferred, which was dismissed. The matter was taken up to the Assam High Court by means of a petition u/s 439/561-A of the Code of Criminal Procedure and Article 227 of the Constitution, which was dismissed by the High Court. One of the arguments advanced before the Supreme Court was that the Magistrate Sri Thomas acted without jurisdiction in directing the police to register a case, to investigate it and thereafter to submit a charge-sheet if warranted. The argument was that it will be assumed that the Additional District Magistrate had taken cognizance of the offence mentioned in the complaint when he transferred u/s 192 of the Code the complaint to Sri Thomas for disposal. In paragraph 7 their Lordships approved the decision of their Court in R.R. Chari''s case. They reiterated that the view taken by the Calcutta High Court in the case of Superintendent and Remembrancer of Legal Affaris, was correct one. Their Lordships then proceeded;

It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e. g., ordering investigation u/s 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police u/s 156(3) of the Code. The action of Mr. Thomas comes within the observations of Mr. Justice Das Gupta. In these circumstances, we do not think that the first contention on behalf of the Appellants has any substance.

It will be seen that the facts of the case are apposite to the facts of the case at hand. The case before the Supreme Court stood on a better footing from the point of view of the contention raised on behalf of the Appellants therein.

In Jamuna Singh and Others Vs. Bhadai Sah, in paragraph 8 the Court observed;--

... It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation u/s 156(3) or issues search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.....

In Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, the question whether in view of Clause (a) of the first proviso to Section 202(1) of the Code of Criminal Procedure, 1973, a Magistrate who receives a complaint disclosing an offence exclusively triable by the court of Sessions is debarred from sending the same to the police for investigation u/s 156(3) of the Code arose for consideration. For answering this question the Supreme Court had to necessarily decide as to whether on the facts of the case before it the Magistrate concerned had taken cognizance of the offence and thereafter directed the police to make further investigation. The Magistrate had, on receiving the complaint forwarded it to the police for investigation with this endoresement:

Forwarded u/s 156(3), Code of Criminal Procedure to the Inspector of Police Dharamvaram for investigation and report on or before 5-8-1975.

In paragraph 13 the Court observed:

It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance." The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation u/s 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence himself.

In paragraph 14 the Court posed the question "What is meant by taking cognizance of an offence" by the Magistrate within the contemplation of Section 190." The Court then proceeded;

This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 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 of 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 u/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 Section 190(1)(a). If instead of proceeding under Chapter XV, 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 police u/s 156(3), he cannot be said to have taken cognizance of any offence.

In pargraph 18 the Court observed:

In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation u/s 156(3). He did not bring into motion the machinery of Chapter (sic). He did not examine the complainant or his witnesses u/s 200, Code of Criminal Procedure which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by police u/s 156.

Then the Court observed:

This being the position, Section 202 Ist Proviso was not attracted.

In Tula Ram and Others Vs. Kishore Singh, the question before the Supreme Court was whether or not a Magistrate after receiving a complaint and after directing investigation u/s 156(3) of the Code and on receipt of the final report from the police can issue notice to the complainant record his statement and the statements of other witnesses and then issue process u/s 204. The Supreme Court tackled this problem by first laying down as to what was meant by taking cognizance. It emphasised that the provisions of the Code contemplate two stages, namely, a pre-cognizance and post-cognizance stage. It held that an order u/s 156(3) of the Code ordering investigation could be passed only at the pre-cognizance stage. In paragraph 14 the Supreme Court laid down the following four legal propositions:

That a Magistrate can order investigation u/s 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 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 u/s 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.

Whether a Magistrate chooses to take cognizance he 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 Section 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.

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.

Where a Magistrate orders investigation by the police before taking cognizance u/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 before him and take action u/s 190 as described above.

From conspectus of the aforementioned decisions of the Supreme Court it is clear that in order to decide the controversy at hand we have to find out as to whether the Magistrate took cognizance of the offence on 27th October, 1980 when he passed the aforequoted order. It is apparent that the learned Magistrate did not bring into motion the machinery provided in Chapter XV of the Code. He did not apply his mind to the provisions of Section 200 of the Code. He did not examine the complainant or any other witness u/s 200 of the Code. He did not, therefore, take cognizance of the offence. He passed the order dated 27th October, 1980 at the pre-cognizance stage. Since the stage of Section 200 of the Code did not arise, the question of the Magistrate acting in violation of the provisions contained in Sub-section (1) of Section 202 proviso did not arise.

In his order dated 18th August, 1983, the learned Magistrate recorded that he heard the complainant, perused the record, perused the medical report of Hari Singh and perused the affidavits. Thereafter the learned Magistrate in the same order observed that a prima facie case u/s 302 of the Indian Penal Code was made out against the accused (the applicants before this Court) and the case should be registered. He also directed that the accused should be summoned by issuing notices. He fixed 6th November, 1983 for the appearance of the accused. The question is whether the learned Magistrate acted u/s 190(1)(a) or u/s 190(1)(b) of the Code when he tools coginzance of the offence. This controversy is not resintegra. It is covered by the decision of the Supreme Court in H.S. Bans v. State 1980 ACR 423. In this decision the Supreme Court firmly ruled that despite a final report it is still open to the Magistrate concerned to take into consideration the material contained in the police report itself and take cognizance u/s 190(1)(b). As already mentioned, the learned Magistrate specifically referred to the material which obviously formed part of the police report. Since the learned Magistrate took cognizance u/s 190(1)(b) of the Code, the question of his recording depositions of the complainant u/s 200 of the Code did not arise. The second contention too, therefore, fails.

Learned Counsel for the applicants has drawn my attention to the proceedings dated 23rd November, 1983 of the Court of the Magistrate. It is true that in the proceedings on that date it is mentioned that the accused were not present and the summons issued to them had not returned after service, yet the Magistrate issued warrants against the applicants. It is to be noted that this action was taken by the Magistrate as far back as 23rd November, 1983 and he had fixed 4th February, 1984, for the appearance of the applicants. No explanation has been offered in this application as to why the applicants did not challenge the order dated 23rd November, 1983 then. It is to be noted that this application has been filed in this Court on 8th August, 1984. Learned Counsel for the applicants has very frankly stated at the bar that despite the non-bailable warrants having been issued against the applicants they have so far not cared to present themselves before the learned Magistrate and they are at large. Normally, this fact coupled with the latches on the part of the applicants is not coming to this Court immediately after 23rd November, 1983 Should disentitle the applicants to get a relief from this Court in proceeding under secion 482 of the Code in regard to the proceedings dated 23rd November, 1983. However, keeping in view the interest of justice in a larger perspective, I make it clear that it will be open to the applicants to make an application before the learned Magistrate setting out the relevant facts and praying therein that the order issuing non-bailable warrants may be recalled. If such an application is made, the learned Magistrate shall dispose of the same on merits and in accordance with law. However, I make it clear that the learned Magistrate will not entertain such an application unless the applicants present themselves before him. If the applicants present themselves before the learned Magistrate they shall not be taken into custody forthwith on the basis of non-bailable warrants already issued. The learned Magistrate will first dispose of the application. If he accepts the same well and good. If he does not, he may then proceed in accordance with law on the footing that non-bailable warrants exist against the applicants.

With these observations this application is rejected summarily.