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2001 DIGILAW 428 (MP)

HARBHAJAN SINGH v. STATE OF M. P.

2001-05-16

S.C.PANDEY

body2001
S. C. PANDEY, J. ( 1 ) THIS revision under S. 397 read with S. 401 of the Code of Criminal Procedure is directed against the Orders dated 21-7-2000 passed by the CJM, Damoh and 29-12-2000 passed by the learned Judicial Magistrate First Class, Damoh (who presided on that day in absence of the CJM) in Criminal Case No. 1355/2000. ( 2 ) THE facts of this case disclose that applicant married Smt. Amarjeet Kaur on 14-9-97 according to the rites and customs prevalent in Sikh community. According to facts stated in the memo of revision the applicant and his wife Smt. Amarjeet Kaur lived alongwith the parents of the applicant at Narsinghpur till 27-9-98. Thereafter she lived with the applicant in a separate house situate at Anand Nagar Colony, Narsinghpur. Subsequently she became pregnant and she went to her matrimonial home at Damoh on 3-4-99. On 25-7-99 a male child was born to her. It appears according to memo of revision that after the birth of child the relations between the applicant and his wife became sour and she lodged a report in police station, Kotwali, Damoh with a copy to the District Collector, Damoh, Inspector General of Police, Damoh and Mahila Utpidan Crime Branch, Bhopal. However, the police did not take any action. ( 3 ) THEREAFTER Smt. Amarjeet Kaur filed a complaint before CJM, Damoh under S. 200 of Code of Criminal Procedure alleging commission of offences under S. 498-A of IPC and S. 3/4 of Dowry Prohibition Act by the applicant and his other relations including his father and mother. The Chief Judicial Magistrate recorded the statement of Amarjeet Kaur under S. 200 of the Code of Criminal Procedure. It is alleged that after recording the statement of Amarjeet Kaur, the learned Chief Judicial Magistrate on 21-7-2000 directed the Station House Officer, Police Station, Kotwali, Damoh to register the offences under S. 498-A, IPC and S. 3/4 of Dowry Prohibition Act and further directed that the report be submitted by the police by 30th of July, 2000. Pursuant to that report, the police filed the charge-sheet under S. 498-A of IPC and also under S. 3/4 of Dowry Prohibition Act. It was stated in the charge-sheet that the applicant is a nabsconder. Pursuant to that report, the police filed the charge-sheet under S. 498-A of IPC and also under S. 3/4 of Dowry Prohibition Act. It was stated in the charge-sheet that the applicant is a nabsconder. The chargesheet was filed in the Court of CJM, Damoh but as he was absent the Judicial Magistrate 1st Class Damoh who presided over the Court passed the order dated 29-12-2000 for taking action under S. 299 of the Code of Criminal Procedure against the applicant. The applicant is aggrieved by both these orders, hence this revision. ( 4 ) IT is argued by learned counsel for the applicant that the CJM had no power to treat the complaint as an FIR and order an investigation on 21-7-2000. Once he has recorded the statement of the complainant, it would be deemed that he was proceeding under S. 200 of Code of Criminal Procedure having taken cognizance of the offence under S. 200 of that Code. He could then proceed further as per S. 202 of the Code of Criminal Procedure by postponing the issuance of process and ordering investigation if need be. The learned counsel for the applicant relied upon the decision of Supreme Court in the matter reported in AIR 1968 SC 117 : (1968 Cri LJ 97) (Abhinandan Jha v. Dinesh Mishra) and AIR 2001 SC 571 : (2001 Cri LJ 954) (Suresh Chand Jain v. State of M. P.) and the cases relied upon in these cases. He also assailed the order dated 20-4-2001 as without jurisdiction. ( 5 ) ON the other hand the learned counsel for the State argued that these cases were distinguishable. It was argued that mere examination of the complainant shall not indicate that learned CJM, Damoh had decided to take cognizance of the offence. It was argued that order dated 21-7-2000 purports to be what it says. ( 6 ) THE question that has to be decided is if by examining the complainant the Magistrate is deemed to have taken cognizance of the offence under S. 200 of Cr. P. C. Consequently, he could not exercise his powers under S. 156 (3) of Cr. P. C. directing an investigation. When does a Court take cognizance of an offence? In this connection S. 190 of the Code of Criminal Procedure may be reproduced :- 190. P. C. Consequently, he could not exercise his powers under S. 156 (3) of Cr. P. C. directing an investigation. When does a Court take cognizance of an offence? In this connection S. 190 of the Code of Criminal Procedure may be reproduced :- 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 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. (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 ) IT is apparent that a Magistrate has power to take cognizance of an offence under S. 190 of the Code of Criminal Procedure upon receiving (i) a private complaint (ii) police report or (iii) information other than police officer or upon his personal knowledge. An offence under S. 498-A, IPC would be a cognizable offence when the complainant is the aggrieved person. If we read S. 190 (a) of Cr. P. C. along with S. 200 of Cr. P. C. , then the Magistrate is required to follow the procedure in complaint case after taking cognizance of an offence. This procedure falls under Chapter XV of the Code of Criminal Procedure. Section 2 (d) of the Code of Criminal Procedure defines a "complaint" as follows :- "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but does not include a police report. " thus, even a complaint need not be in writing. ( 8 ) THERE is no provision in the Code of Criminal Procedure defining the act of taking cognizance. It will depend upon the facts of each case. In AIR 1950 Calcutta 437 (Supdt. " thus, even a complaint need not be in writing. ( 8 ) THERE is no provision in the Code of Criminal Procedure defining the act of taking cognizance. It will depend upon the facts of each case. In AIR 1950 Calcutta 437 (Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee) Justice Das Gupta speaking for Division Bench of Calcutta High Court made the following general statement at page 438 in paragraph 7 (at page 438) :-"what is taking cognizance has not been defined in the Criminal Procedure Code, and I have no desire now 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 under S. 190 (1) (a), Criminal P. C. , 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 S. 200, and thereafter sending it for enquiry and report under S. 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 S. 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. "the Supreme Court has approved the very words quoted in AIR 1951 SC 207 : (1951 (52) Cri LJ 775) and AIR 1961 SC 986 . Recently the Supreme Court in AIR 2000 SC 2946 : (2000 CLC 2028) (Narsingh Das Tapadia v. Goverdhan Das Partani) at page 2948 in paragraph 8 has summed up these laws as follows :- "taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under S. 156 (3) of Cr. P. C. or issuing a search warrant, he cannot be said to have taken cognizance of the offence. " ( 9 ) THE aforesaid general principles lay down the guidelines for determining whether a Court has taken cognizance. The question is when the Chief Judicial Magistrate examined the complainant did he apply his mind to register a complaint after taking cognizance under S. 190 (a) of Cr. P. C. Certainly he could do so. However, by the impugned order he manifested different intention. Could this Court say by construing his order that what he did; he did not mean and what he meant; he did not do? The answer is clear "no". An order is a document. It has to be construed in its ordinary and natural meaning in absence of any ambiguity. It appears to this Court that the learned CJM clearly purported to exercise power under Chapter XII and not under Chapter XV of the Code of Criminal Procedure. He was equally armed with powers for taking either course. He chose the one and rejected the other. Now it is being argued that because he had followed the mandatory procedure of examining the complainant under S. 200 of Cr. P. C. it should be implied that he had taken the cognizance of the offences. This argument smacks of legalism. It is more important to find out what the learned C. J. M. intended by the totality of his actions. It is clear from his order that he ordered investigation under S. 156 (3) of Cr. P. C. This must be opinion formed after reading the complaint. Further examination of the complainant would not add anything to the initial opinion of the Magistrate. The decision of Supreme Court in case of Suresh Chand Jain (supra) is of no help to applicant. P. C. This must be opinion formed after reading the complaint. Further examination of the complainant would not add anything to the initial opinion of the Magistrate. The decision of Supreme Court in case of Suresh Chand Jain (supra) is of no help to applicant. In that case, it was argued that it was necessary to examine the complainant before proceeding under S. 156 (3) of Cr. P. C. in a case filed as a private complaint. The contention was rejected. The converse is not true. Mere examination of witnesses would not result in taking cognizance in a case filed upon complaint depriving the right of CJM to order investigation. The act of taking cognizance is discretionary. The discretion exercised by the Magistrate must be judged by what he purports to do and not by applying any other standard. The Magistrate was not satisfied after going through the complaint that he should take cognizance of the matter. This interpretation of his order is in consonance with what he did. The further act of examination of complainant was also for the purpose of ordering investigation under S. 156 (3) of the Code of Criminal Procedure. Therefore, this Court is of the view that the order dated 21-7-2000 is good and valid. It is an order under S. 156 (3) of Cr. P. C. Consequently filing of the charge-sheet is upheld. The charge-sheet indicates that the applicant was reported to be absconding on 29-12-2000. Consequently, the learned Judicial Magistrate First Class had no option but to issue the warrant of arrest. This Court does not find any illegality in the orders passed by the Court below. The revision has no merit. It is dismissed. The record of the Court below be sent back immediately. Petition dismissed. .