Tula Ram and others vs Kishore Singh

K.S. Tiwana, J.—The Petitioner, who are 7 in number, have approached this Court u/s 482, Code of Criminal Procedure (1973), for quashing the proceedings pending against them under Sections 304/149 and 148, Indian Penal Code, in the Court of Judicial Magistrate Ist Class, Fsrozepur initiated at the instance of Kishore Singh Respondent.

The complaint filed by Kishore Singh against the Petitioners is a cross version of the case registered at Police Station Guru Har Sahai, under Sections 307/34 and 452, Indian Penal Code, against Mohd. Sadiq and others who have been committed to the Court of Session at Ferozepore for trial The facts of that case are that on 16th December, 1974, Mohd. Sadiq, a Pakistani National, who entered India without any pats port, and Balbir Singh, deceased, went to the shop of Tula Ram Petitioner in village Panjeke at about 9.00 P.M. and asked him to sell cloth to them on credit. Tula Ram refused to meet with their demand and told them to come on the following morning. As Tula Ram wanted to close the shop, Mohd. Sadiq and Balbir Singh tried to drag him in side the shop On the alarm raised by Tula Ram, Abhinash Chander armed with a danda and Nathu Ram armed with a gun rushed towards the shop and on reaching there found Tula Ram lying on the ground. Balbir Singh and Mohd Sadiq were armed with pistols and they fired shots from their weapons. Sudersban Kumar, Harbans Lal and Hazara Ram also came there armed with fire-arms. In exchange of fires Balbir Singh suffered injuries and later on succumbed to those. Mohd. Sadiq was captured at the stop. On the matter having been reported the police registered a case and chalaned Mohd. Sadiq for the above said offences.

Kishore Singh, who is a brother of Balbir Singh deceased, filed a complaint under Sections 302/109/307 Indian Penal Code, against the Petitioners in the Court of Judicial Magistrate Ist Class, Ferozepore, on 30th December, 1974. The case of Kishore Singh, Respondent is that at about 7/8.00 P.M. on 16th December, 1974, he beard a noise near the shop of Tula Ram and went there. Going there he found Nathu Ram and Hazara Ram Petitioners armed with guns and the other Petitioners armed with sticks, assaulting Mohd. Sadiq a Pakistani national. The Petitioners had dealings with Pakistanis. His brother Balbir Singh tried to help and rescue Mohd, Sadiq but he was dragged inside the house of Kansi Ram and Makand Lal by the Petitioners. Kakka Singh Mahala Singh P. Ws. were also attracted there. Hazara Ram fired a shot to scare away the P. Ws. when Balbir Singh tried to rescue Mohd Sadiq, Nathu Ram injured him with a gun-shot. Hazara Ram fired another shot. Kansi Ram, and Mukand Lal closed the door. Balbir Singh died due to the injuries, Kishore Singh then went to the police station but no body listened to him.

He ultimately filed the complaint before the Judicial Magistrate Ist Class, Ferozepore, who sent the same to the Station House Officer, Police Station, Guru Har Sahai for investigation u/s 156(3) Code of Criminal Procedure (1973) (hereinafter called the Code). The police was not satisfied with the case of Kishore Singh and submitted a report against him. The learned Magistrate on receipt of the police report issued a notice to the complainant. After recording the statements of the complainant and one witness, vide his order dated 22nd. May, 1975, the learned Judicial Magistrate summoned the Petitioners as accused under Sections 304/149 and 148, Indian Penal Code.

The Petitioners through this petition, have sought the quashing of the order of the learned Judicial Magistrate summoning them as accused and also the subsequent proceedings being taken in that Court on the ground that the Judicial Magistrate Ist Class, Ferozepore, had sent the matter for investigation u/s 156(3) of the Code and after that he ceased to have any legal authority to proceed with the complaint of Kishore Singh. The other ground urged in the petition is that the principal of vicarious liability, as stated by Kishore Singh, was not applicable to the case of the companions of Nathu Ram.

On a notice issued by this Court Kishore Singh did not file any return.

The main ground of attack of Shri R.S. Bindra, Senior Advocate on behalf of the Petitioners, is that once the Magistrate has acted u/s 156(3) of the Code it is not open to him to retake cognizance u/s 190(1) of the Code and to have a recourse to the procedure under Chapter XV of the Code. Shri S.S. Majahan appearing for the Respondent controvert these arguments urged that the Magistrate while directing the police to investigate the matter u/s 156(3) of the Code does not take cognizance but acts only for his satisfaction before he takes cognizance u/s 190 of the Code. According to Shri S.S. Mahajan be is not debarred from taking cognizance of the case after the police had reported to him the result of its investigation under his orders.

It would be appropriate to quote at this stage Sections 156 and 190 of the Code for a proper decision of the matter:

Police Officer''s power to investigate cognizable case.

(1) Any Officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which is a Court having jurisdiction over the local area with in the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered u/s 190 may order such an investigation as above-mentioned.

190.-Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

From the arguments of the parties addressed before me the question which arises is whether the Magistrate took cognizance of this case while ordering the investigation u/s 156(3) of the Code. The other question which is ancillary to the first is whether he could retake the cognizance, on the report the police after investigation u/s 156(3) of the Code, by proceeding under Chapter XV of the Code which contains Section 200, 202 etc?

The word "cognizance" has no where been defined in the Code nor any comprehensive definition of this word is available in any judicial decision todate. The observations of Das Gupta J, in Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, have been approved by the Supreme Court in more than one case. These observations are as under:

what is taking cognizance has not been defined in the 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), 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 proceeding in a particular way as indicated in the subsequent provisions of this Chapter-preceding u/s 200 and thereafter sending it for inquiry and report u/s 202. When the Magistrate applies-his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation u/s 156(3) of issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

These observations have been taken as the guiding principle for the interpretation of the word "cognizance" whenever necessity arose.

When a complaint showing the commission of a cognizable offence is presented to a Magistrate the courses open to him are either to start proceedings under Chapter XV of the Code by recording the statement of the complaisant u/s 200 of the Code or to have the case investigated through the agency of the police u/s 1(sic)6(3) of the Code. There cannot be two opinions on the point that when a Magistrate proceeds under Chapter XV of the Code, he cannot revert to have recourse to Section 156(3) of the Code because similar facility of investigation is provided in Chapter XV itself in the form of Section 202 of the Code.

The beading of Section 156 is "Police Officer''s power to investigate cognizable case". Subsections (1) and (2) of this section give the powers to the police officers to investigate cognizable cases independently at their own imitative. Under Sub-section (3) the police of fires are to carry out investigation when ordered by the Magistrate empowered u/s 190 of the Code. When a Magistrate orders such an investigation he does not apply his judicial mind, as it is generally called, for the purposes of taking of the cognizance as referred to in the heading of Section 190 of the Code. In a Supreme Court case reported as Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, , a Magistrate issued search and arrest warrants on 16th September, 1952 at the instance of Customs Authorities. It was urged in that case that the Magistrate had taken cognizance of the case on 16th September, 1952 at the time of the issue of search warrant and the subsequent proceedings were without jurisdiction. On the basis of these facts it was held-

As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence It is only when a Magistrate applies his mind for the purpose of proceeding u/s 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or u/s 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance." It was further held as under:

On 19th September, 1952, the Additional District Magistrate had not taken cognizance of the offence because he had allowed the police time till 19th November, 1952 for completing the investigation By his subsequent orders time for investigation was further extended until 2nd February, 1953. On that date the complaint was filed and the order of the Additional District Magistrate clearly indicated that he took cognizance of the offence and sent the case for trial to the specially authorised Magistrate. The petition u/s 155 requesting the Additional District Magistrate to issue a warrant of arrest and his order directing the issue of such a warrant could not also be regarded as orders which indicated that the Additional District Magistrate thereby took cognizance of the offence.

In Gopal Dass Sindhi and Ors. v. State of Assam AIR 1961 S.C. 986, this point about the taking of cognizance, u/s 190, of the Code, in the case ordered by the Magistrate for investigation u/s 156(sic) of the Code came up for decision before their Lordships of the Supreme Court. It was held in that case as under:

The provisions of Section 190 do not mean that once a complaint is filed, a Magistrate is bound to take cognizance of the facts stated in the complaint disclose the commission of any offence. The word ''may'' in Section 190 cannot be construed to mean ''must''. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, u/s 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code.

Their Lordships in this case further held as under:

"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."

In a later case reported as Jamuna Singh and Others Vs. Bhadai Sah, , this view was reaffirmed as follows:

When on a petition of complaint being filed before him the Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, be 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 ordering investigation u/s 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.

The powers of a Magistrate u/s 190, of the Code, to ask for investigation before taking cognizance was again reiterated in State of Assam Vs. Abdul Noor and Others,

Chapter XVI of Code of Criminal Procedure (1898) is equivalent to Chapter XV of Code of Criminal Procedure (1973 Taking of cognizance is a mental and judicial act. Before a Magistrate is said to have taken cognizance u/s 190(1)(a) of the Code he must have not only applied his mind to the complaint but must have done so for proceeding in a particular direction under the provisions of Chapter XV. The word "cognizance" is of indefinite import and is perhaps not used always in the same sense. In simply directing the police to investigate the matter u/s 156(3) of the Code, which is brought to the notice of a Magistrate by way of complaint, it does not amount to taking of cognizance ae it does not envisage the application of his judicial mind, and he can ask for the investigation u/s 156(3) of the Code. The heading of Chapter XIV is "Conditions Requisite for initiation of Proceedings". This gives a sufficient indication that he can make use of the provisions u/s 156(3) of the Code to satisfy himself about the contents of the complaint before he takes the cognizance of the matter. In view of the above cited judgments of the Supreme Court there is no matter in the argument of Shri R.S. Bindra that by asking the police to investigate, the learned Judicial Magistrate 1st Class, Ferozepore had taken cognizance of the case in hand.

The earlier part of the argument referred to as ancillary to the above discussion is whether in this case the Judicial Magistrate 1st Class, Ferozepore after the report of the police could proceed under Chapter XV to hold the inquiry himself and summon the accused person.

The Magistrate had not as yet taken cognizance of the complaint. Before that he opted for an investigation u/s 156(3) of the Code. Any favorable or unfavorable report to the complainant could not, in my view, change the character of the result of the investigation to make it a report u/s 173 of the Code. Section 156 (3) of the Code has a distinction of its own and is not influenced by Sub-sections (1) or (2) of this very section or its placing in Chapter XII of the Code It does not envisage the registration of a case as has to be done normally in cognizable cases investigated by the police under Chapter XII the Magistrate though he orders for the investigation cannot interfere in the investigation nor can he force the police to submit a particular report. Any report submitted after investigation u/s 156(3)of the Code is for his satisfaction which he insists on before taking cognizance on a complaint. This report will thus remain a report for the limited purpose of Sections 190 and 156(3) of the Code, although on the face of it appears to be hybrid mingling of these provisions. Any how this report by the police will not have the status of a report u/s 173 of the Code. The disagreement of the police with the case of the complainant, which might be true or genuine does not put the remedy of the complainant to an end He has his other remedies under the Code and a complaint is one of those. In such a case which was instituted on his complaint he was not required to put in a fresh complaint or a narajee (protest) petition (as it is generally called). He can request the Court to consider his complaint which has been investigated by the police as, its report neither amounts to dismissal nor final adjudication on his case. The Magistrate in this case after receiving the police report gave a notice to Kishore Singh and then proceeded under Chapter XV of the Code. This was acting on the same complaint which had been presented to the Magistrate and does not amount to reactivating of the previous one, as argued by Mr. R.S. Bindra. The complaint of Kishore Singh, had not been finally decided by the Magistrate and the cancellation of it could not be reported by the police. There is no question of the Magistrate being divested of the cognizance to retake it in any other form as he had not earlier taken it. The cognizance in this case was taken by the Judicial Magistrate 1st Class, Ferozepore on the date when he after no ice to Kishore Singh, applying his mind, recorded his statement u/s 200, of the Code.

There was nothing illegal in the act of the Judicial Magistrate Ist Class, Ferozspore, in this case which requires to be quashed through this petition

The question of application u/s 149, Indian Penal Code, to the case of the Petitioners other than Nathu Ram is a question of fact on which the parties are at variance. It is a matter of evidence which need not be decided in this petition The ratio of the Supreme Court decision in R.P. Kapur v. State of Punjab AIR 1960 SC 668, is not attracted for application to the case of the Petitioners The petition is, therefore, dismissed.