Sant Ram v. Dashrath — 1967 DIGILAW 403 (ALL)

ORDER S.D. Singh, J. - This application in revision arises out of a complaint filed by the Applicant in respect of an alleged offence of theft said to have been committed at his house on the night between 17/18-7-1965. It was alleged that four persons were noticed inside the house attempting to commit theft, two out of whom were even apprehended on the spot. These two persons were taken to police station Rudhauli where a report was made about the occurrence. The police investigated the case but found the allegations to be wrong and consequently submitted a final report in respect of it. The police, it appears, having found the first information report made by the present Applicant to be false, started proceedings u/s 182 of the IPC for having given information which he knew or believed to be false. 2. The Applicant then filed a complaint in the court of the Judicial Magistrate, Bansi, u/s 190(1)(a) of the Code of Criminal Procedure which complaint was referred by the Magistrate for investigation. The order which was passed on 5-8-1965, does not mention the provision under which the police investigation was ordered. The Station Officer Rudhauli police station, reported that the story of the complainant was not found true on ivvestigation, that one Kirpa Shanker Pandey was behind the screen and was instigating the persons who had formed a party against one Bahori. On receipt of this report dated 14-8-1965, the Magistrate passed an order : "The complaint is dismissed per this report of S.O. Inform counsel for complainant accordingly." 3. The Applicant filed an application in revision against this order before the Sessions Judge, Basti, who came to the conclusion that there was no truth in the Applicant's case as reported by the police, that the order under revision was not illegal or irregular and the revision was consequently dismissed. 4. The Applicant has now come up in revision before this Court, but while the legality of the dismissal of his complaint is challenged in the grounds of revision, the prayer of the Applicant is: It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to allow the revision, quash the proceedings u/s 182 of the IPC and pass such other and further orders as may be deemed fit and proper in the circumstances of the case. It is further prayed that during the pendency of the above mentioned revision the proceedings u/s 182 IPC may remain stayed. 5. The main contention--in a way the only contention which was put forward during the hearing of this revision was that the Magistrate had taken cognizance of the offences alleged in the complaint and having done so, he could only proceed in accordance with the provisions of Ch. XVI, which means that he must have first Recorded the statement of the complainant and the witnesses present u/s 200 of the Code of Criminal Procedure and that the complaint could not be dismissed without that procedure having been gone through. 6. The soundness of the contention put forward on behalf of the Applicant will depend upon whether the Magistrate was bound to take cognizance of an offence on the complaint made by the Applicant or if he could proceed otherwise also without faking such cognizance. If the Magistrate was bound to take cognizance of the offence as soon as a complaint was made to him u/s 190(1)(a) of the Code of Criminal Procedure then the contention of the Applicant would have considerable weight and it would not be possible for the Magistrate to proceed further with the complaint without recording the statement of the complainant first, but if the provisions of the Code do not make it incumbent upon the Magistrate to take cognizance of an offence and permit him to proceed with the complaint even without taking such cognizance, this contention will have no force. 7. Cognizance is taken by a Magistrate u/s 190, Sub-section (1) of the Code, which provides that a Magistrate "may take cognizance of any offence" and then follow the three classes prescribing the circumstances under which such cognizance may be taken. The word "may" was at one time read of "must" but in recent years a different view has been taken and now we have the authority of the Supreme Court in more than one case that a Magistrate is not bound to take cognizance of an offence as soon as a complaint is made before him. I will come to these decisions presently. 8. Even Section 200 of the Code of Criminal Procedure does not say that a Magistrate is bound to proceed in a particular manner as soon as a complaint is made before him. I will come to these decisions presently. 8. Even Section 200 of the Code of Criminal Procedure does not say that a Magistrate is bound to proceed in a particular manner as soon as a complaint is made before him. The section begins with the words : "A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any...." A duty is no doubt cast upon the Magistrate under this section to examine the complainant "at once" and the witnesses present, but it is so only in respect of a Magistrate "taking cognizance of an offence on complaint". It is only, therefore, when a Magistrate takes cognizance of an offence that he has to follow the procedure prescribed u/s 200 and record the statement of the complainant and his witnesses. The use of the words "taking cognizance of an offence" clearly contemplates a case in which the Magistrate may not even take cognizance of an offence; and if he does not, the procedure prescribed u/s 200 will not be applicable. How and in what manner the Magistrate will proceed with the complaint when he does not take cognizance of the offence is not within the province of Section 200 and it does not, therefore, say anything as to how that complaint is to be dealt with, but certainly the section is clear that the necessity for the statements of the complainant and his witnesses being taken down would arise only when the Magistrate has taken cognizance of the offence. This is my reading of the provisions of Sections 190(1) and 200. 9. The question whether a Magistrate must in all cases take cognizance of an offence as soon as a complaint is made to him was considered by the Calcutta High Court in Superintendent and Remembrancer of Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, AIR 1950 Cal 437 , in which Das Gupta, J. made the following observations: What is taking cognizance has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. Abani Kumar Banerjee, AIR 1950 Cal 437 , in which Das Gupta, J. made the following observations: 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), Code of Criminal Procedure, 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--proceeding u/s 200 and thereafter Sending it for inquiry and report u/s 202. When the Magistrate applied 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), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. According to this view taken by Das Gupta, J., before a Magistrate could be held to have taken cognizance of any offence u/s 190(1)(a) of the Code of Criminal Procedure 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, proceeding u/s 200 and thereafter sending it for enquiry and report u/s 202". According to this view, therefore, before the Magistrate could be said to have taken cognizance of an offence he must not only be found to have applied his mind to the contents of the petition, but he must also be found to have done so for the purposes of proceeding under the provisions of Ch. XVI of the Code of Criminal Procedure. Mere application of a judicial mind in passing an order on the complaint is not enough to show that the Magistrate had taken cognizance of the offence. Application of the judicial mind, according to the view taken by Das Gupta, J., with which I respectfully agree, must be with a view to proceed under the provisions of Ch. XVI. Mere application of a judicial mind in passing an order on the complaint is not enough to show that the Magistrate had taken cognizance of the offence. Application of the judicial mind, according to the view taken by Das Gupta, J., with which I respectfully agree, must be with a view to proceed under the provisions of Ch. XVI. It is then and then alone that the Magistrate can be said to have taken cognizance of the offence; and there can be no denying the position that once the Magistrate takes cognizance of the offence, he must have proceeded with the complaint in the manner specified in Section 200. But if the Magistrate, even though he may have applied his judicial mind, did not do so with a view to proceed with the complaint in accordance with the provisions of Ch. XVI, it cannot be said that he had taken cognizance of the offence; and it will not be possible in that case to hold that he was not acting in accordance with the provisions of law. 10. The view expressed by Das Gupta, J., which has been extracted by me above, came up for consideration before the Hon'ble Supreme Court in more than one case and the earliest among them is reported in R.R. Chari Vs. The State of Uttar Pradesh, AIR 1951 SC 207 . After extracting the aforesaid observation of Das Gupta, J. in their judgment their Lordships said : "In our opinion that is the correct approach to the question before the Court". 11. The next case in point of time is Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, AIR 1959 SC 1118 . The same observation of Das Gupta, was referred to even in this decision and in respect of it their Lordships observed that this observation by "Das Gupta, J. in the case of Superintendent and Remembrancer of Legal Affairs Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, AIR 1950 Cal 437 was approved by this Court in the case of R.R. Chari Vs. The State of Uttar Pradesh, AIR 1951 SC 207 . In respect of the argument which was advanced before their Lordships it was observed: It is, however, argued that in R.R. Chari Vs. Abani Kumar Banerjee, AIR 1950 Cal 437 was approved by this Court in the case of R.R. Chari Vs. The State of Uttar Pradesh, AIR 1951 SC 207 . In respect of the argument which was advanced before their Lordships it was observed: It is, however, argued that in R.R. Chari Vs. The State of Uttar Pradesh, AIR 1951 SC 207 this Court was dealing with the matter which came under the Prevention of Corruption Act. It seems to us however, that that makes no difference. It is the principle which was enunciated by Das Gupta, J. which was approved. That their Lordships observed in the same case that 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. Then they observed : "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 was taken of an offence." These were principally the facts on the basis of which it was urged before their Lordships that the Magistrate had taken cognizance, but it was held that that inference could not be drawn from these circumstances. 12. The next case is Gopal Das Sindhi v. State of Assam 1961 AWR 228 SC in which referring to the observation of Das Gupta, J. their Lordships said that these observations "were approved by this Court in R.R. Chari Vs. The State of Uttar Pradesh, AIR 1951 SC 207 . Their Lordships then proceeded further and pointed out that "when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Ch. 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 facts in this case appear to be more or less similar to the one in the revision under hearing. On page 231 of the report their Lordships observed: It will be clear, therefore, that in the present case neither the Addl. District Magistrate nor Mr. Thomas applied his mind to the complaint filed on 3-8-1957, with a view to taking cognizance of an offence. The Addl. On page 231 of the report their Lordships observed: It will be clear, therefore, that in the present case neither the Addl. District Magistrate nor Mr. Thomas applied his mind to the complaint filed on 3-8-1957, with a view to taking cognizance of an offence. The Addl. 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. 13. The last Supreme Court decision on the subject is Jamuna Singh and Others Vs. Bhadai Sah, AIR 1964 SC 1541 . At one place on page 1544 it is pointed out that it is well settled now that when on a petition of complaint being filed before a Magistrate he applies his mind for proceeding under the various provisions of Ch. XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint; but when he applies his mind not for such purpose but for purposes of ordering investigation u/s 156(3) or issues search arrant for the purpose of investigation he cannot be said to have taken cognizance of any offence and reference is then made to the cases of R.R. Chari and Gopal Dass referred to earlier in this judgment. Then on the same page their Lordships observed: It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have without taking cognizance directed an investigation of the case by the police u/s 156(3) of the Code of Criminal Procedure. 14. In this particular case the Magistrate had already taken cognizance of the case before the complaint was sent for investigation to the police and it was consequently held, that the investigation could not have but been ordered u/s 202(1) of the Code of Criminal Procedure, but that is besides the point. 14. In this particular case the Magistrate had already taken cognizance of the case before the complaint was sent for investigation to the police and it was consequently held, that the investigation could not have but been ordered u/s 202(1) of the Code of Criminal Procedure, but that is besides the point. The view which is almost settled by the various decisions of the Supreme Court is clear that a Magistrate is not bound to take cognizance of on offence as soon as a complaint is made before him and even application of the judicial mind to the facts of the case will not indicate that he had taken cognizance of the offence. In order that it may be said that he had taken cognizance, two things will have to be brought out : that the Magistrate had applied his judicial mind to the facts of the case and that he did so with a view to proceed further with the complaint in accordance with the provisions of Ch. XVI of the Code. 15. That being the legal position when the Magistrate directed investigation in the case on the complaint having been filed by the Applicant, he will be deemed to have done so u/s 156(3) of the Code. 16. The contention of the Learned Counsel for the Applicant, therefore, that ' the Magistrate was bound to record the statement of the complainant and also of such of his witnesses as were present before sending the complaint for investigation to the police is not sound. 17. It was urged that though according to the view taken by the Supreme Court a Magistrate may send a complaint for investigation to the police u/s 156(3) of the Code of Criminal Procedure, the various decisions of the Hon'ble Supreme Court do not indicate what order is to be passed by the Magistrate on receipt of a report by the police which is adverse to the complainant and that there is no provision even in the Code under which the Magistrate may dismiss the complaint on the basis of the report received 'from the police. That there is no specific provision in the Code of Criminal Procedure to that effect appears to be correct, at least none was pointed out to me during the hearing of this revision and the Learned Counsel for the Applicant was right even to this extent that there does not seem to be any observation of their Lordships of the Supreme Court in any of these decisions as to what orders should be passed by a Magistrate under such circumstances. But it is not always necessary that there must be specific provision for everything in any law. When the Code of Criminal Procedure clearly contemplates that a Magistrate may or may not take cognizance of an offence, there is a clear contingency in which he may not find it desirable to take cognizance of an offence either after examining the complaint by himself or after hearing the Applicant or after the receipt of the report from the police. If he decides not to take cognizance of the offence under any of these circumstances or any other, for which one need not speculate at this stage, is it that the complaint has to remain without any order merely because there is no specific provision, in the Code under which he may pass that order? When the law contemplates that cognizance may not be taken by a Magistrate under certain circumstances, there is an implied authority vested in the Magistrate that he may not proceed further with the complaint, if he finds reasons for not taking cognizance of the offence. Whether the order passed is for the dismissal or rejection of the complaint or whether the Magistrate is merely to say that he refuses to take cognizance of the offence or to proceed further with the complaint is immaterial. It is not the language of the final order which the Magistrate may adopt but the substance of the same which is material. If the Magistrate used the word "dismissal" in passing the order it cannot be said that he was wrong. The word is used in common parlance when the presiding officer of a court does not allow an application or proceed further with the matter. 18. The only question then remains for consideration is whether in the particular circumstances of the case the Magistrate should have sent the complaint to the police for investigation. The word is used in common parlance when the presiding officer of a court does not allow an application or proceed further with the matter. 18. The only question then remains for consideration is whether in the particular circumstances of the case the Magistrate should have sent the complaint to the police for investigation. Normally I would agree with the Learned Counsel for the Applicant that when the police had once dropped the proceedings on the basis of the first information report lodged by the Applicant, there was not much sense in sending the complaint to the same police station as the Station Officer was bound to stick to his previous opinion. Even if the Magistrate wanted an investigation by the police, it might have been desirable for him to direct the investigation to be made by some police officer superior to the officer who made the earlier investigation. But even so I do not think there would be justification for interference with the exercise of discretion by the Magistrate as he was within his province in directing an investigation by the police. 19. I would, therefore, dismiss this application in revision.