Judgment : The above petition is filed by the petitioners who figure as accused 1 to 3 in C. C. No. 399 of 1979 on the file of the Judicial Second Class Magistrate, Udumalpet, to quash the said proceedings pending before the said Magistrate. 2. It appears that the complainant is an Advocate who appeared against the first petitioner in a divorce O.P. No. 54 of 1977 in the Sub-Court, Udumalpet. It is the case of the prosecution that the petitioners on 23rd February, 1978 at 12.00 noon, entered into the house of the complainant, that the first petitioner took away a document from the table of the complainant, torn it and took away two other documents. It further appears that the petitioners used abusive language against the complaint. Enranged by this the complainant lodged a complaint before the respondent who has registered the same under sections 448, 426 and 379, Indian Penal Code. On 2nd September, 1979, the petitioners were served with summons directing them to appear before the Judicial Second Class Magistrate, Udumalpet, on 6th November, 1979 in C.C. No. 399 of 1979. It further appears from the arguments advanced by the petitioners’ Counsel that the trial Court took cognizance of the case against the petitioners under sections 448 and 426, Indian Penal Code. On 6th November, 1979, an objection was taken by the petitioners before the trial Court in Crl.M.P. No. 1587 of 1979 contending that the case as against the petitioner under sections 448 and 426, Indian Penal Code, is barred under section 468, Criminal Procedure Code. The trial Court issued notice to the Public Prosecutor. The learned Public Prosecutor appears to have filed an application before the Court below to take cognizance of the case not only under sections 448 and 426, Indian Penal Code, but also under section 380, Indian Penal Code. It isat this stage arguments were advanced before the trial Court by the respective Counsel and the trial Court has passed an order on 17th November, 1979, which is as follows: "Though this Court has taken cognizance of this case under sections 448 and 426, Indian Penal Code only, a perusal of the statements under section 162, Criminal Procedure Code, now reveals an offence under section 380, Indian Penal Code also. The defence Counsel opposes it. The other side is heard. In the interests of justice, the trial will proceed. The defence Counsel opposes it. The other side is heard. In the interests of justice, the trial will proceed. Petition is dismissed finally.“ It is only to quash the aforesaid order, as stated above, the above petition has been filed by the petitioners. 3. The contention of the petitioners before me in the affidavit filed by them is, that on 6th November, 1979, it was specifically brought to the notice of the Court by the petitioners that cognizance of the case taken against them by the Court on the Police report for the offences under sections 448 and 426, Indian Penal Code, was time-barred under the provisions of section 468 (2) (a), Criminal Procedure Code, on the ground that the offences by the petitioners are alleged to have been committed on 23rd February, 1978, while the charge-sheet by the respondent was filed only on 11th June, 1979. The Court below was convinced that it has no jurisdiction. But, still the matter was posted to the next day for hearing the Public Prosecutor. On 7th November, 1979, the second accused alone was present in Court and the matter was adjourned at the request of the Assistant Public Prosecutor to 17th November, 1979. On 17th November, 1979, the Assistant Public Prosecutor submitted before the trial Court that not only the charge against the petitioners under sections 448 and 426, Indian Penal Code, is maintainable, but also under section 380, Indian Penal Code. This argument of the Assistant Public Prosecutor has led the trial Court to pass the impugned order extracted above. 4. The argument advanced before me by Mr. Arunachalam, learned Counsel for the petitioners is that when once the trial Court has taken cognizance of the case on receipt of the police report along with the statements of the prosecution witnesses for the offences under sections 448 and 426, Indian Penal Code, it means that the Court has applied its mind to the records placed before it for proceeding further with the matter against the petitioners with reference to the offences alleged against them. According to the Counsel, the application of the mind by the trial Court is clear from the fact that the trial Court took cognizance only of those offences falling under sections 448 and 426, Indian Penal Code, after applying its mind which the Counsel contends cannot lie, for, the said charge under section 468, Criminal Procedure Code, is barred’ by limitation. In other words, the Counsel contends that if there is absolutely a bar in taking cognizance of the offence against the petitioners under sections 448 and 426, Indian Penal Code, then there cannot be a second cognizance under section 380, Indian Penal Code, by the trial Court. In any event, the Counsel contends that in so far as the first accused is concerned, even assuming that there is likely a charge under section 380, Indian Penal Code, from the averments of the First Information Report, there cannot be a charge under section 380, Indian Penal Code, in so far as against accused 2 and 3 are concerned. Under the circumstances, the Counsel appearing for the petitioners contends that the accused 2 and 3 will be absolved not only under section 448 and 426, Indian Penal Code, but also under section 380, Indian Penal Code. The other argument advanced by the learned Counsel for the petitioners is that the Magistrate having applied his mind and having taken cognizance of the case with reference to sections 448 and 426, Indian Penal Code, cannot take cognizance for a second time with respect to section 380, Indian Penal Code, against the petitioners. In order to support his argument reliance is placed by the learned Counsel for the petitioners on a decision reported in D. Lakshminarayana v. V. Narayana1. The Supreme Court has held that: ”The expression ‘taking cognizance of an offence by the Magistrate has not been defined in the Code. The ways in which such cognizance can be taken are set out in clauses (a),(b) and (c) of section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on 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. Whether the Magistrate has or has not taken cognizance of the offence will depend on 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. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of section 190(1)(a). If, instead of proceeding under Chapter IX, he has, in the judicial exercise of his discretion, taken action of some other kind, such as, issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156 (3), he cannot be said to have taken cognizance of any offence." With reference to the decision cited above, I may state that in the instant case there is no such order passed by the Magistrate for issuing a search warrant for the purpose of investigation under section 156 (3), Criminal Procedure Code. On the other hand the Magistrate has taken cognizance of the offences only under sections 448 and 426, Indian Penal Code. 5. In Darshan Singh v. Maharashtra State1, the Supreme Court, while dealing with the charge-sheet and while discussing section 190, Criminal Procedure Code, 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." 6. In Tula Ram v. Kishore Singh2, the Supreme Court, with respect to taking cognizance of an offence by a Magistrate, has observed as follows: "The question as to what is meant by taking cognizance is no longer res Integra as it has been decided by several decisions of this Court. In Tula Ram v. Kishore Singh2, the Supreme Court, with respect to taking cognizance of an offence by a Magistrate, has observed as follows: "The question as to what is meant by taking cognizance is no longer res Integra as it has been decided by several decisions of this Court. As far back as 1951, this Court in the case of R.R. Chart v. State of Uttar Pradesh3, observed as follows: "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." While considering the question in greater detail, this Court endorsed the observations of Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Baverjee4, which was to the following effect: "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), 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, proceeding under section 200 and thereafter sending it for enquiry and report under section 202. When the Magistrate applies 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, under section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." 7. Section 190 of the Code runs thus: "Section 190, clause (1): Subject to the provisions of this Chapter, any Magistrate of the First Class and any Magistrate of the Second Class, specially empowered in this behalf, under sub-section (2) may take cognizance of any offence. Section 190 of the Code runs thus: "Section 190, clause (1): Subject to the provisions of this Chapter, any Magistrate of the First Class and any Magistrate of the Second Class, specially empowered in this behalf, under sub-section (2) may take cognizance of any offence. (a) upon receiving a complaint of facts, which constitute such offence; (b) upon a police report of such facts- (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.“ It seems to us that there is no special charm or any material formula in the expression ”taking cognizance“ which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus, what section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. The Court prescribes several modes in which a complaint can be disposed of after taking cognizance. In the first place, cognizance can be taken on the basis of three circumstances: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than the police officer or upon his own knowledge, that an offence has been committed . These are the three grounds on the basis of which a’ Magistrate can take cognizance and decide to act accordingly. It would further appear that Supreme Court in the case of Narayandas Bhagwandas v. The State of West Bengal1, observed the mode in which a Magistrate could take cognizance of an offence and observed as follows: ”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), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition, but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under section 200, and thereafter sending it for inquiry report under section 202. It is now well settled by the decision of this Court in Abhinandan Jha and others v. Dinesh Mishra2, that while a Magistrate can order the police to investigate the complaint it has no power to compel the police to submit a charge-sheet on a final report being submitted by the police. In such cases a Magistrate can either order re-investigation or dispose of the complaint according to law.“ The Supreme Court has further observed at para. 32 as follows: ”(1) That a Magistrate can order investigation under section 156 (3) only at the pre-cognizance stage, that is to say, before taking cognizance under sections 190, 200, and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter XIV, he is not entitled in law to order any investigation under section 156 (3) though in cases not falling within the proviso to section 202, he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 202 of the Code. (2) Where a Magistrate chooses to take cognizance he can adopt any of the following: alternatives: (a) He can peruse the complaint and it satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused, but before he does so, he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. (3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered, is not satisfied that there are sufficient grounds for proceeding, he can dismiss the complaint. (4) Where a Magistrate orders investigation by the Police before taking cognizance under section 156 (3) of the Code and receives the report, thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described above." 8. In Asokan v. Narayanan1, a Bench of the Kerala High Court has observed at page 706 in paragraph 22 as follows: "Every criminal proceeding is started by the Magistrate taking cognizance of the offence under section 190 (1) of the Code. He can be said to have taken cognizance of it only when he has applied his mind to the allegations or facts regarding the commission of it in order to proceed in a particular way as indicated in the subsequent provisions of Chapter XV in which section 190 appears. As the three grounds mentioned in section 190 (1) are not mutually exclusive, it is open to him to take cognizance of an offence on one or more of such grounds. Piecemeal cognizance of a single offence or a series of offences committed in the course of the same transaction is not warranted by the provisions of the Code. Instances are not wanting where after a Magistrate has taken cognizance of an offence on the basis of a police report interested parties have filed private complaints to break up the essential integrity of the case. Magistrates should be alert to it. Taking cognizance is of offences and not offenders. That being the true position, a Magistrate can take cognizance of an offence even if the offenders are not known at the time. If offences are committed in the course of the same transaction and he has already taken cognizance of the same on one of the grounds mentioned in section 190 (1), if it unnecessary for him to take cognizance of the same again on one or more of the other grounds. After he has taken cognizance of an offence, if it comes to his knowledge that more persons than those implicated already are also involved in the case, he can add them to the case he has already taken up. As regards offences exclusively triable by a Court of Session, if they were committed in the course of the same transaction they can be tried at one trial if warranted by sections 234 to 239 of the Code, which deal with joinder of charges and accused. At the time of taking cognizance of such offences Magistrates should be watchful that they take cognizance of the same only once. If they do that all the anomolies which later on occur can be avoided. At the time of taking cognizance of such offences Magistrates should be watchful that they take cognizance of the same only once. If they do that all the anomolies which later on occur can be avoided. There would then be no two preliminary enquiries and trials. Different procedures are prescribed in preliminary enquiries for cases started on police report and private complaint. That should not be taken to mean that if there is a police report and a private complaint in respect of the same offences which can be tried at one trial the Magistrate should necessarily take cognizance of them twice and conduct two proceedings. On the other hand what it means is only that if the case is started on the police report the procedure prescribed for it and if the case is started on private complaint the procedure prescribed for it should be followed. That does not in any way affect the discretion vested in the Magistrate to take cognizance of the same offences only once. And to use discretion is an important power. Magistrates should realise that when they take cognizance of an offence they are discharging a judicial function. Instead of mechanically taking cognizance of the same offences twice on police report and private complaint they should when they receive a police report or a private complaint consider whether they have already taken cognizance of the same offences and whether they cannot be tried at one trial. It is high time that the prevailing practice of Magistrates indiscriminately taking cognizance more than once of the same offences which can be tried at one trial is put a stop to. If a Magistrate takes cognizance of the same offence twice on the basis of the police report and the private complaint, two preliminary enquiries have necessarily to be conducted separately because the procedures prescribed for them are different." I have extracted the aforesaid decisions in extenso so that it can be useful to the subordinate Courts on this point. 9. Relying on the aforesaid decisions, the learned Counsel appearing for the petitioners, on the facts of this case, contends that the Magistrate having taken cognizance of the offences under sections 448 and 426, Indian Penal Code, after perusing the papers and after applying his mind, cannot now take cognizance at the instance of the Assistant Public Prosecutor against the petitioners under section 380, Indian Penal Code. I may at this stage state that the decision reported in Asokan v. Narayanan,1deals with a police report and a private complaint on the same cause of action and this decision cannot be applicable to the facts of the instant case. From the facts of the instant case, it is so obvious that the Magistrate has not applied his mind before taking cognizance of the offences, for, had he applied his mind, he would not have taken cognizance of the offences which are prima facie barred. 10. The learned Public Prosecutor, on the other hand, contends that the charge under section 380, Indian Penal Code, can be maintained against the petitioners on the facts of the case, for, the Magistrate has taken cognizance of the offence under section 380, Indian Penal Code, on 17th November, 1979, on perusing the entire records of the case. The learned Public Prosecutor, in order to substantiate this proposition of law, relies on a decision reported in Shanmugha Sundara Nadar v. Sadasivam2, Krishnaswamy Reddy, J., has observed1 on the facts of that case that: “If the Magistrate has committed a mistake while taking cognizance of an offence or the facts placed before him are not complete, there is no prohibition under section 190, Criminal Procedure Code, to take cognizance of that offence which is subsequently disclosed and proceed with it. Therefore, the Magistrate has got power at any stage before the judgment is delivered to alter the offence if it is warranted by the evidence on record and proceed with the enquiry or trial of such offence following the appropriate procedure provided under the Criminal Procedure Code.” It is on the basis of this decision, the learned Public Prosecutor contends that the Magistrate has taken cognizance of the offence not only under sections 448 and 426, Indian Penal Code, but also under, section 380, Indian Penal Code, on the materials placed before him and such cognizance cannot be said to be illegal or is contrary to law. The learned Public Prosecutor further contends that taking earlier cognizance in the instant case is based on the police report and hence such earlier cognizance taken by the Magistrate cannot be complete and be considered as a proper cognizance. 11. I have heard the arguments of the respective Counsel in this matter. The learned Public Prosecutor further contends that taking earlier cognizance in the instant case is based on the police report and hence such earlier cognizance taken by the Magistrate cannot be complete and be considered as a proper cognizance. 11. I have heard the arguments of the respective Counsel in this matter. As stated above, the short facts are that a complaint was lodged by the complainant against the petitioners on 23rd February, 1978, that the charge-sheet though signed on 11th June, 1979, was filed by the respondent on 13th August, 1979, against the petitioners under sections 448 and 426, Indian Penal Code, that on 6th November, 1979, the petitioners filed an application before the trial Court contending that the trial Court has taken cognizance of the offences which are barred by limitation and hence they should be discharged. The Magistrate on 17th November, 1979, gave notice to the Public Prosecutor and perusing the records, found that there are materials from the papers placed before him by the police, to show that an offence under section 380, Indian Penal Code, is also maintainable, apart from section 448 and 426, Indian Penal Code as against the petitioners. 12. The question is, has the Magistrate applied his mind on the facts of the case while taking cognizance on the materials placed before him. From the papers placed before the Magistrate by the Police it is, clear that the charge-sheet was filed on 13th August, 1979, against the petitioners under sections 448 and 426, Indian Penal Code, with respect to the offence committed by the petitioners on 23rd February, 1978, which prima facie on the facts which are evident from the relevant dates, is barred and such cognizance cannot be said to be legal against the petitioners under the aforesaid sections. The Magistrate, on a petition filed by the petitioners, after hearing the arguments of the Public Prosecutor, found that the charge against the petitioners under section 380, Indian Penal Code, is also maintainable and passed the impugned order. On perusal of the records and. considering the sum and substance of the decisions quoted above in the matter of taking cognizance of the offence against the accused. On perusal of the records and. considering the sum and substance of the decisions quoted above in the matter of taking cognizance of the offence against the accused. I am of the view that the charges against the petitioners under sections 448 and 426, Indian Penal Code, are barred by limitation, for, the charge-sheet has been filed by the respondent against the petitioners after a period of 17 months. very taking of the cognizance of the offence by the Magistrate on I3th August, 1979, which is said to have been committed by the petitioners on 23rd February, 1978, after a period of one year, with respect to sections 448 and 426, Indian Penal Code, itself shows that the Magistrate has not applied his mind in taking cognizance of the offences levelled against the petitioners. Under the circumstances this petition is allowed, to the extent of taking cognizance of the charges against the petitioners under sections 448 and 426, Indian Penal Code. 13. Taking cognizance of an offence has not been expressly defined in the Code excepting the fact that cognizance can be taken under the clauses set out under section 190, Criminal Procedure Code. It has further to be noted that cognizance takes place at a point when the Magistrate first takes judicial notice of an offence and if, during the course of the proceedings, the Magistrate finds that another affence has also been committed, he can take cognizance of the same. Therefore, the contention of the learned Counsel appearing for the petitioners that when once the Magistrate takes cognizance of an offence, the subsequent taking of cognizance with respect to another offence is illegal, cannot be correct. Take for example, if a Magistrate by mistake or by oversight omits to take cognizance of an offence which is staring on the evidence and from the records, is be prevented from taking cognizance of a particular offence which was left omitted? In the interests of justice, nothing prevents the Magistrate to take cognizance of an offence which is, by oversight, omitted and which is evidenced from the records. In the interests of justice, nothing prevents the Magistrate to take cognizance of an offence which is, by oversight, omitted and which is evidenced from the records. I respectfully agree with the views of Krishna-swamy Reddy, J., that there cannot be any prohibition under section 190, Criminal Procedure Code, to take cognizance of an offence which is subsequently disclosed and proceed with it, and that the Magistrate has got power, at any stage before the judgment is delivered, on the facts of the case and in the interests of justice, to alter the offence if it is warranted by the evidence on record and proceed with the enquiry or trial following the appropriate procedure provided under the Criminal Procedure Code. Under the circumstances, in so far as the charge under section 380, Indian Penal Code, against the petitioners is concerned. I direct the Magistrate to scrutinise the xecords that are placed by the respondent before him to come to the conclusion whether the charge under section 380, Indian Penal Code, is maintainable against the petitioners or against the first petitioner alone, after giving due notice to either of the parties. With these observations I remit the entire matter to the trial Court for disposal. Case remanded.