Rampal and Others vs State of Rajasthan and Another

N.C. Sharma, J.—This is a petition by Rampal and 15 others for quashing the criminal proceedings initiated against them by the Judicial Magistrate, Jaipur District and the initiation of which was confirmed by the Sessions Judge, Jaipur District, Jaipur on filing of revision petition No. 11/1987 by the petitioners.

Ram Gopal, non-petitioner No. 2 filed a private criminal complaint in the Court of Judicial Magistrate, Jaipur District, Jaipur on February 16, 1984, with respect to an incident alleged to have taken place on October 25, 1983. It was alleged in the complaint that non-petitioner No, 2 and his two companions were belaboured by the petitioners. It appears that non-petitioner No. 2 had also lodged a First Information Report at the Police Station. The police gave a final report on April 20, 1984. According to the petitioners, the Judicial Magistrate, Jaipur District took cognizance of the offences under Sections 147, 323, 324, 149, & 447, IPC on November 13, 1986. This according to the petitioners, was barred by limitation u/s 468(2)(c) of the Code of Criminal Procedure.

It may be mentioned that on March 20, 1985, the Judicial Magistrate had ordered for the recording of evidence u/s 200, Cr. PC and, for that purpose, the case was fixed on May 4, 1985 and on September 2, 1986. There were intervening dates also on which the Presiding Officer was not present. Ultimately, the impugned order was passed by the Judicial Magistrate on November 13, 1986. In this order, the Judicial Magistrate mentioned that the file was perused and there were sufficient grounds for taking cognizance against the petitioners for the offences mentioned in the order. He further passed an order for issuance of processes as against the petitioner.

The crucial question for determination in this case is that as to when a Magistrate can be said to have taken cognizance of an offence on a private criminal complaint. In other words, the question is whether the Judicial Magistrate has taken cognizance on March 20, 1985, when he passed an order u/s 200, CrPC. to examine, upon oath, the complainant and other witnesses.

It is well settled that cognizance is taken when the Magistrate has applied his mind. Cognizance takes place at a point of time when a Magistrate first takes judicial notice of an offence "Taking of cognizance'', means cognizance of an offence and not of an offender. Once the Magistrate takes cognizance of an offence, it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons In Nirmaljit Singh Boon v. State of West Bengal (1971) 3 SCC 753 , it was observed that before the Magistrate can be said to have taken cognizance of an offence u/s 190(1)(b) of the Code, he must have not only applied his mind to the contents of the complaint before him but must have bee so for the purpose of proceeding u/s 200 and the provisions following that section But when the Magistrate has applied his mind only for ordering investigation, u/s 156(3) of the Code or issuing a warrant for the purpose of investigation, he cannot be said to have taken cognizance of an offence. In H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), , it was observed that a Magistrate who on receipt of a complaint orders an investigation u/s 173, he may do one of the three things (1) he may drop action holding that there are no sufficient grounds for proceeding (2) he may take cognizance of the offence under Sec; 190(l)(b) on the basis of the police report and issue process and (3) he may take cognizance u/s 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses. Reference may also be made to the decisions in Darshan Singh Ram Kishan Vs. The State of Maharashtra, ; Mowu Vs. The Superintendent, Special Jail, Nowgong, Assam and Others, and Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, .

These authorities make it clear that the Judicial Magistrate took cognizance on the criminal complaint when he applied his mind on March 20, 1985 and ordered for examining upon oath the complainant and other witnesses u/s 200 of the Code. It may be that the Judicial Magistrate, Jaipur District stated in the order dated November 13, 1986 that upon perusal of the file, there were sufficient grounds for taking cognizance against the petitioners for various offences. It seems that the Judicial Magistrate was mixing the offence with the offender, which was not proper. As a matter of fact, cognizance had been taken by him on March 20, 1985 on the basis of the private criminal complaint u/s 190 of the Code when he proceeded to examine upon oath the complainant and the witnesses u/s 200, Cr. P.C. In this view of the matter, the cognizance was taken by the Judicial Magistrate within the period of limitation provided by Section 468(2)(c) of the Code of Criminal Procedure, 1973.

This petition has no merit in it and is dismissed with costs to respondent No. 2, which is assessed at Rs. 200/-.