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1997 DIGILAW 1466 (RAJ)

Sarwan Kumar v. State of Rajasthan

1997-12-09

AMARESH KUMAR SINGH

body1997
JUDGMENT 1. - Heard the learned counsel for the petitioner, the Public Prosecutor and the learned counsel for non-petitioner No. 2. 2. By this petition under section 482 Cr.P.C. it is prayed that the order dated 19.3.1994 passed by the learned Additional Sessions Judge, Ratangarh in criminal revision No. 60/93 be quashed and set aside. By the impugned order, the learned Additional Sessions Judge exercising the powers under section 397 Cr.P.C. set aside the order dated 16.9.1993 passed by the learned Additional Chief Judicial Magistrate, Ratangarh in criminal case No. 290/93 taking cognizance of the offences. 3. A bare perusal of the impugned order dated 19.3.1994 passed by the Additional Sessions Judge, Ratangarh shows that he allowed the revision petition solely on the ground that in his opinion taking of cognizance of the offences was barred by limitation prescribed under section 468 Cr.P.C. The alleged offences were committed on 23.7.1992. The offence under section 341 IPC is punishable with imprisonment for one month and the offence under section 323 IPC is punishable with imprisonment for one year. The period within which the cognizance is required to be taken of these offences, in view of the provisions contained in Section 468 Cr.P.C. is one year. The learned Additional Sessions Judge came to the conclusion that the cognizance of the offences was taken beyond the period of one year and therefore, the cognizance was not in accordance with law. 4. The only question to be decided in this petition is whether the learned Additional Chief Judicial Magistrate had taken cognizance of the offences under sections 323 Sr 341 IPC beyond the period of limitation prescribed by Section 468 Cr.P.C. 5. A perusal of the original record shows that Sarwan Kumar complainant petitioner submitted a complaint in writing in the Court of Additional Chief Judicial Magistrate, Ratangarh on 10.8.1992, against four persons, namely, Magan Singh, Kabool Singh, Sultan Singh and Karni Singh. On the submission of the complaint on 10.8.1992, the learned Additional Chief Judicial Magistrate fixed 3.9.1992 for conducting enquiry under sections 200 & 202 Cr.P.C. On 3.9.1992, the statement of the complainant Sarwan Kumar and his witnesses Pewa Ram and Pooran Mal were recorded by the Court and for remaining evidence, the case was adjourned to 22.9.1992. Subsequently, the case was adjourned from time to time on account of the fact that no Presiding Officer was appointed in that Court. Subsequently, the case was adjourned from time to time on account of the fact that no Presiding Officer was appointed in that Court. On 16.9.1993 the learned Additional Chief Judicial Magistrate observed in his order that there was no material to constitute the offences under sections 3(8) & 3(9) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. How ever, he found sufficient ground to proceed in respect of offence under sections 323 & 341 IPC and issued process under section 204 Cr.P.C. against the accused persons. Incidentally, the learned Additional Chief Judicial Magistrate also observed that he was taking cognizance of the offences under sections 341 Sr 323 IPC. It is, because of this observation made by the learned Additional Chief Judicial Magistrate, the learned Additional Sessions Judge held that the cognizance of the offence had been taken on 16.9.1993 and not earlier. 6. The learned counsel for the petitioner has submitted that cognizance of an offence on the basis of a complaint filed u / Cl. (a) of sub-sec. (1) of Section 190 Cr.P.C. should be deemed to have been taken when after applying mind to the contents of the complaint, the Magistrate decides to proceed under section 200 and subsequent provisions of the Criminal Procedure Code. 7. On the other hand, the learned counsel for the non-petitioner Nos. 2 to 5 has submitted that cognizance of the offences should be deemed to have been taken on the date the learned Magistrate issued process against the accused non-petitioners under section 204 Cr.P.C. 8. In Devarapalli Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors., AIR 1976 SC 1672 at page 1677 of the report the Hon'ble Supreme Court observed : "This raises the incidental question : What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Sec, 190 ? This expression has not been defined in the Code. But from the scheme of the code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of -the offence alleged therein. The ways in which such cognizance can be taken are set out in Cls. (a), (b) & (c) of Section 190(1). The ways in which such cognizance can be taken are set out in Cls. (a), (b) & (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. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding u /s. 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 XV, 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." Their Lordships approved the observations made by the Hon'ble Supreme Court in Nirmaijit Singh Noon v. State of West Bengal, AIR 1972 SC 2639 . 9. In view of the authoritative pronouncement of the Hon'ble Supreme Court, it must be said that since a Magistrate after applying his judicial mind to the contents filed before him decided to proceed under section 200 and subsequent provisions of that chapter, it must be said that he had taken cognizance of the offences u/Cl. (a) of sub-sec. (1) of Section 190 Cr.P.C. In the instant case, the complaint was filed on 10.8.1992 and on the same day the learned Additional Chief Judicial Magistrate after considering the complaint, directed that the case be listed on 3.9.1992 for enquiry under sections 200 & 202 Cr.P.C. and on 3.9.1992 the learned Additional Chief-Judicial Magistrate examined the complainant and two witnesses. The examination of the complainant and his witnesses by the Magistrate is possible only after he has taken cognizance of the offence and not before the cognizance of the offence has been taken. The examination of the complainant and his witnesses by the Magistrate is possible only after he has taken cognizance of the offence and not before the cognizance of the offence has been taken. Therefore, it must be said that in view of the authoritative pronouncement of the Hon'ble Supreme Court as well as the law laid down by this Court in several cases that the learned Additional Chief Judicial Magistrate must be said to have been taken cognizance on the date when after applying his judicial mind, he directed the case to be listed for enquiry under sections 200 & 202 Cr.P.C. and in any case on the date on which he recorded the statement of the complainant and his witness. 10. For the reasons mentioned above, it must be held that the cognizance of the offence was taken by the learned Additional Chief Judicial Magistrate on 10.8.1992, which was a date only 17 days after the commission of the offences. The learned Additional Sessions Judge, Ratangarh was therefore, not justified in coming to the conclusion that the cognizance of the offences had been taken beyond the period of limitation. His order is erroneous and deserves to be quashed and is hereby quashed. The order passed by the learned Additional Chief Judicial Magistrate automatically revived after the quashing and setting aside the order passed by the learned Additional Sessions Judge, Ratangarh. A copy of this order alongwith the record of the case be sent to the learned Additional Chief Judicial Magistrate, Ratangarh for information and necessary action according to law.The petition is disposed of accordingly.Petition allowed. *******