Ram Pat and Another vs State and Another

Harbans Singh, J.—This order will dispose of four Criminal Revisions (Nos. 167-D to 170-D of 1961) by Ram Pat and Risal Singh which have arisen in the following circumstances. Four different persons who were referred to as complainants were challenged in a case u/s 302 of the Indian Penal Code but were acquitted. They brought four separate complaints against the two petitioners alleging inter alia that they had entered into a conspiracy along with two others-Balbir Singh, Who has not come up in revision, and Tek Chand, who died during the pendency of these proceedings,-to falsely implicate the complainants. The petitioners and Tek Chand are said to have instigated Balbir Singh to involve the complainants also in the case mentioned above in order to defame them Prayer was made that the accused be proceeded against u/s 500 read with section 120-B of the Indian Penal Code. The complaints were dealt with by the Sub-Divisional Magistrate who, after recording the statement of the complainants in each case, transferred the ceases to the Court of Thaker Bhagwan Das, an Honorary Magistrate of the 1st Class, who, after recording the preliminary evidence, found that a prima facie case was made out only u/s 500 of the Indian Penal Code and issued summons accordingly. Objection was taken before him that the complaint being one of criminal conspiracy with the object of committing an offence which was non-cognizable, sanction of the State Government was necessary under sub-section (2) of section 196-A of the Criminal Procedure Code. That sanction not being there, it was urged that no cognizance of the complaint could be taken. This, however, was rejected by the Magistrate and also by the Additional Sessions Judge in revision and the main ground stated was that a Magistrate cannot be said to have taken cognizance of an offence unless he applies his mind to the facts disclosed in the complaint and that in as much as summons were issued only u/s 500, cognizance was taken only of that offence.

The learned counsel for the petitioners before me vehemently urged that cognizance must be deemed to have been taken by the learned Magistrate as soon as he proceeds to examine the complainant u/s 200 of the Criminal Procedure Code. For this, he mainly relies on the wording of the section which runs as follows:-

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 * * *

Reliance was also placed by him on an observation in R.R. Chari Vs. The State of Uttar Pradesh, where their Lordships of the Supreme Court quoted with approval the observations of Das Gupta J. in Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, , as follows:-

What is taking cognizance has not been defined in the Criminal Procedure Code 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), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceedings, in a particular way as indicated in the subsequent provisions of this chapter,-proceedings u/s 200 and thereafter sending it for enquiry and report * * * * * * *

These observations were again referred to in Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, and it was observed that issuing of a search warrant for the purpose of investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Same matter arose in The State of Andhra Pradesh Vs. Kandimalla Subbaiah and Another, That was a case where conspiracy to commit cognizable and non-cognizable offence was alleged. The objection was that the conspiracy to commit offences punishable under sections 466 and 467 of the Indian Penal Code, which were non-cognizable, could not be inquired into by the special Judge without the sanction of the State Government u/s 196-A(2) of the Criminal Procedure Code. The matter was, however, left open and it was observed as under:-

We do not think it necessary to say anything on the point because in any case the case has to go back to the Special Judge for reframing the charges and there is time enough for the Government to consider whether it should accord sanction to the prosecution of the various accused for the non-cognizable offences alleged to have been committed by them in pursuance of conspiracy, assuming of course, that sanction is necessary.

From the above observations it follows that if a complaint discloses more offences than one, some of which can be inquired into without any sanction and others which can be inquired into only after the sanction has been obtained, there can be no objection to the inquiry being carried on in respect of the first category of offences. In the light of this, it is hardly necessary to decide in these proceedings when the cognizance was taken. It is well settled that conspiracy to commit an offence is an offence by itself quite distinct from the offence to do which the conspiracy was entered into. That offence, if actually committed, would be the subject matter of a separate charge. In the present case, apart from the criminal conspiracy to defame and do harm to the complainants, there was actually instigation of Balbir Singh to lodge a report which according to the allegation of the complainants was false or defamatory. The petitioners supported him in this and they were also guilty of defamation. These offences are publishable u/s 500 of the Indian Penal Code apart from the conspiracy. The learned Magistrate, therefore, could have inquired into these offences u/s 500. As he has issued summons only u/s 500, I do not feel that his act was without jurisdiction. In the circumstances of the case, therefore I find no force in these revisions and dismiss the same. The parties will appear before the Additional District Magistrate (Judicial) on 1st of March 1962, when the learned Additional District Magistrate will either take up the case himself or entrust it to another Magistrate of competent jurisdiction who, in turn, will proceed with the case with all possible expedition.