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Madhya Pradesh High Court · body

2001 DIGILAW 228 (MP)

D. R. Maheshwar v. State of M. P.

2001-03-09

S.C.PANDEY

body2001
ORDER S.C. Pandey, J. 1. This revision under Section 397/401 of the Code of Criminal Procedure is directed against the order dated 10-10-2000, passed by the Chief Judicial Magistrate, Chhatarpur, in Criminal Case No. 453/2000. By the impugned order the applicant, who was working as Tahsildar, Rajnagar, was made an accused when the charge-sheet was filed against Sukhnandan Chaturvedi, the respondent No. 2, who was the Patwari, at the time the applicant was posted at Rajnagar. 2. The facts of this case disclose that the respondent No. 2 Sukhnandan Chaturvedi filed an application under Section 319 of the Code of Criminal Procedure before the Chief Judicial Magistrate, Chhatarpur alleging that the applicant be arrayed as accused in Criminal Case No. 453/2000, in which the respondent No. 2 was already an accused. 3. The learned Chief Judicial Magistrate, Chhatarpur, having heard the learned counsel for the parties, by the impugned order, allowed the aforesaid application, observing that when the challan was filed it was mentioned in the charge-sheet that the charge-sheet has been filed against the applicant. It was also found that during the course of investigation by the police he was arrested. However, later on, his name was deleted from the list of accused persons. It has also been found that there was nothing on record to show as to in what circumstances name of the applicant was deleted by the prosecution from the array of the accused persons mentioned in the charge-sheet. Thereafter, the learned Chief Judicial Magistrate purported to have exercised his power under Section 319 of the Code of Criminal Procedure and has made the applicant an accused, and also issued a bailable warrant against him for his appearance before the Court. 4. In this revision, it has been urged by the learned counsel for the applicant that the Trial Magistrate could not have exercised his powers under Section 319 of the Code of Criminal Procedure. It was emphasized that for exercising the powers under Section 319 of the Code of Criminal Procedure evidence has to be recorded during the course of any enquiry or trial of an offence and if it is clear from the evidence that the person who has not been made an accused, appears to have committed an offence, then only he can be added as a co-accused for the offence which he appears to have committed. In view of the fact that the learned Chief Judicial Magistrate has not recorded any evidence in the case, he had no power to take cognizance against the applicant. In this connection, the attention of this Court was drawn to a decision of the Supreme Court in the case of Tek Narayan Prasad vs. State of Bihar and another reported in 1999 SCC (Cri.) 356, wherein their Lordships of the Supreme Court held that a person who has not been charge sheeted can be added as co-accused under section 319 of the Code of Criminal Procedure only when some evidence is recorded after the trial had begun. In that case, their Lordships of the Supreme Court referred to an earlier decision in the case of Kishun Singh and others vs. State of Bihar reported in (1993) 2 SCC 16 in which it has been stated by the Supreme Court that Section 319 of the Code of Criminal Procedure is not exhaustive of all post-cognizance situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court. It was stated that the powers under Section 193 of the Code of Criminal Procedure authorise, a Court of Session to summon the coaccused persons who have not been made accused by the prosecution along with others, already facing trial. It has also been held by the Supreme Court that under Section 190 of the Code of Criminal Procedure to object is to take cognizance of an offence and not the offender. Once the Court takes cognizance of the offence, it becomes the duty of the Court to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is further, the duty of the Court to summon them to stand trial along with those already named, and summoning of such persons would only be a part of the process of taking cognizance. Therefore, it is well established that the learned Trial Magistrate could not have exercised powers under section 319 of the Code of Criminal Procedure. 5. Therefore, it is well established that the learned Trial Magistrate could not have exercised powers under section 319 of the Code of Criminal Procedure. 5. However, it has been contended on behalf of the State/respondent No. 1 that the Chief Judicial Magistrate has made a reference to a wrong section of the Code of Criminal Procedure. He could very well have exercised his powers under Section 190 of the Code of Criminal Procedure taking cognizance of an offence against the applicant, if the material available in the charge-sheet disclosed commission of an offence by the applicant. The attention of this Court was drawn to the decision of the Supreme Court in Kishun Singh's (supra), where their Lordships of the Supreme Court held that so far as the Court of Session was concerned, it could exercise similar powers as are sought to be exercised here under Section 193 of the Code of Criminal Procedure. 6. Having considered the rival contentions of the learned counsel for the parties, it appears to this Court that Section 193 of the Code of Criminal Procedure empowers the Court of Session to take cognizance of an offence as a Court of original jurisdiction on committal of the case to it by the Magistrate as per the provisions of the Code of Criminal Procedure. It must be presumed that the words "taking cognizance" are used in the similar sense as have been used in Section 190 of the Code of Criminal Procedure. The difference between Section 193 of the Code of Criminal Procedure and Section 190 thereof is that the Court of Session can take cognizance of offence in limited cases when a case is committed to it by the Magistrate under the Code of Criminal Procedure. The Magistrate exercises the powers of taking cognizance as a Court of original jurisdiction under Section 190 of the Code of Criminal Procedure. This is the broad scheme under the Code of Criminal Procedure, of taking cognizance of offences triable by the ordinary Criminal Courts established by virtue of powers conferred by it. There may be exceptions when the Special Courts are empowered to take cognizance of an offence directly under a special law. 7. This is the broad scheme under the Code of Criminal Procedure, of taking cognizance of offences triable by the ordinary Criminal Courts established by virtue of powers conferred by it. There may be exceptions when the Special Courts are empowered to take cognizance of an offence directly under a special law. 7. Under Section 190 of the Code of Criminal Procedure, on the other hand, a Magistrate First Class and any Magistrate of Second Class especially empowered in this behalf to take cognizance of an offence either on complaint or upon police report; or upon an information received. The Chief Judicial Magistrate has also power to delegate to another Magistrate of Second Class the power of taking cognizance of such offences as are within his competence to inquire into and trial. Although the word "cognizance" has not been defined under Section 190 of the Code of Criminal Procedure, it generally means application of mind in a criminal proceeding for taking an action. It is also clear from bare reading of Section 190 of the Code of Criminal Procedure that the cognizance is taken of an offence and not that of an offender. In fact, the use of the word "cognizance" means taking judicial notice of an offence and it may not necessarily mean the commencement of a proceeding against anyone. However, as pointed out by the Supreme Court that the process of taking cognizance cannot be cabined or confined to date of filing of charge-sheet or to subsequent orders passed thereafter in connection with the accused persons who are chargesheeted. Even if the Court takes cognizance of an offence against the persons named in the charge-sheet, the process of taking cognizance against other persons is not exhausted. It continues till the charges are framed. Therefore, it has been held by the Supreme Court in Kishun Singh's case (supra) that the powers under Section 193 of the Code of Criminal Procedure have to be exercised for the limited purpose and this process of taking cognizance may include summoning of a person or persons whose complicity in commission of crime can prima facie be gathered from the material available on record. Therefore, when the Court examines record and finds from the material before it that a guilty person who has been omitted to be chargesheeted by the prosecution, it can summon him and this process shall also be included in the process of taking cognizance. The decision of the Supreme Court in Kishun Singh's case (supra) may be in context of Section 193 of the Code of Criminal Procedure, it is also relevant to Section 190 of the Code of Criminal Procedure. Both these sections deal with the taking cognizance of an offence. This Court is bound by the decision of the Supreme Court that the Court of Session can take cognizance of an offence under Section 193 of the Code of Criminal Procedure prior to framing of charges. The same logic shall apply to taking cognizance of an offence by a Magistrate, under Section 190 of the Code of Criminal Procedure, prior to framing of charges. This Court is of the view that under Section 190 of the Code of Criminal Procedure a Magistrate shall be deemed to be empowered to exercise the powers of taking cognizance till he frames charges against one or more accused persons. Once he does so, he shall be deemed to have exhausted his powers under Section 190 of the Code of Criminal Procedure. After framing of charges a Court of Session or Magistrate has still power to add a new accused, but this power can be exercised on the basis of evidence adduced against the person who was not sent to trial by filing a charge-sheet against him. 8. As a result of aforesaid discussion, this Court does not find any merit in this revision. The revision is, accordingly, dismissed. Misc.(Cr.) P. No. 537/2001 filed on behalf of the applicant for grant of stay too stands dismissed, as it has become infructuous, because of dismissal of the revision petition itself.