Pappayammal v. Arumugham and Others, Accused — 1978 DIGILAW 73 (MAD)

Judgment :- This revision petition has been preferred against the order of the learned Judicial Second Class Magistrate of Dharmapuri dismissing the petition C.M.P. No. 3426/77 filed by the revision petitioner in P.R.C. No. 17 of 1977 praying that the approvers in the aforesaid murder case should be examined only by the Magistrate who took cognizance of the offence and not by the Judicial Second Class Magistrate of Dharmapuri to whom the case had been transferred by the orders of this Court or in the alternative without examining the approvers, the case should be committed to the Sessions Court. 2. The revision petitioner is the widow of the deceased Palaniappan who was murdered on 24-6-1974 at about 10 p.m. A charge sheet was laid before the Judicial Second Class Magistrate No. II, Salem against the respondents for offences under Sections 120-B, 302 read with S. 34, 341 and 201 I.P.C. and under S. 3(1) read with S. 25 of the Indian Arms Act. Eventually, the case was transferred by the orders of this Court to the file of the Judicial Second Class Magistrate of Dharmapuri and is pending on his file as P.R.C. 17 of 1977. Three persons have been taken as approvers in the aforesaid case. When the learned Magistrate was about to examine the approvers, the petition C.M.P. No. 3426 of 1977 was filed contending that the learned Judicial Second Class Magistrate to whom the case has been transferred cannot examine the approvers for it is only the Magistrate who took cognizance of the case, namely, the Judicial Second Class Magistrate No. II, Salem, could examine the approvers. This objection was overruled by the learned Magistrate. Hence this revision petition. 3. Section 209 of the Cr.P.C. states : When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall.(a) Commit the case to the Court of Session; 4. Section 306(4) of the Cr.P.C. states : Every person accepting a tender of pardon made under sub-sec. (1) :- (a) shall be examined as a witness in the Court by the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (1) :- (a) shall be examined as a witness in the Court by the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. 5. Sub-sec. (5) of S. 306 states : "Where a person has accepted a tender of pardon made under sub-sec. (1) and has been examined under sub-sec. (4) the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, - (a) commit it for trial - (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952, if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself." * Since the sub-sec. (4) of S. 306 stipulates that every person accepting a tender of pardon made under sub-sec. (1) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, it has been contended by Mr. Kannan, learned counsel for the revision Petitioner that only the Judicial Second Class Magistrate No. II, Salem before whom the charge sheet was laid and who took cognizance of the case could examine the approvers in the case and not the Judicial Second Class Magistrate, Dharmapuri to whom the case was eventually transferred. It is necessary therefore to consider what exactly is the connotation of the term "taking cognizance of the offence." Another question that arises for determination is whether once a case is taken cognizance of by a particular Magistrate no other Court or Magistrate could take cognizance once again of the offence. 6. It has been observed in Legal Remembrancer v. Abani Kumar 1950 AIR(Cal) 437) as follows :- "What is 'taking cognizance' has not been defined in the Criminal Procedure Code ..... 6. It has been observed in Legal Remembrancer v. Abani Kumar 1950 AIR(Cal) 437) as follows :- "What is 'taking cognizance' has not been defined in the Criminal Procedure Code ..... It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Cr.P.C., 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." * In Shivangowda v. Veerappa 1964 AIR(Mys) 129) : 1964 (2) CrLJ 41) it has been held that : "Taking cognizance is a mental act. It is also a judicial act. Taking cognizance ordinarily means that the concerned Magistrate has come to the conclusion that there is a case to be enquired into." * Of course as has been held in State v. Shankar, 1959 AIR(Bom) 437 (439) : 1959 CrLJ 1153) taking of cognizance is a different thing from initiattion of proceedings and cognizance can be said to have been taken only when the Magistrate after having applied his mind to the report alleging an offence, himself does something for proceeding under the subsequent provisions of the Code. 7. In Ramlakhan v. Rameshwar 1975 CrLJ 866 ) (Pat) it has been observed as follows : "'Cognizance' means to apply the mind for the purpose of taking cognizance in respect of facts constituting the offence. If the Magistrate applies his mind not for the purpose of taking action under Chap. XVI but for any other purpose, then he cannot be said to have taken cognizance of the offence under S. 190(1) of the Code." * 8. The observations in Legal Remembrancer v. Abani Kumar 1950 AIR(Cal) 437) were approved by the Supreme Court in R. R. Chari v. State of Uttar Pradesh (1951-1 Mad LJ 617) : 52 CrLJ 775) and in Narayandas Bhagwandas Madhavdas v. State of West Bengal (1960- 1 SCR 93) : 1959 CrLJ 1368 ) and also in Gopaldas v. State of Assam (1961 Andh LT 392) : (1961- 2 CrLJ 39) (SC). Taking cognizance does not involve any formal action or indeed action of any kind. It takes place as soon as the Magistrate applies his mind to the suspected commission of the offence. Taking cognizance does not involve any formal action or indeed action of any kind. It takes place as soon as the Magistrate applies his mind to the suspected commission of the offence. (vide Michu Bagh v. K. Sadangi 1968 CrLJ 1246), (Orissa). The Supreme Court in Dharshan Singh v. State of Maharashtra has observed as follows :- "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 an 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." * Undoubtedly, the learned Second Class Magistrate No. II, Salem before whom the charge sheet in this case was filed had taken cognizance of the offence. 9. The question is whether the Magistrate to whom the case was subsequently transferred can also be said to be a Magistrate taking cognizance or in other words, whether cognizance of the offence can be taken again by another Magistrate or Court. Mr. Kannan, learned counsel for the revision petitioner contends that once cognizance is taken by a Magistrate, there cannot be taking of cognizance again by any other Magistrate. In support of this contention, Mr. Kannan has relied on the decision in Kitti v. Thammaiah Setty 1967 AIR(Mys) 243) : 1967 CrLJ 1667) where it was observed that once such cognizance is taken, there cannot be another order taking cognizance in the matter. Yet another decision relied on by the learned counsel for the revision petitioner is S. N. Dubey v. Devikant Jha 1971 AIR(Pat) 15) : 1971 CrLJ 77 ). In that decision it was observed that once cognizance of an offence is taken, there is no question of taking cognizance afresh. In that case a complaint laid before a Magistrate was sent to the Sub-Divisional Magistrate for disposal and the Sub-Divisional Magistrate examined the complainant on solemn affirmation and referred the matter for enquiry to a First Class Magistrate. In that decision it was observed that once cognizance of an offence is taken, there is no question of taking cognizance afresh. In that case a complaint laid before a Magistrate was sent to the Sub-Divisional Magistrate for disposal and the Sub-Divisional Magistrate examined the complainant on solemn affirmation and referred the matter for enquiry to a First Class Magistrate. The first Class Magistrate passed an order taking cognizance of the offence and transferred the case to the Court of Munsif-cum-First Class Magistrate for disposal. That order was challenged on the ground that the First Class Magistrate to whom the complaint was sent by the Sub Divisional Magistrate for enquiry had no jurisdiction to pass the impugned order.It was held by a single Judge of the Patna High Court that once cognizance of an offence is taken there is no question of taking cognizance afresh and the order of the First Class Magistrate to the effect "cognizance is taken" has no significance inasmuch as cognizance was already taken earlier by the Sub Divisional Magistrate and that the order simply transfers the case to some other Magistrate for trial and is to be treated as an order passed under Section 192 of the Code. The learned Judge further observed that inasmuch as S. 192 of the Cr.P.C. says that (1) any Chief Presidency Magistrate, District Magistrate or Sub Divisional Magistrate may transfer any case, of which he has taken cognizance, for enquiry or trial, to any Magistrate subordinate to him and (2) any District Magistrate may empower any Magistrate of the First Class who has taken cognizance of any case, to transfer it for enquiry or trial to any other specified Magistrate in his district who is competent under the Code to try the accused or commit him for trial and such Magistrate may dispose of the case accordingly, the First Class Magistrate can transfer to another Magistrate only a case of which he has taken cognizance, but he cannot transfer a case of which he himself has not taken cognizance unless he acts as a successor in office of the Magistrate who has taken cognizance and the First Class Magistrate's power of transferring a case was restricted to the cases of which he himself has taken cognizance, but since in that case cognizance was taken by the Sub Divisional Magistrate only the Sub Divisional Magistrate or his successor in office by virtue of S. 559 of the Code could pass an order under S. 192 of the Code. But then, in Bhat v. Emperor 1931 AIR(Bom) 517), it has been held that the power to try a case necessarily includes the power to take cognizance. In my view, it cannot be said that when a Magistrate has taken cognizance of an offence and the case is transferred to another Magistrate, the transferee Magistrate proceeds according to Chap. XVI but does not take cognizance of the offence. He should necessarily take cognizance of the offence before proceeding under Chap. XVI. In my view, it cannot be said that when a Magistrate has taken cognizance of an offence and the case is transferred to another Magistrate, the transferee Magistrate proceeds according to Chap. XVI but does not take cognizance of the offence. He should necessarily take cognizance of the offence before proceeding under Chap. XVI. For example a Sessions Court does not take cognizance of an offence without the case being committed to it for S. 193 Cr.P.C. says "except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." * When a case is committed to a Court of Session by a Magistrate, the Sessions Court takes cognizance of the offence, even though the Magistrate who committed the case had already taken cognizance of the offence. Therefore, it cannot be said as a general rule, that once cognizance is taken by a Magistrate, no other Magistrate or Court could again take cognizance of the offence. The expression "taken cognizance" in its broader literal sense means taking notice of an offence and does not involve any formal action or indeed action of any kind, but occurs as son as the Magistrate applies his mind to the suspected commission of an offence before he could proceed with the enquiry or trial."Cognizance" is defined in Wharton's Law Lexicon (Fourteenth Edition) as taking note judicially. Therefore, a transferee Magistrate has to take cognizance of the offence before he could proceed to enquire into it or to proceed with a trial in respect of the offence. Therefore, in this case, in my view, the expression "the court of the Magistrate taking cognizance of the offence" occurring in sub-sec. (4) (a) of S. 306 of the Cr.P.C. would also include a Magistrate to whom the case is transferred for enquiry or trial. Hence, it is not necessary that it is only the Magistrate who took initial cognizance of the offence on the filing of the charge-sheet before him should examine the approver or approvers and not the Magistrate to whom the case is transferred for enquiry. Hence, it is not necessary that it is only the Magistrate who took initial cognizance of the offence on the filing of the charge-sheet before him should examine the approver or approvers and not the Magistrate to whom the case is transferred for enquiry. Therefore, the order of the learned Judicial Second Class Magistrate of Dharmapuri is quite correct and I see no ground to interfere with it. This revision petition is dismissed. 10. The learned counsel for the petitioner made an oral application for granting leave to appeal before the Supreme Court and the learned counsel for the first accused opposes the prayer. For granting leave under Article 134(1)(c) of the Constitution the petitioner may file an application and such an application will be considered on its merits.