Saraswatiben vs Thakorlal Himatlal and Another

This Judgment has been overruled by : Sohan Lal and others Vs. State of Rajasthan, AIR 1990 SC 2158 : (1990) CriLJ 2302 : (1990) 3 Crimes 121 : (1990) 3 JT 599 : (1990) 2 SCALE 307 : (1990) 4 SCC 580 : (1990) 3 SCR 809

V.B. Raju, J.—On a police report, the learned Magistrate took cognisance of a case, and u/s 251-A(2) of the Cr. Pro. Code he discharged the applicant, who was one of the accused; but later on In fee course of the trial against the other accused, the learned Magistrate thought it necessary to frame a charge against the present applicant. He, therefore, passed an order saying that he would take cognisance of offence u/s 190(c), Cri. Pro. Code. So he ordered a process to issue against the present applicant.

In Revision, it is contended that once cognisance taken, it cannot be taken again and once an order of discharge is passed, me same Magistrate cannot go behind the discharge order unless the appellate Court or revisional Court modifies the order of discharge. These arguments are not sound, because what the Magistrate takes is a cognisance of offence and not of a case. It is, therefore, not necessary to take cognisance again u/s 190(c) of Cr. P. C. The cognisance taken on the police report continues until the whole matter is over.

Regarding the argument that once a discharge order has been passed, the learned Magistrate is functus officio. This argument is not sound, because the learned Magistrate is not functus officio till the cognisance which is properly taken comes to an end. The cognisance has not come to an end, because the inquiry is proceeding. At one stage, on the evidence as it then stood before him he found that there was no prirna facie case against the present applicant, but subsequently in the inquiry as a result of further evidence if the learned Magistrate feels that there is a prima facie case against the applicant, whom he has discharged, it is open to him to frame a charge against him. In this case, he merely issued a process. The Criminal Procedure Code does not require a written order in the case of discharge or for framing a charge or for not framing a charge, and in the case of discharging a person no reasons need be given and no order need be passed. There is no question of changing the order, because there is no need to pass any order. Reasons have to be given in cases falling u/s 263 of the Criminal Procedure Code, but no orders need be passed under Sub-section (2) of Section 251A, Cr. Pro. Code. In the case of acquittal, an order of acquittal must be recorded vide Section 258 Cr. P. C. If a Magistrate, after discharging a person under Sub-section (2) of Section 251A, Cr. P. C., finds subsequently on inquiry that there are grounds for believing that the person has committed an offence, it is open to the Magistrate, even if that person is not before the Court, to issue a notice to that person. So, I feel that there is nothing improper in issuing a notice by the learned Magistrate. The learned counsel for the petitioner relies on State v. Ganga Ram Kalita, AIR 1965 Assam 9. I do not agree with this, because there is no question of passing a valid discharge order in the present case. It has been observed in that case that the Magistrate becomes functus officio, so far as the case is concerned after passing a valid discharge order. I do not agree with this because the learned Magistrate does not become functus officio when he continues the cognisance of offence and has not terminated his cognisance by punishing all the persons found to be guilty and acquitting all persons found to be not guilty.

N o orders are, therefore, passed in this revision application.