Vali v. Vali Mohd. — 1979 DIGILAW 126 (RAJ)

S.K. MAL LODHA, J.~The petitioners Vali Mohammad Sakka and Basir son of Karim have filed this petition for revision under sections 401/397 Cr.P.C. against the order of the learned Additional Sessions Judge, Hanuman-garh dated August 6, 1977, by which he directed the Judicial Magistrate, Hanu-mangarh to take cognizance against them for an offence under section 302 IPC and to summon them. 2. Non-petitioner No. 1 Vali Mohammad son of Nagar is complainant. After recording First Information Report, regarding an offence of murder, at the instance of complainant, and completing the investigation and arrest of one Idrish, the S.H.O. Flanumangarh submitted a challan for commitment of the case in the court of Judicial Magistrate, Hanumangarh on December 29, 1976. The complainant submitted a protest petition in respect of the same occurrence to the Judicial Magistrate implicating four accused persons including Idrish against whom challan was submitted by the police. The learned Judicial Magistrate, dismissed the protest petition on May 3, 1977 holding that cognizance cannot be taken against them. He observed that there were no sufficient grounds at all to proceed against the petitioners and Karim. 3. Feeling aggrieved by the order dismissing the protest petition, the complainant preferred a revision petition. 4. The learned Additional Sessions Judge, Hanumangarh, by his order dated August 6, 1977, accepted the revision petition against the petitioners and directed the Judicial Magistrate, Hanumangarh to take cognizance of offence under section 302 I.P.C. against the petitioners and to summon them. The revision was, however, not accepted against Karim. Against that order of the learned Additional Sessions Judge, Hanumangarh dated August 6, 1977, the petitioners have preferred this revision petition. 5. It was Contended by Mr. D. K. Purohit that the order of the Judicial Magistrate dated May 3, 1977 amounted to a dismissal of the complaint under section 203 Cr.P.C. and such order could only be set aside under section 398 Cr.P.C. Under section 398 Cr.P.C, the only order, according to the learned counsel, that could be passed was to direct the Judicial Magistrate to make fur-ther inquiry into the complaint and such direction could only be made after giving an opportunity to the concerned persons, to show cause as to why such direction should not be made. He urged that the learned Additional Sessions Judge had no jurisdiction to give a direction to the Judicial Magistrate to take cognizance of the offence. He urged that the learned Additional Sessions Judge had no jurisdiction to give a direction to the Judicial Magistrate to take cognizance of the offence. According to him, taking cognizance of an offence is an executive act and not a judicial one. It is not obligatory on the Magistrate to take cognizance of an offence and the cognizance of an offence can only be taken once which the learned Magistrate has already done against the accused Idrish. He further submitted that on the facts and in the circumstances, relied on by the learned Judicial Magistrate, Hanumangarh in his order dated May 3, 1977, dismissal of the protest petition was proper and the learned Additional Sessions Judge was not justified in interfering with that order in revision, for, the view taken by the Judicial Magistrate being a possible view. 6. The learned Public Prosecutor supported the order under revision. According to him, the order of the learned Judicial Magistrate is non-est in law and that the learned Additional Sessions Judge has not taken cognizance of any offence, he has merely sent the case back to the Judicial Magistrate with a direction to him to take cognizance of offence under section 302 I.P.C. against the petitioners and to summon them. Thus, according to the learned Public Prosecutor, the petitioners will have an opportunity to contest before the Judicial Magistrate and, therefore, non-issuance of notice in revision is not material. 7. Mr. Bhagwati Prasad, learned counsel for the non-petitioner No. 1 (complainant) submitted that cognizance of offence had already been taken by the Judicial Magistrate against the accused Idrish. The protest petition was nothing but a sort of complaint to the Magistrate against the petitioners and Karim and he was required to decide it judicially. He, therefore, urged that as it was a judicial order, revision against that order, by the complainant was justified. According to the learned counsel, it is only the executive or administrative order which is not revisable. When the protest petition was dismissed, the order tantamount to refusing to take cognizance against the petitioners and Karim. It was not necessary to give an opportunity to the petitioners of showing cause under section 398 Cr.P.C. inasmuch as proviso to that section only applies to a person accused of an offence who has been discharged and question of discharge arises after summoning of accused. It was not necessary to give an opportunity to the petitioners of showing cause under section 398 Cr.P.C. inasmuch as proviso to that section only applies to a person accused of an offence who has been discharged and question of discharge arises after summoning of accused. Learned Public Prosecutor urged that section 239 Cr.P.C. contains provisions relating to discharge and these provisions apply when an accused person is present before the court, and in this case, that stage has not reached as yet, because it is only after taking cognizance that the petitioners would appear before the court. 8. In view of the submissions, made by the learned counsel for the parties the interesting questions of law that arise are: (1) Whether the order of the Judicial Magistrate dated May 3, 1977, declining to take cognizance against the petitioners, whereby dismissing the protest petition, filed by the complainant, is a judicial order, which could be revised by the learned Additional Sessions Judge in revision ? (2) Whether the order of the Judicial Magistrate dated May 3, 1977, amounted to dismissal of complaint under sec. 203 Cr.P.C. or discharge of the petitioners accused of offence under section 302 I. P. C. and if the answar to this question is in affirmative, only order that could be passed by the learned. Additional Sessions Judge was to direct the Judicial Magistrate to make further inquiry into the complaint ? (3) Whether it was necessary for the learned Additional Sessions Judge before making the order in revision to have afforded an opportunity to show cause to the petitioners, and (4) Whether on the facts and in the circumstances of the case, the learned Additional Sessions Judge was justified in directing the Judicial Magistrate to take cognizance of offence under section 302 I.P.C. against the petitioners and to summon them? 9. For a better appreciation of the arguments, it is necessary to notice the relevant provisions of the Code of Criminal Procedure. 10. Sec. 169 Cr.P.C. provides for release of accused when evidence is deficient. It relates to cases in which it is found that there is no sufficient evidence for forwarding the accused to a Magistrate and consequently no person is sent up for trial. Sec. 170 Cr.P.C. deals with cases to be sent to Magistrate when evidence is sufficient. 10. Sec. 169 Cr.P.C. provides for release of accused when evidence is deficient. It relates to cases in which it is found that there is no sufficient evidence for forwarding the accused to a Magistrate and consequently no person is sent up for trial. Sec. 170 Cr.P.C. deals with cases to be sent to Magistrate when evidence is sufficient. Thus, it applies to cases in which upon investigation the accused is sent up for trial. 11. Sec. 173 Cr.P.C. provides for report after the completion of investigation and showing the results of investigation. Sec. 173(2)(i) Cr.P.C, amongst others, provides that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating particulars mentioned in it. Sub-sec. (4) of sec. 173 Cr.P.C. lays-down that whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. 12. Sec. 190 Cr. P.C. provides for taking cognizance of offences by Magistrates. The expression take cognizance of any offence used in sec. 190(1) means the taking, notice of any offence in a judicial capacity with a view to the initiation of judicial proceedings against the offender in respect of that offence. 13. Sec. 203 Cr.P.C. deals with dismissal of complaint without issuing a process. Sec. 209 provides for commitment of case to Court of Session when offence is triable exclusively by it. The material portion of sec. 209 is as under : "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 : (b) .................. (c) .................. (d).................." 14. Sec. 239 Cr.P.C. provides for discharge of accused under the circumstances, specified in the section. Before discharging the accused under this section, following preliminaries have to be performed : (1) consideration of the police report and the documents sent with it under sec. (c) .................. (d).................." 14. Sec. 239 Cr.P.C. provides for discharge of accused under the circumstances, specified in the section. Before discharging the accused under this section, following preliminaries have to be performed : (1) consideration of the police report and the documents sent with it under sec. 173 Cr.P.C; (2) examination, if any, of the accused as the Magistrate thinks necessary; (3) giving prosecution and the accused an opportunity of being heard; and (4) thereafter to consider whether the charge is groundless. Thus, the Magistrate before either passing an order of discharge under this section, or framing a charge under sec. 240 has first to determine whether the material before him furnishes a reasonable basis for foundation of accusation. It is clear that sec. 239 Cr.P.C. applies when the accused is present before the Court. In this case, this stage was not reached, for, the protest petition filed by complainant was dismissed by the learned Judicial Magistrate on May 3, 1977. 15. Legal Remembrancer vs. Abani Kumar (1) was approved by their Lordships of the Supreme Court in R. R. Chari vs. State of U.P.(2). In Legal Remembrancers case (1) it was observed : "What is taking cognizance has not been defined in the Cr.P.C. & 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(l)(a), Cr.P.C. he must not only have applied his mind to the contents of the petn. but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap. proceeding under sec. 200 and thereafter sending it for inquiry and report u/s 202. When the Mag. applies his mind not for the purpose of proceeding under the subsequent sections of this Chap. 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." In Darshan Singh vs. State of Maharashtra(3), while considering the provisions of sec. 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." In Darshan Singh vs. State of Maharashtra(3), while considering the provisions of sec. 190 Cr.P.C, it was observed as under : "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. Thereafter, 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." Two other important sections, which deserve notice are sections 397 and 398 Cr.P.C. Section 397 Cr.P.C. empowers the High Court or any Sessions Judge to call for records of inferior Criminal Courts and examine them for the purpose of satisfying itself or himself as to whether a sentence, finding or order of such inferior court is legal, correct or proper, or whether the proceedings of such inferior court are regular. Section 398 Cr.P.C. confers power on the High Court or Sessions Judge to order further inquiry. This section relates to proceedings antecedent and preliminary to trials, the object of which is to ascertain whether or not a trial should take place. Trial begins when the accused is charged and called on to answer, and then the question before the Court is whether the accused is to be acquitted or convicted, not whether the complaint is to be dismissed or the accused discharged. Order under section 398 Cr.P.C. can only be for further inquiry. Proviso to section 398 Cr.P.C. lays-down that any direction under section 398 for further inquiry into the case of any person who has been discharged should not be made unless such person has had an opportunity of showing cause why such direction should not be made. 16. Order under section 398 Cr.P.C. can only be for further inquiry. Proviso to section 398 Cr.P.C. lays-down that any direction under section 398 for further inquiry into the case of any person who has been discharged should not be made unless such person has had an opportunity of showing cause why such direction should not be made. 16. In the light of these provisions, it is to be considered whether the order of the learned Judicial Magistrate dismissing the protest petition on May 3, 1977, holding that cognizance cannot be taken against the petitioners and Karim, is a judicial order or not. If it was a judicial order, revision against that order before the learned Additional Sessions Judge, Hanumangarh was justified. 17. In Gopaldas vs. State of Assam (4), their Lordships of the Supreme Court observed: "We are unable to construe the word may in section 190 to mean-must." The view taken in Gopaldass case(4) is further strengthened by the opinion expressed by their Lordships of the Supreme Court in State of Assam vs. Abdul Noor (5), wherein it was observed: "The Magistrate can under section 190 before taking cognizance, ask for investigation by the police under section 156(3) of the Criminal Procedure Code. The Magistrate can also issue warrant for production before taking cognizance." 18. In view of these decisions, in my opinion, it is settled law that the word may used in section 190 gives a judicial discretion to the Magistrate to take cognizance on a police report or a complaint. 19. It is equally well-settled that the taking of cognizance means cognizance of offence and not offenders. Speaking for the Court, Sikri, J., as he then was, in Raghubans Dubey vs. State of Bihar (6), observed as under; "In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence." In this case, the learned Judicial Magistrate took cognizance of the offence under section 302 I.P.C. against Idrish after submission of the charge-sheet under Sec. 173(2) Cr.P.C, The protest petition was filed by the complainant on January 3, 1977 stating that the police has not submitted any challan against the petitioners and Karim, though there is evidence against them having committed an offence under section 302 I.P.C. It follows, therefore, that the proceedings were pending before the learned Judicial Magistrate when the protest petition was filed. The learned Judicial Magistrate was to find out who were the other offenders involved in the commission of the offence of murder. While doing so, he was required to apply his mind whether from the evidence, prima facie, case of murder against the petitioners and Karim is made out or not. After examining the papers which were submitted with the charge-sheet, he passed the order that there are no sufficient grounds to proceed against them. In these circumstances, the order of the learned Judicial Magistrate dated May 3, 1977 declining to take cognizance against the petitioners and Karim whereby dismissing the protest petition, filed by the complainant, was a judicial order. 20. Under section 397 Cr.P.C., the Sessions Judge has been empowered to examine the record of any proceedings before any inferior criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any order, passed and as to the regularity of any proceedings of such inferior court. 21. The order passed by the learned Judicial Magistrate dated May 3, 1977, refusing to take cognizance against the petitioners, being a judicial one, could be revised by the learned Additional Sessions Judge. As the petitioners could not be summoned before taking cognizance the question of discharging them vide order dated May 3, 1977, does not arise. In Chandra Deo vs. Prakash Chandra (7), it was observed as under : "The entire scheme of Ch. XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued." 22. In other words, when the learned Judicial Magistrate dismissed the protest petition, it cannot be said that the petitioners were discharged and when there was no discharge. XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued." 22. In other words, when the learned Judicial Magistrate dismissed the protest petition, it cannot be said that the petitioners were discharged and when there was no discharge. Sec. 398 Cr.P.C. is not attracted, for, under sec. 398 Cr.P.C. an order for further inquiry can only be made, inter alia, into the case of any person accused of offence, who has been discharged. The order of the Judicial Magistrate, dismissing the protest petition or declining to take cognizance against the petitioners and Karim does not tantamount to discharging them and, therefore, I am unable to agree with the learned counsel for the petitioners that the order dated May 3, 1977 amounted to discharge of the petitioners accused of offence under sec. 302 I.P.C. and that the only order that could be passed by the learned Additional Sessions Judge was to direct the Judicial Magistrate to make further inquiry into the complaint. It follows, therefore, that it was not necessary for the learned Additional Sessions Judge to, have afforded an opportunity of showing cause to the petitioners as envisaged by sec. 398 Cr. P. C. 23. The learned Additional Sessions Judge took note of the fact that in, the first information report, the names of the petitioners as well as Karim were mentioned. He was of the opinion that the charge-sheet against the petitioners should have been submitted as the statements of Vali Mohammad (complainant) Khusi Mohammad and Kamal recorded by the police show that the petitioners had participated in the commission of the offence of murder. He was further of the opinion that refusal of the learned Judicial Magistrate to take cognizance of offence against the petitioners was illegal and improper. In these circumstances, the learned Additional Sessions Judge was not wrong when he directed the Judicial Magistrate to take cognizance against the petitioners and to summon them. I am not satisfied that the order of the learned Additional Sessions Judge, in the facts and circumstances of the case, is illegal, improper or incorrect. 24. Some authorities, other than those which have already been referred to hereinabove, were also cited at the bar by the learned counsel for the parties. I am not satisfied that the order of the learned Additional Sessions Judge, in the facts and circumstances of the case, is illegal, improper or incorrect. 24. Some authorities, other than those which have already been referred to hereinabove, were also cited at the bar by the learned counsel for the parties. It is not necessary to discuss them, for, it will unnecessarily encumber the judgment as they are not nearer home. 25. The net result is that answer to the questions, which I have formulated above, are these : (1) the order passed by the Judicial Magistrate on May 3, 1977, declin-ing to take cognizance against the petitioners and dismissing the protest petition filed by the complainant is a judicial order and it could be revised in revision; (2) the order of the Judicial Magistrate dated May 3, 1977 does not amount to dismissal of complaint under sec. 203 Cr.P.C. or discharge of the petitioners. In these circumstances, the question of directing the Judicial Magistrate to make further inquiry into the complaint, does not arise; (3) it was not necessary for the learned Additional Sessions Judge to have issued notice to the petitioners before passing the order under revision; (4) on the basis of the material, that was before the learned Additional Sessions Judge, he was justified in directing the Judicial Magistrate to take cognizance of offence under sec. 302, I.P.C. against the petitioners and to summon them. 26. All the contentions raised by the learned counsel for the petitioners, are, therefore, devoid of force. 27. The result is that this revision petition has no force and it is accordingly, dismissed. 28. Before parting with the case, on the basis of the decisions reported in Sanjay Gandhi vs. Union of India (8) and Hare Ram vs. Tika Ram(9). I wish to observe that the petitioners would be at liberty to invoke the provisions of sec. 227 Cr.P.C. on the case being committed to the Court of Sessions.