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2010 DIGILAW 990 (RAJ)

Karan Singh v. State of Rajasthan

2010-05-06

M.N.BHANDARI

body2010
JUDGMENT Hon'ble BHANDARI, J.-By these criminal miscellaneous petitions, criminal proceedings pursuant to complaint registered as complaint No. 185/2006 have been challenged. 2. In Criminal Miscellaneous Petition No. 107/2007, order dated 18.11.2006 has been challenged by which cognizance of offence was taken. 3. These two criminal miscellaneous petitions disclose many grounds to challenge criminal proceedings so as the order of cognizance dated 18.11.2006. Learned counsel for petitioners restricted his argument only on o one ground specifically raised in Criminal Miscellaneous Petition No. 2403/2006 with liberty to raise other ground at other appropriate stage. In Ground - F of aforesaid petition, it is pleaded that without taking cognizance of offence, statements of complainant were recorded under Section 200 of the Code of Criminal Procedure (for short 'the Cr.P.C'). 4. It is a case where negative final report was given by police after investigation and thereupon, matter was placed before the Magistrate. A protest petition was filed, however, without applying mind for taking cognizance, order for recording evidence was passed. After recording evidence, a further order was passed on 18.11.2006 taking cognizance of offence and for issue of process in view of provisions of Section 204 of the Cr.P.C. 5. Learned counsel for petitioners submits that complainant can be examined under Section 200 of the Cr.P.C. only when cognizance of offence has been taken. Cognizance of offence has not been defined under the provisions of the Cr.P.C., but in view of several judgments of the Hon'ble Apex Court, cognizance is said to have been taken when Magistrate applies its mind and passes necessary order. If order-sheets of the case are looked into, then it becomes clear that there exists no order for taking cognizance before keeping the matter for recording complainant's evidence. In view of aforesaid, impugned order dated 18.11.2006 deserves to be quashed and set aside so as the criminal proceedings. 6. Per contra, learned counsel appearing for respondents submits that on 26.8.2006 while negative final report was given by SHO, P.S., Shahjhanpur, District Alwar, Magistrate had taken cognizance on 6.9.2006 itself and thereupon evidence of complainant was recorded, thus, it clearly comes out that evidence was recorded after taking cognizance of the offence. The order dated 18.11.2006 is to be treated as superfluous for taking cognizance. 7. To substantiate the arguments, learned counsel appearing for respondents have placed reliance on the judgments of this Court as well as Hon'ble Apex Court. The order dated 18.11.2006 is to be treated as superfluous for taking cognizance. 7. To substantiate the arguments, learned counsel appearing for respondents have placed reliance on the judgments of this Court as well as Hon'ble Apex Court. It is urged that in view of various judgments on the subject, it cannot be said that Magistrate had not taken cognizance before examination of complainant. It is, thus, prayed that petitions may be dismissed. 8. I have considered rival submissions of the parties and scanned the matter carefully. 9. Only argument urged at this stage is that without taking cognizance of offence, complainant was examined pursuant to provisions of Section 200 of I the Cr.P.C., thus examination of the complainant and further proceedings are illegal, hence, may be quashed. 10. To appreciate aforesaid arguments, it is necessary to look into the facts of the case in brief. According to petitioners, complainant- Sandeep Grover made allegations regarding creation of forged Will of Late Shri Ashok , Malik, An FIR bearing No. 161/2006 was registered at Police Station Shahjhanpur, District Alwar. After investigation, negative F.R. was given. Complainant- Sandeep Grover filed a protest petition before concerned Judicial Magistrate. On submission of negative F.R., following orders were recorded on 26.8.2006 and 6.9.2006:- 11. Perusal of order dated 26.8.2006 shows that matter was deferred for 6.9.2006 as per prayer of counsel for complainant to file protest petition (P.P.) On 6.9.2006 matter was fixed for evidence on 20.9.2006 though Presiding Officer of the concerned Court was on leave. Evidence of complainant was thereafter recorded on 20.9.2006 and after deferring the matter from time to time, order dated 18.11.2006 was passed. Question is as to whether order dated 26.8.2006 or 6.9.2006 can be said to be an order for taking cognizance, more so when the order dated 6.9.2006 has not been passed by Presiding Officer because on 6.9.2006, he was on leave, thus whatever order was recorded on aforesaid date cannot be said to have been passed with application of mind by the Magistrate. 12. Before averting to the facts of this case further, it would be gainful to address legal issue as to when it can be said that cognizance of offence has been taken. Learned counsel for parties have cited various judgments, which are discussed hereunder. 13. In the case, of Hari Ram and others vs. State and another reported in RLW 1999(1) Raj. Learned counsel for parties have cited various judgments, which are discussed hereunder. 13. In the case, of Hari Ram and others vs. State and another reported in RLW 1999(1) Raj. 950, it was held that when Magistrate applies his mind for the purpose of proceedings under Section 200 of the Cr.P.C., it would be said to be a date of taking cognizance. Case aforesaid was on the issue of limitation for taking cognizance, thus in the' different context, aforesaid judgment was given. In any case, para 6 of judgment aforesaid shows that cognizance of offence is said to have been taken when the Magistrate applies his mind for the purpose of proceeding under Section 200 of the Cr.P.C. 14. In case of Madadeo Singh vs. Gaje Singh reported in RCC May 1986 199, issue was again regarding the limitation for taking cognizance in view of provisions of Section 468 of the Cr.P.C. Therein also, in Para 9, it has been held that if Magistrate applies his mind for the purpose of proceedings under Section 200 of the Cr.P.C. and succeeding provisions, it can be said to be a case of taking cognizance. 15. The Hon'ble Apex Court in case of CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and another reported in (2005) 7 SCC 467 held that when court, on perusal of complaint, is satisfied that the complaint discloses, commission of an offence and accordingly, Magistrate proceeds further, it is held to be a case of taking cognizance of offence even though words 'taking cognizance' have not been mentioned in the order. The Hon'ble Apex Court made distinction between order taking cognizance and order for issue of process. On the facts, it was held that Magistrate took cognizance in the matter. 16. Other judgments cited by the non-petitioner is in the case of Devarapalli Lakshminarayana Reddy and others vs. V. Narayana Reddy and others reported in (1976) 3 SCC 252 . In the aforesaid case, it was held that as to whether Magistrate has taken cognizance of the offence or not, will depend on the facts and circumstances of the particular case. Therein, it was reiterated that when Magistrate applies his mind for the purpose of section 200 of the Cr.P.C. and succeeding section of Chapter XV of the Cr.P.C. he has taken cognizance. 17. Therein, it was reiterated that when Magistrate applies his mind for the purpose of section 200 of the Cr.P.C. and succeeding section of Chapter XV of the Cr.P.C. he has taken cognizance. 17. If substance of all the judgments aforesaid are looking into, then it comes out that application of mind by Magistrate is necessary for taking cognizance. If on application of mind, he proceeds pursuant to section 200 of the Cr.P.C. and subsequent section under Chapter XV, it is to be treated as a case of taking cognizance irrespective of the fact that as to whether words cognizance taken have been written in the order or not. 18. Coming to the facts of this case, if initial order-sheets of the trial Court are looked into, then it becomes clear that on 26.8.2006 negative final report was produced, against which time was sought to file protest petition (P.P.). In view of prayer made, matter was adjourned for 6.9.2006. Thus, order dated 26.8.2006 cannot be said to be an order of taking cognizance though learned counsel for non-petitioner submitted that registration of negative final report is also to be treated as taking cognizance. Aforesaid argument cannot be accepted in the light of the order-sheet. If cognizance is taken with passing of registration of FR, then there was no need to defer the matter for arguments on the request for filing protest petition (P.P.). 19. Now, I come to the order dated 6.9.2006. This order is material because on this date, matter was fixed for taking evidence. In view of various judgments referred by learned counsel for non-petitioner, when Magistrate proceeds to record evidence of complainant, it can be said to be a case of taking cognizance of offence. On 6.9.2006 Magistrate was on leave, thus order for placing the case for recording evidence of the complainant cannot be said to be with application of mind by Magistrate rather it seems that order was recorded by Reader while Magistrate was on leave. In view of aforesaid facts, it becomes clear that there exists no application of mind by Magistrate for passing of order for recording evidence of complainant rather it is a case where while Magistrate was on leave, order of recording evidence of complainant was passed, thus question of application of mind by Magistrate does not arise. 20. In view of aforesaid facts, it becomes clear that there exists no application of mind by Magistrate for passing of order for recording evidence of complainant rather it is a case where while Magistrate was on leave, order of recording evidence of complainant was passed, thus question of application of mind by Magistrate does not arise. 20. In the case of Dilawar Singh vs. State of Delhi reported in (2007) 12 SCC 641 , the Hon'ble Apex Court after referring various earlier judgments on the issue as to whether cognizance of offence is taken or not, it was held that it will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Merely issuance of search warrant for the purpose of investigation or other similar action cannot mean that cognizance of the offence has been taken. It is only when Magistrate applies his mind for the purpose of proceeding under section 200 and subsequent section of chapter XV of the Cr.P.C., it can be said that after applying the mind, cognizance has been taken. 21. In a recent judgment in case of Devendra and others vs. State of Uttar Pradesh and another reported in (2009) 7 SCC 495 , the Hon'ble Apex Court while reiterating the legal position held that there should be application of mind for taking cognizance and application of mind should be reflected from the order itself. Para 28 of aforesaid judgment is quoted thus:- "28. Furthermore, in a case of this nature where even, according to Mr. Das, no case has been made out for taking cognizance of an offence under Section 420 of the Penal Code, it was .obligatory on the part of the learned Chief Judicial Magistrate to apply his mind to the contents of the charge-sheet. Such application of mind on his part should have been reflected from the order. (see State of Karnataka vs. Pastor P. Raju and Pawan Kumar Sharma vs. State of Uttranchal)." 22. In the aforesaid Para, judgment in case of State of Karnataka vs. Pastor P. Raju reported in (2006) 6 SCC 728 = RLW 2007(1) SC 200 has been referred. Therein it was held that dictionary meaning of word 'cognizance' is 'judicial hearing of matter'. In the aforesaid Para, judgment in case of State of Karnataka vs. Pastor P. Raju reported in (2006) 6 SCC 728 = RLW 2007(1) SC 200 has been referred. Therein it was held that dictionary meaning of word 'cognizance' is 'judicial hearing of matter'. In that case, the Hon'ble Apex Court made distinction between 'taking cognizance of the offence' and 'order of issuance of process.' Cognizance is taken at the initial stage when Magistrate applies his mind to the facts mentioned in the complaint or to a police report or upon information received from any other persons that an offence has been committed. Substance of the judgment aforesaid is that cognizance is said to have been taken when Magistrate applies his mind to proceed pursuant to provisions of the Cr.P.C. Thus, application of mind and reflection of same in the order is a pre-requisite condition to show cognizance of offence taken by Magistrate though it may not be necessary to write the words 'cognizance is taken. 23. In this case, two order-sheets quoted above do not reflect application of mind by the Magistrate for taking cognizance. On the first date, when negative final report was submitted, matter was deferred for filing protest petition (P.P.). This was precisely on 6.9.2009 i.e. on the next date when matter was kept for evidence, Presiding Officer was on leave, thus question of application of mind by the Magistrate does not arise. 24. In view of aforesaid, I am of the view that impugned order dated 18.11.2006 deserves to be quashed and set aside. Accordingly, Cr. Misc. Petition No. 107/07 is partly allowed. The order dated 18.11.2006 is quashed and set aside. The matter is remanded back to the Magistrate for applying his mind for taking cognizance of the offence before he proceeds to record evidence under Section 200 of the Cr.P.C. In view of the aforesaid directions, matter would be taken up by learned Magistrate from the initial stage for applying his mind for taking cognizance. Subsequent proceedings are, accordingly, set aside. Looking to the fact that matter is of the year 2006, it is expected from the learned Magistrate to expedite the matter. 25. In view of aforesaid observation and direction, Cr. Misc. Petition No. 2403/06 is disposed of.