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1973 DIGILAW 74 (KER)

STATE OF KERALA v. JOSEPH ALIAS KUNJACHAN

1973-03-01

E.K.MOIDU

body1973
Judgment :- 1. The first of these petitions is by the State against the order passed in Crime No. 61 of 1971 on 14 61972 by the Sub Divisional Magistrate, Kanjirappally, refusing to hand over the records and material objects pertaining to the crime aforesaid to the Deputy Superintendent, Crime Branch, C.I.D, Trivandrum. The other petition is filed by the Public Prosecutor before this Court to direct the Sub Divisional Magistrate, Kanjirappally, to return those records and material objects to the Deputy Superintendent. 2. The Superintendent of Police, Crime Branch, C.I,D-, Trivandrum, filed a First Information Report dated 20 6 1971 in Crime No. 61 of 1971 under S.157 (1), Cr. P. C. before the Sub Divisional Magistrate, Kanjirappally, on 23 61971 against 38 accused persons alleging offences under S.120B, 489 A, B, C and D of the Indian Penal Code in which it was stated that these accused persons conspired together for counterfeiting hundred-rupee Indian currency notes and thereby counterfeited Indian currency notes of that denomination to the value of about one lakh of rupees, within the jurisdiction of the Sub Divisional Magistrate's Court, and that they took them for uttering to Madras City of Tamil Nadu State where they were engaged in trafficking in those counterfeit notes. The Madras City Police had already registered a Crime No. 1356 of 1971 in Royapettah Police Station on 14 61971 against the same 38 accused persons for the identical offences. Investigations in these two crimes have been in progress simultaneously in both the States. Accused Nos. 1, 3, 8, 9,10,11,14, 22, 23. 24, 26, 27, 33 and 34 had already been apprehended and they are now in custody at Madras and some others are either in custody or on bail in the State. While the investigation is in progress the Deputy Superintendent of Police filed two reports one on 11-2-1972 and the other on 29-4-1972, inter alia, requesting the lower Court to forward the records and the material objects in the crime before it for incorporating the same to the Crime No. 1356 of 1971 registered at Royapettah Police Station of the Madras City so that the prosecution against the accused persons could be launched and enquired into by the Court in the Madras City. Some of the accused persons did not raise any objection in complying with the request asked for by the Deputy Superintendent in his reports, but many other accused persons objected to the prayer of the Deputy Superintendent being granted on the basis of the reports. 3. The main line of argument advanced on behalf of those accused persons is that the lower court having taken cognizance of the offence against the accused persons, there is no provision under law to transfer the records and the material objects to the Madras Court on the application of the investigating agency and that the remedy of the prosecution if any would be under the provisions of S.185 (2) of the Criminal Procedure Code to move the Madras High Court within the jurisdiction of which the Magistrate of Madras City had taken cognizance of the offence in the first instance. So according to the learned counsel who appeared for the accused in these petitions the request made by be Deputy Superintendent in his two reports cannot be complied with. So it is argued that the order passed by the lower court on those reports shall not be interfered with. 4. It is not disputed that both the Kerala Court as well as the Madras Court have jurisdiction to try the case on hand. The offence was partly committed in Kerala and partly in the Madras City. It will be clear from the tacts of the case revealed so far that there will not be any lack of jurisdiction either for the lower court or the court in the Madras City for trying the case in view of the provisions of S.180 or 182. Cr. PC. Bat the question is whether S.185 (2) Cr. PC. has any application to the case on hand. For the sake of elucidating the argument advanced, it is necessary to quote S.185 Cr. PC. It reads: "185. (1) Whenever a question arises as to which of two or more Courts subordinate to the same High Court ought to inquire into or try any offence, it shall be decided by that High Court. For the sake of elucidating the argument advanced, it is necessary to quote S.185 Cr. PC. It reads: "185. (1) Whenever a question arises as to which of two or more Courts subordinate to the same High Court ought to inquire into or try any offence, it shall be decided by that High Court. (2) Where two or more Courts not subordinate to the same High Court have taken, cognizance of the same offence, the High Court, within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced; may direct the trial of such offender to be held in any Court subordinate to it, and if it so decides, all other proceedings against such person in respect of such offence shall be discontinued. If such High Court upon the matter having been brought to its notice, does not so decide any other High Court, within the local limits of whose appellate criminal jurisdiction such Proceedings are pending; may give a like direction, and upon its so doing all other such proceedings shall be discontinued." 5. It will appear from the provisions contained in Sub-section (1) of S.185 that they do not fetter in any way the discretion of the High Court by enjoining any condition precedent for deciding as to in which of the two or more court subordinate to the same High Court, the enquiry or trial shall proceed. But under sub-section (2) of S.185. the prime requisite for interference is as to where the proceedings "were first commenced." The concept of an earliest commencement of proceeding as enjoined in sub-section (2) is not there in subsection (1). The Legislature has no intention to introduce the concept of "were first commenced" in sub-section (1). So if a trial of the case is to take place in Madras City, it may be incumbent upon the prosecution to move the High Court of Madras as required by S.185 (2) as it provides "two or more courts subordinate to the same High Court have taken cognizance of the same offence. But we have not yet reached the stags of a trial of the case. The trial will commence only if two or more courts not subordinate to the same High Court have taken cognizance of the same offence. But we have not yet reached the stags of a trial of the case. The trial will commence only if two or more courts not subordinate to the same High Court have taken cognizance of the same offence. Unless therefore it is established that the lower court has taken cognizance of the offence, there is no ground for the application of sub-section (2) of S.185 to this case. 6. It is therefore necessary to consider in this case whether the lower court has taken cognizance of the offences alleged against the accused persons. There is no definition in the Code of Criminal Procedure of what is meant by taking cognizance. Taking cognizance does not involve any formal action or action of any kind but it occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. 7. Justice Imam said as follows in Narayandas Bhagvandas Madhavadas v. State of West Bengal (1959-II S.C. Appeals 268): "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 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." The Supreme Court in R. R. Chari v. State of Utter Pradesh (1951 SCR. 312 at page 320) quoted with approval a passage from Gopal Marwari v. Emperor (AIR. 1943 Patna 245) to the effect that the word "cognizance" was used in the Code to indicate the point when the Magistrate or judge takes judicial notice of an offence and that it was a word of indefinite import and is not perhaps always used in exactly the same sense. It is observed in Emperor v. Sourindra Mohan Chuckerbutty (ILR. 37 Calcutta 412 at page 416). "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a magistrate as such applies his mind to the suspected commission of an offence." The Supreme Court in Ajit Kumar Palit v. State of West Bengal (1964-I. S. C. Journal 75) stated: "The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means, became aware of and when used with reference to a court or judge, to take notice of judicially." Cognizance of the offence is taken in different ways by a Magistrate under S.190 Cr. P.C.: (a) Upon receiving a complaint of facts which constitute an offence; (b) Upon a report in writing of such facts made by any police officer; and (c) Upon information received from any person other than a police officer, or upon the Magistrate's own knowledge or suspicion that such offence has been committed. 8. Before a Magistrate can be said to have taken cognizance under S.190(1) (a) he must not have only applied his mind to the complaint, but must have done so for proceeding in a particular way under the subsequent provisions of Chapter XVI of the Code, under S.200 for enquiry and report. When be applies his mind not for the above purpose but for taking action of some other kind, for instance, an investigation by the police under S.156(3) or the issue of a search warrant, he cannot be said to have taken cognizance of the offence. 9. It is relevant at this stage to point out the observations made in Gopal Das Sindhi v. State of Assam (1961 (1) SC Journal 573). It reads as follows: " If the Magistrate had not taken cognizance of the offence on the complaint filed before him, ha was not obliged to examine the complainant on oath and the witnesses present at the time of filing of the complaint. The provisions of S.190 Cr. P. C. cannot be read to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the fact stated in the complaint discloses the commission of any offence. The word 'may' in S.190 cannot be construed to mean 'must'. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under S.156(3) to the police for investigation. 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 be would have to proceed in the manner provided by Chapter XVI of the Code. When a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI of the Code but for taking action of some other kind, e.g.. If he does so then be would have to proceed in the manner provided by Chapter XVI of the Code. When a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI of the Code but for taking action of some other kind, e.g.. ordering investigation under S.156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence". So the "taking of cognizance" is a mental act. It is also a judicial act. It means ordinarily that the concerned Magistrate has come to the conclusion that there is a case to be enquired into. The decision to take cognizance can be taken at any stage, and it depends upon the facts and circumstances of each particular case. It is only after consideration of the result of an enquiry under S.202 of the Code that the Magistrate has to decide, whether he should take cognizance or not. In Jamuna Singh v. Bhadai Sah (1964-5 SCR. 37), the question was whether the Magistrate would have taken cognizance of an offence on a complaint under Chapter XVI of the Code of Criminal Procedure so as to enable an accused to file an appeal under S.417 (3) of the Code. In that case a private complaint was filed in the first instance under S.395 and 323 IPC. before the Magistrate-After examining the complainant on affirmation, the Magistrate directed the Sub Inspector of Police to institute a case on report. Accordingly the Sub Inspector filed a charge sheet on the strength of which the accused was committed to the Court of Session. The case ended in an acquittal before the Sessions Judge. But on appeal under S.417(3) Cr. P. C. the High Court set aside the acquittal and convicted the accused under S.395 IPC. Before the Supreme Court in appeal filed by special leave the contention was that the accused had no right of appeal as the Magistrate took cognizance of the offence under S.190(1)(b) on police report. The Supreme Court held that the Magistrate had already taken cognizance of the offence under S.200 of the Code and the acquittal being on a private complaint the accused had a right of appeal under S.417(3) Cr. The Supreme Court held that the Magistrate had already taken cognizance of the offence under S.200 of the Code and the acquittal being on a private complaint the accused had a right of appeal under S.417(3) Cr. P. C. It was clearly seen from the facts of the case that the Magistrate passed the order on the complaint on examination of the complainant on oath that the offence was cognizable. The Supreme Court stated: "Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officer's report was received. Thus the case was instituted on complaint and not on the police report submitted later. The contention therefore that the appeal did not lie under S.417 (3) must be rejected." The decision reported in Darshan Singh Ram Kishun v. State of Maharashtra (1971 (2) SC. Cases 654) is also pressed into service for the position that a Magistrate takes cognizance of the offence without any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. In that case on police report under S.190(1)(b) the Magistrate took cognizance of the offence. The facts of the case revealed that a charge sheet bad been filed by the police finally under S.173 Cr. PC. and the Magistrate took cognizance of the offence then. The charge was under S.419 and 471 read with S.468 IPC. But the Magistrate framed another charge under S.120B as well when the accused was committed to the Court of Session. The contention was that the committal order was without 'jurisdiction as the requisite sanction under S.196A(2) Cr.PC. was not obtained. The Supreme Court answered the objection by stating that the police charge did not contain the offence under S.120B and therefore the Magistrate took cognizance of the other offence only under S.419 and 471 read with S.468 IPC. The contention was that the committal order was without 'jurisdiction as the requisite sanction under S.196A(2) Cr.PC. was not obtained. The Supreme Court answered the objection by stating that the police charge did not contain the offence under S.120B and therefore the Magistrate took cognizance of the other offence only under S.419 and 471 read with S.468 IPC. Regarding the cognizance of the offences, the Supreme Court stated as follows at page 656: "As provided by S.190 of the Code of Criminal Procedure, a Magistrate may, take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report or (c) upon information received from a person other than a police officer or even upon bis own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of as offence. Cognizance, therefore; takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report." Another case cited on behalf of the accused was the judgment in Writ Petition No.316 of 1970 of the Supreme Court dated 14-12-1970 reported at page 1785 of Supreme Court Judgments, 1970-2 J. K. 276-356 published by the Supreme Court. Bar Association. Mown v. Superintendent, Special Jail, Nowgong, Assam. In that case proceedings were instituted on the complaint of one Lt. Col. Sethi as well as on an F.I R. lodged by the police later. On that basis the Magistrate issued a warrant for the production of the prisoners. It was held that the Magistrate had taken cognizance of the offence as soon as the F.I.R. was filed. In that case proceedings were instituted on the complaint of one Lt. Col. Sethi as well as on an F.I R. lodged by the police later. On that basis the Magistrate issued a warrant for the production of the prisoners. It was held that the Magistrate had taken cognizance of the offence as soon as the F.I.R. was filed. It was pointed out in that case that "Taking cognizance of an offence within the meaning of S.190 (Cr.PC.) only means that the Magistrate must apply his mind to the contents of the complaint before him for the purpose of proceeding under S.200 and the other provisions of the Code following it. It is true that in his orders dated 22nd and 23rd December 1969 he directed the Kohima police to register the case and to expedite their report. Nonetheless, the order of December 23,1969 also states that he was prima facie satisfied from the first information report produced before him that the accused therein mentioned had committed the offences with which they were charged. The issuance of warrant by him thereafter to ensure the production of the petitioner and others from different jails where they were then lodged was after he had taken cognizance of the said offences. Therefore, there is no difficulty in holding that the Magistrate bad taken cognizance of the offences either upon the complaint filed by Lt. Col. Sethi or upon the first information report produced by the police the next day before him. If he can be said to have taken cognizance on the said complaint there was no necessity for him to examine the complainant as the complaint was in writing and was by a public officer who was directed by the State Government to prosecute the petitioners and others. (See S.200, proviso (aa))." 10. These decisions indicate that a Magistrate can take cognizance of an offence under a police report. The report may be in respect of a case coming under S.170 of the Code or one coming under S.169 and 173. S.190 is the first section in the group of sections headed 'Conditions requisite for initiation of proceedings." Relating to this section, the Supreme Court observed in Abhinandan Jha v. Dinesh Mishra (AIR. 1968 SC. 117) as follows: "Sub-S. (1) of this Section (S. 190) will cover a report sent under S.173. S.190 is the first section in the group of sections headed 'Conditions requisite for initiation of proceedings." Relating to this section, the Supreme Court observed in Abhinandan Jha v. Dinesh Mishra (AIR. 1968 SC. 117) as follows: "Sub-S. (1) of this Section (S. 190) will cover a report sent under S.173. The use of the words'may take cognizance of any offence", in sub-s. (1) of S.190 in our opinion imports the exercise of a judicial discretion', and the Magistrate, who receives the report' under S.173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under S.190 (1) (b) of the Code. This will be the position, when the report under S.173, is a charge-sheet." 11. There has been no instance of a case where the Magistrate takes cognizance of an offence on the basis of a police F.I.R. made under S.190 (1) (b) unless such report is under any one of the S.169,170 and 173 of the Code. In (he case on hand there has been no such police report filed so far except the F. I. R. lodged under S.157 (1) of the Criminal Procedure Code. The lower court had no occasion to fake cognizance of any offence against the accused persons in this case, The order for house search, the remand order on production of the accused after arrest, the receipt of the Material Objects and other records for consignment into the case did not give an occasion to the Magistrate to take cognizance of the offence. It is admitted that the investigation is still in progress and some of the accused persons are absconding. The Magistrate did not exercise any judicial mind as to whether there is any prima facie case made out against the accused persons. It is admitted that the Magistrate did not issue any summons or arrest warrant to the accused in the case as such for a situation did not arise as no charge sheet or final report had been filed against them. It is admitted that the Magistrate did not issue any summons or arrest warrant to the accused in the case as such for a situation did not arise as no charge sheet or final report had been filed against them. Under the circumstances the conclusion is irresistible that the Magistrate did not take cognizance of any offence against these 38 accused persons before him and if so the provisions of S.185 (2) cannot be applied to the case at the present stage. 12. When the case is only in the stage of investigation it is not open to the court to interfere with that investigation. In this connection I may refer to certain observations made by the Judicial Committee in King Emperor v. Nazir Ahmed (AIR. 1945 Privy Council 18). Lord Porter observes at page 22 as follows: "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, at ways, of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Criminal P. C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then." 13. These observations have been approved by the Supreme Court in Rishbud and Inder Singh's case (AIR. 1955 SC. 196). In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then." 13. These observations have been approved by the Supreme Court in Rishbud and Inder Singh's case (AIR. 1955 SC. 196). At page 201, it is observed: "Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under S.154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes 'all the proceedings under the Code for the collection of evidence conducted by a police officer'." The observation was continued at page 201 after a reference to some of the provisions of Chapter XIV of the Code. It is as follows: "Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a chargesheet under S.173 It is also clear that final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police-station." These observations have been approved with equal force by the Supreme Court again in Abhinandan Jha v. Dinesh Mishra (AIR. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police-station." These observations have been approved with equal force by the Supreme Court again in Abhinandan Jha v. Dinesh Mishra (AIR. 1968 S.C.117). At page 123, the Supreme Court stated: "We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent of the nature of the opinion, so formed. The formation of the said opinion; by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority." The decision further proceeded as follows at page 124; "The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view." 14. In the light of these observations, it is not open to the court to put any obstacle in the way of the police investigation of a case. The reports filed in this case indicate that a parallel investigation is in progress in the Madras City In respect of the same accused persons for the identical offences and that materials and records gathered and collected by the police in the Kerala State are absolutely necessary for placing the charge-sheet against these accused persons before the Madras Court. That this Court has power to direct the Subordinate Courts in appropriate cases and resolve the dispute is borne out from a decision reported in 11 Cr.L.J. 69 (Oudh) which is followed in Partipal v. Dip Narain (AIR, 1955 NUC. (Patna (5952). The question whether the accused persons shall be tried in Kerala or Madras may not arise as there is no conflict of jurisdiction. (Patna (5952). The question whether the accused persons shall be tried in Kerala or Madras may not arise as there is no conflict of jurisdiction. Whether it is convenient for the accused persons to be tried at Madras or in Kerala need not be considered at this stage. So I do not propose to express any opinion as to the forum of the trial for this case. It is sufficient to point out that the Deputy Superintendent shall be entrusted with the records and other materials which are now in the custody of the lower court for the purpose of incorporating the same in the parallel crime registered at Madras, for completion of the investigation. The lower court shall take proper care that these records and Material Objects are safely packed, tied and sealed putting them in a box or otherwise so that they may be safely delivered to the Court in the Madras City where the FIR. in the parallel Crime No. 1356 of 1971 of the Royapettah Police Station is lodged. 15. In the result, both the petitions are allowed. The lower court will comply with the request made by the Deputy Superintendent of Police in his reports in accordance with the instructions contained in this order.