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1999 DIGILAW 190 (RAJ)

Ibrahim Khan v. State

1999-02-12

G.L.GUPTA

body1999
Honble GUPTA, J.–This misc. petition under Section 482 Cr.P.C. is directed against the order dt. 4.9.89 passed by the learned Sessions Judge, Churu whereby the affirmed the order dt. 15.6.89 of the Chief Judicial Magistrate issuing warrant of arrest against the petitioner. (2). The short facts of the case are these: Ayub, respondent no.2 lodged a first information report on 30.9.86 against seven persons in respect of an occurrence which took place in the previous night on which a case under Section 307 IPC was registered. As injured Shafi died during investigation, section 302 IPC was also added. After the completion of the investigation, the police submitted a challan on 6.12.86 against six persons and filed a Final Report against petitioner Ibrahim Khan. Vide order dt. 29.1.87 the six accused challaned by the police were committed to the Court of Sessions. Thereafter on 20.4.87 first informant Ayub filed a private complaint before the Magistrate against seven persons (six already challaned by the police and Ibrahim, petitioner). The Magistrate recorded statements of the com- plainant and his witnesses. The Magistrate vide order dt. 15.6.89 ordered the summoning of the petitioner by a warrant of arrest. This order was challenged by petitioner Ibrahim by filing revision petition before the Sessions Judge, Churu who vide order dt. 4.9.89 dismissed the revision petition. Now this misc. petition. (3). Mr. Shishodiya learned counsel for the petitioner vehemently contended that under Sec.190 Cr.P.C. the Magistrate takes cognizance of the offence/s and once the Magistrate takes cognizance of the offence/s under any of the cls. 4.9.89 dismissed the revision petition. Now this misc. petition. (3). Mr. Shishodiya learned counsel for the petitioner vehemently contended that under Sec.190 Cr.P.C. the Magistrate takes cognizance of the offence/s and once the Magistrate takes cognizance of the offence/s under any of the cls. (a), (b) or (c) he cannot take cognizance again in respect of same offence/s. He pointed out that the Magistrate had already taken cognizance of the offences in exercise of power under Sec.190(1)(b) when the police submitted challan against six persons named in the F.I.R. and contended that after committing the case to the Court of Sessions the Magistrate had no power to take cognizance against the petitioner on the basis of the private complaint as that amounted to taking of the cognizance twice which is not permissible under Sec. 190 Cr.P.C. His contention was that if the Sessions Judge is satisfied after evidence is recorded, he may summon the petitio- ner as additional accused in exercise of power under Sec. 319 Cr.P.C. but the Magis- trate could not do so u/S. 190 Cr.P.C. after he had committed the case to the Court of Sessions. His further submission was that the Magistrate had examined only 11 witnesses before passing the order of summoning the petitioner whereas he ought to have examined all the witnesses as the case was triable by the Court of Sessions. (4). The learned Public Prosecutor, on the other hand, contended that the Magistrate had a right to take cognizance against the petitioner in exercise of the power under Section 190(1)(a) Cr.P.C. on the basis of the private complaint, and therefore, the order does not call for interference. (5). There is no merit in the second contention of Mr. Shishodiya that it was incumbent for the Magistrate to have examined all the witnesses named in the list as it was the case exclusively triable by the Sessions Court. In the case of Mahendra Singh vs. Kesar Singh (1), this Court has held that it is not necessary for a Magistrate to examine all the witnesses mentioned in the list and the expression ``produce all his witnesses and examine them in proviso to sub-sec. (2) of Sec. 202 Cr.P.C. mean only such witnesses which the complainant thinks necessary to produce. (2) of Sec. 202 Cr.P.C. mean only such witnesses which the complainant thinks necessary to produce. In the instant case, the complainant desired to examine 11 witnesses only and it cannot be said that there was non- compliance of Section 202 Cr.P.C. (6). There is however merit in the first contention of Mr. Shishodiya that cognizance could not be taken by the Magistrate twice in respect of the same offe- nce. Section 190 Cr.P.C. is reproduced hereunder:- ``190. Cognizance of offences by Magistrates.- (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 (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 com- mitted. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try. (7). A plain reading of Section 190 Cr.P.C. shows that under Section 190 Cr.P.C. the Magistrate takes cognizance of an offence and not against any particular accused. Therefore, when once cognizance of the offence is taken by the Magistrate; may be on the basis of private complainant or on the basis of the police report or upon information received from any person other than the police or, he may is- sue process against u/s. 204 Cr.P.C. the accused persons who are alleged to have committed the offence. (8). The cognizance on the basis of the police report is taken when the Magistrate applies his mind to the facts contained in the police report filed under Sec.173 Cr.P.C. In the case of a private complaint, the stage of taking cognizance is when the Magistrate embarks upon the enquiry under Section 200 and 202 Cr.P.C. Once the Magistrate takes the cognizance of the offence either on the basis of the private complaint or on the police report, it is not permissible that subsequently he may take cognizance again of the same offence: See Suresh vs. State of Raj. (2). (2). Not only that, once the case proceeds further either by way of recording of evidence by the Magistrate or commitment to the Sessions, as the case may be, the Magistrate becomes functus officio so far as his powers under Section 190, Cr.P.C. are concerned: Vide: Sheoram vs. State of Raj. (3). (9). In the instant case, it is not disputed that after the police submitted challan against six persons the case was committed to the Court of Sessions. The moment the Magistrate committed the case to the Court of Sessions under Section 209 Cr.P.C. he became functus officio so far as his powers, under Section 190 Cr.P.C. in respect of the offence for which he had taken cognizance is concerned. Therefore, he could not take cognizance of the same offence on the basis of the private complaint filed by Ayub subsequently. (10). The only provision under which additional person can be impleaded as accused in a case after the case is committed to the Court of Sessions is contained in Sec. 319 Cr.P.C. Under that Section, the Sessions Judge has a power to summon additional accused if it appears from the evidence that he had also committed the offence. Vide: Ranjit Singh vs. State of Punjab (4). That being so, in the instant case, it was not open for the Magistrate to take cognizance of the same offence on the basis of the private complaint for which he had already taken cognizance on the police report and had even committed that case to the Court of Sessions. (11). The position may be different if during the pendency of the private complaint before the Magistrate it is brought to his notice that in respect of the same occurrence a police case also has been registered. The Magistrate in that case may call the report for the police and proceed under Section 210 Cr.P.C. Similarly, if a police report u/s. 173 Cr.P.C. and a private complaint are filed simultaneously, the Magistrate may pass appropriate order of issuing process against the person not challaned by the police provided he has not become functus officio in so far as his powers under Section 190 Cr.P.C. is concerned. (12). In the instant case, the case had already been committed and thereafter the private complaint was filed. (12). In the instant case, the case had already been committed and thereafter the private complaint was filed. As such, the Magistrate could not have acted under Section 190 Cr.P.C. on the basis of the private complaint. That being so, the order of Magistrate taking cognizance on the private complaint of Ayub, and subsequent order of summoning the petitioner are not sustainable. The learned Sessions Judge has obviously erred when he upheld the order of the Magistrate. (13). Consequently, the petition succeeds, and the orders impugned therein are hereby quashed. This order will not prevent the Sessions Judge to pass an order u/S. 319 Cr. P.C. against the petitioner, if he is satisfied by the evidence produced before him about the participation of the petitioner in the occurrence.