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Gauhati High Court · body

2001 DIGILAW 65 (GAU)

Rajendra Kumar Sood v. Jagat Singh Dugar

2001-03-16

H.K.SEMA

body2001
By this petition under section 482 read with section 401 of the Criminal & Procedure Code with Article 227 of the Constitution of India, the revisionist prayed for quashing of Complaint Case No. 812c/88 pending in the Court of Judicial Magistrate, Karnrup, Guwahati on the ground inter alia that the learned trying Magistrate has taken cognizance after the mandatory period imposed by section 468 of the Cr PC inasmuch as punishment prescribed under section 403 of the IPC is punishable with imprisonment for two years. 2.1 have heard Mr. SP Roy, learned counsel for the revisionists as well as Mr. AB Choudhury, learned counsel for the respondent. 3. The Complaint Case No. 812/88 has been registered before the learned Judicial Magistrate, Kamrup, Guwahati preceded by a complaint petition dated 13.6.88 filed by the complainant/respondent. The complaint petition has been registered under section 403 of the IPC. On receipt of the complaint, the learned trying Magistrate passed the following orders: "13.6.99 : Complaint received on transfer. Complainant is present and examined. It reveals that the complainant lodged an ejahar with the PS in relation to the same occurrence. Hence subject to the provision of section 210 of Cr PC call for the police report. Fix 30.7.88 for report" Thereafter the trying Magistrate passed order dated 21.5.91 which is impugned herein reads: "Complainant is absent with step. Police report not received for last 2 years, for which, process could not be issued. Perused the statement of the complainant. Heard the learned Advocate, appearing for the complainant. I find materials to issue process against the accused under section 403 IPC. Summon to accused under section 403 IPC accordingly. Fix 2.7.91 for appearance, complainant to take steps." 4. Being aggrieved, this revision petition has been preferred. 5. Mr. SP Roy, counsel for the revisionists strenuously around that learned trying Magistrate for the first time taking cognizance of offence under section 403 IPC on 21.5.91 on basis of complaint dated 13.6.88 and such cognizance is d bar under section 468 of the Cr PC inasmuch as punishment prescribed under section 403 IPC is punishable for two years or fine or both. On the other hand, Mr. AB Choudhury, learned counsel appearing for the respondent/complainant submits that the trying Magistrate has already taken cognizance on 13.6.88 and there was no occasion of having taken cognizance again on 21.5.91. 6. On the other hand, Mr. AB Choudhury, learned counsel appearing for the respondent/complainant submits that the trying Magistrate has already taken cognizance on 13.6.88 and there was no occasion of having taken cognizance again on 21.5.91. 6. Section 468 of the Cr PC provides amongst others bar to taking cognizance after lapse of period of limitation. For the present purpose sub-section 2 (c) of section 468 Cr PC is relevant. It reads : "three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years." 7. No doubt, that offence punishable under section 403 of the IPC is for two years and therefore it falls within the mischief of sub-section 2 (c) of section 468 Cr PC if other conditions are fulfilled. 8. Now the question to be determined as to whether the trying Magistrate has taken cognizance on 13.6.88 the date on which the complaint petition was presented before the trying Magistrate on which date the learned trying Magistrate passed the order as referred above or on 2L5.91 where the learned Magistrate found sufficient materials to issue process against the accused under section 403 IPC? 9. Mr. AB Choudhury, learned counsel for the respondent has drawn my attention to the provision of section 200 Cr PC which deals with the complaint particularly with the opening sentence. "A Magistrate taking cognizance of offence on complaint" and submits that the moment a complaint petition is submitted before Magistrate and the complainant is examined on oath the Magistrate has taken cognizance. According to Mr. AB Choudhury the cognizance in the present case has already been taken by the Magistrate on 13.6.88 when he received the complaint petition on transfer and examined the a complainant. To answer this question, provision contained in sections 190,200, 202,203 and 204 of the Cr PC has to be read conjointly. 10. The controversy involves in the present petition, in my view, are no more res integra. To answer this question, provision contained in sections 190,200, 202,203 and 204 of the Cr PC has to be read conjointly. 10. The controversy involves in the present petition, in my view, are no more res integra. It has been set at rest by the Apex Court in a catena of decision avoiding multiplicity, in RR Chart vs. State of Uttar Pradesh reported in AIR , 1951 SC 207, it was observed by the Apex Court at page 209 as follows : "...taken 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." Further in case of Narayan Das, Bhagawan Das & Madhav Das vs. State of West Bengal reported in AIR 1969 SC 1118 the Apex Court observed at page 1123 as under ; "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 1 proceeding under section 200 and thereafter sending it for inquiry and report under section 202." 11. Section 190 of the Cr PC empowers any Magistrate First Class or any Magistrate of Second Class specially empowered-m this behalf to take cognizance of an 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. 12. Cognizance has not been defined under the Code. The plain meaning of cognizance therefore implies an application of mind by a Magistrate to a complaint of facts constituting the offence or suspected commission of an offence. 13. In the instant case, the learned trying Magistrate has received a complaint J on 13.6.88 stating the facts constituting the offence and he has taken cognizance of the case on 13.6.88. The words cognizance employed in sections 200, 202, 203 and 204 of the Cr PC are referable to cognizance taken under section 190 of the Cr PC. 13. In the instant case, the learned trying Magistrate has received a complaint J on 13.6.88 stating the facts constituting the offence and he has taken cognizance of the case on 13.6.88. The words cognizance employed in sections 200, 202, 203 and 204 of the Cr PC are referable to cognizance taken under section 190 of the Cr PC. Once the Magistrate decided to take cognizance under section 190 of the Cr PC on a complaint he may proceed to the complaint and adopt any of the following alternatives as enjoined under section 202 - (a) He may pursue the complaint and if satisfied that there are sufficient ground for proceeding he can issue process to the accused but before he does so, he must comply with the requirement of section 200 and record the evidence of the complainant witnesses. (b) He can postpone the issue of process and make the inquiry by himself. (c) The Magistrate can postpone the issue of process and direct an inquiry by any other person or investigation by the Police. (d) After considering the statements of the complainant and the witnesses or result of the investigation or the inquiry the Magistrate is not satisfies that there are sufficient ground for proceeding he can dismiss the complaint under the provision of section 203 Cr PC. (e) If in the opinion of the Magistrate taking cognizance of the offence mat after considering the result of the investigating or inquiry there is sufficient ground for proceeding men the Magistrate can issue process as provided under section 204 of the Cr PC. 14. Reverting to the facts of the present case as noticed earlier the learned, trying Magistrate on receipt of the complaint on 13.6.88, has examined the complainant and therefore, it can be said that he has taken cognizance on 13.6.88 on receipt of the complaint of facts, constituting the offence and not on 21.5.91, when trying Magistrate found sufficient materials to issue process against the accused under section 403 IPC. The reason being unless the Magistrate has taken cognizance he can neither issue process under section 204 nor dismiss the complaint under section 203 of the Code. 15. In view of the aforesaid discussion, bar imposed under section 468 of the Cr PC is not attracted in this case. In the result, there is no merit in this revision petition and it is accordingly dismissed. 16. 15. In view of the aforesaid discussion, bar imposed under section 468 of the Cr PC is not attracted in this case. In the result, there is no merit in this revision petition and it is accordingly dismissed. 16. Despite of the dismissal of the revision petition, it appears that the lost articles on the basis of which the present case has been initiated has already been seized in Court proceeding and the same has been returned to the complainant vide Annexure 7 and 8. The receipts in Annexure 7 and 8 bears the signatures of the complainant. 17. Mr. AB Choudhury, learned counsel for the complainant also, submits that lost articles on the basis of which complaint has been filed has been received e by the complainant. The case is pending since 13.6.88 and the offence punishable is under section 403 of the IPC which is punishable to two years, if found guilty. It is now well settled principle of law that quick justice is sine qua non of Article 21 of the Constitution. Petitioner is waiting for justice since from 1988, which is now almost 12 years: During this period petitioners have suffered enough both mentally and physically, in fact more than undergoing imprisonment. In that view / of the matter,, petitioner has been sufficiently punished. Viewed from the nature of the offence and the sentence awardable in the background, equity, justice and fair play demanded that petitioner should not be made to suffer any longer. The proceeding in Complaint Case No. 812/88 under section 403 IPC pending before the Judicial Magistrate, Kamrup, Guwahati shall now stand terminates. With the aforesaid direction and observation, this petition is disposed.