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Allahabad High Court · body

1979 DIGILAW 276 (ALL)

Than Singh v. State

1979-03-02

P.N.BAKSHI

body1979
JUDGMENT : P.N. Bakshi, J. A theft took place at the house of Jagannath in the night between 19/20th June, 1974. He lodged a first information report at police station Farah u/s 379 IPC on 23.6.1974. The accused were not nominated in the report. Subsequently Than Singh was arrested in connection with this offence on 30th June, 1974. Shyam Singh surrendered in court on 16.8.1974. It appears that after completing the investigation, police submitted the charge-sheet of Than Singh in court on 9-8-74. Subsequently the charge-sheet of Shyam Singh was also sent to the court on 2.9.1974. It appears that the papers summoning Than Singh were placed before the Magistrate on 2-9-1974. On that date he ordered for preparation of copies. The Ahalmad of the court then sent the chargesheet and the relevant papers to the copying section on 3rd June, 74. He received back the papers along with the copies on 25th November, 1974. It also appears that after the receipt of the charge-sheet against Shyam Singh, the papers in connection therewith were placed before the Magistrate on 6.1.1975, on which date he ordered that the, case of Shyam Singh be amalgamated with that of Than Singh. The case kept on pending before the Magistrate. It appears that on 21-9-1977 the copies were received in court and on that date the Magistrate passed an order summoning the accused on 8th November, 77. An objection was filed before the Magistrate concerned, on behalf of the accused on 28th September, 78 that since the order summoning the accused was passed by the Magistrate on 21st September, 1977, while the period of limitation for the offence in question had already expired on 20th June, 1977, the Magistrate had no jurisdiction to take cognizance of the offence. It was, therefore, prayed that the case be dismissed and the accused be discharged. This objection did not find favour with the Magistrate. It was dismissed on 6th December, 78 ; hence this revision. 2. I have heard the Learned Counsel for the parties in detail and have also perused the impugned order, and the record of the case. Several cases have been cited before me. In all these cases cognizance had been taken on the basis of a complaint by the Magistrate u/s 190(1)(a) Code of Criminal Procedure. 2. I have heard the Learned Counsel for the parties in detail and have also perused the impugned order, and the record of the case. Several cases have been cited before me. In all these cases cognizance had been taken on the basis of a complaint by the Magistrate u/s 190(1)(a) Code of Criminal Procedure. In any case the decisions in these cases will throw light upon the legal question involved in this case. 3. In Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, AIR 1950 Cal 437 Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, it has been observed as follows: What is taking cognizance has not been defined in the Criminal Procedure Code 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. The Calcutta case has been approved by the Supreme Court in R.R. Chari Vs. The State of Uttar Pradesh, AIR 1951 SC 207 and thereafter in Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, AIR 1959 SC 1118 and finally in Gopal Das Sindhi v. State of Assam AIR 1961 SC 986 . In Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, AIR 1972 SC 2639 , the Magistrate had directed investigation u/s 156(3) Code of Criminal Procedure. The Supreme Court held that this did not amount to taking cognizance of an offence. 4. In the latest decision of the Supreme Court reported in Devarapalli Lakshminaryana Reddy v. Narain Reddy AIR 1976 SC 1972, their lordships while dealing with the question of cognizance u/s 190(1) Code of Criminal Procedure have observed as follows: Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action if any taken by the Magistrate. 5. 5. Applying the above principle in the instant case, the position appears to be that the charge-sheet and the relevant papers were put up before the Magistrate on 2nd September, 1974. On the form of list of documents, I find that an order had been passed by the Chief Judicial Magistrate on 2nd September, 1974 directing preparation of copies. 6. Counsel for the applicant has argued that the words 'prepare copies, C.J.M. are rubber stamped. The Chief Judicial Magistrate has merely signed the same. This does not indicate that he applied his mind to the facts of the case. As such this order cannot be interpreted to mean that the Magistrate had taken cognizance of the offence. 7. u/s 170 Code of Criminal Procedure if upon investigation it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground for proceeding against the accused, he shall forward the accused in custody to the Magistrate empowered to take cognizance of the offence upon a police report to try the case or to commit him for trial. u/s 173 a charge-sheet is submitted to the Magistrate empowered to take cognizance of the offence. 8. u/s 173(7) Code of Criminal Procedure it has been laid down that when the police officer investigating the case finds it convenient, so to do, he may furnish to the accused copies of all or any of the documents, referred to in Sub-section (5). u/s 190(1)(b) Code of Criminal Procedure the Magistrate may take cognizance of an offence upon a police report. u/s 204(1) Code of Criminal Procedure, if in the event of the Magistrate taking cognizance of the offence; there is sufficient ground for proceeding, he shall issue summons for the attendance of the accused in a summons case and warrant for the production of the accused in a warrants case. The instance case is a warrants case. 9. u/s 207 Code of Criminal Procedure in a case where the proceeding had been instituted on a police report, the Magistrate shall furnish without-the delay to the accused free of cost copy of the documents, mentioned therein. 10. The instance case is a warrants case. 9. u/s 207 Code of Criminal Procedure in a case where the proceeding had been instituted on a police report, the Magistrate shall furnish without-the delay to the accused free of cost copy of the documents, mentioned therein. 10. u/s 238 Code of Criminal Procedure when in a warrants case instituted on a police report, the accused appears or is brought before a Magistrate on the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207 Code of Criminal Procedure. He, thereafter proceeds with the framing of the charge and the trial of the case. These are the relevant sections of the Criminal Procedure Code, which deal with the question in hand in a warrants case instituted on a police report. The supply of copies free of cost to the accused is a statutory duty cast upon the Magistrate. He cannot commence the trial unless these copies have been furnished to the accused. But the necessity of furnishing these copies can only arise when the Magistrate has taken cognizance of the offence and finds that there is sufficient ground for proceeding against the accused. In other words before passing an order for the preparation of the copies, the Magistrate must satisfy himself from the papers received by him that it is a fit case in which he should take cognizance and proceed against the accused. Taking of cognizance by the Magistrate is optional. He is not in law bound to take cognizance of an offence merely because a police report has been submitted before him. Preparation of copies of the police papers would be an exercise in futility if the Magistrate without applying his mind to the facts of the case makes an order to that effect. In other words, it is only when a Magistrate is satisfied from the perusal of the charge-sheet and the other relevant documents that there are sufficient grounds for proceeding against the accused then he will pass an order for preparation of copies. In my opinion, therefore, the order passed by the Magistrate to “prepare copies” implies that he has applied his mind to the facts of the case and has taken cognizance of the offence, otherwise he would not indulge in passing such an order which would be wholly unnecessary and superfluous. 11. In my opinion, therefore, the order passed by the Magistrate to “prepare copies” implies that he has applied his mind to the facts of the case and has taken cognizance of the offence, otherwise he would not indulge in passing such an order which would be wholly unnecessary and superfluous. 11. In my opinion, therefore, the circumstances of the case justify a reasonable inference that the Magistrate took cognizance of the offence on 22nd September, 1974, when he passed the order for the preparation of copies. Legal procedure is cumbersome ; law's delay are irritable and unfortunate. The report was lodged in June 1974. 4 years have passed by, yet the criminal prosecution is in its infancy. Be that as it may, I have no other alternative but to dismiss the revision and to direct the Magistrate to proceed with the trial as expeditiously as possible. 12. With the above observation this revision is hereby dismissed.