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2014 DIGILAW 329 (RAJ)

Sansar Chandra v. State of Raj.

2014-01-30

KANWALJIT SINGH AHLUWALIA

body2014
Hon'ble AHLUWALIA, J.—The present petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in a case arising out of FIR No. 60/2005 registered at Police Station Regional Forest Officer, Digota, Ajabgarh, Distt. Alwar for the offences under Section 9, 39, 48-A, 49-A, 49-B, 50 and 51 of Wildlife Protection Act, 1972. 2. Counsel for the petitioner has submitted that petitioner is in custody since 21st July, 2013. 3. Shri Pankaj Gupta, appearing for the petitioner has firstly submitted that a complaint was filed against the co-accused of the petitioner in the year, 2005. Subsequently, a supplementary complaint was filed against the petitioner on 12th September, 2013. 4- Counsel for the petitioner has submitted that there is no provision in the Code of Criminal Procedure to file a supplementary complaint. 5. In support of this reliance has been placed by the counsel for the petitioner upon a judgment rendered in a case of Ajit Narain Haksar and others vs. Assistant Commissioner of Central Excise (Legal), Bangalore by a Single Judge of Karnataka High Court reported in 2003 Volume 1 Cri. CC page 139. A further reliance has been placed upon Vinay Tyagi vs. Irshad Ali reported in 2013 Volume 5 SCC 765. 6. This Court shall deal with first argument raised by counsel for the petitioner in the present case. After fining of the supplementary complaint, the trial Court has taken cognizance of offences against the petitioner. 7. It is necessary to reproduce Section 190 of the Code of Criminal Procedure- "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." 8. (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." 8. Section 190 of the Code of Criminal Procedure put no fetters or embargo on the powers of the Magistrate to take cognizance under Section 190 Cr.P.C. The Court can take cognizance of the offence upon on his own knowledge in case offence has been committed. The Court is not bound by the nomenclature given to the information. The information given if is called second complaint or a supplementary complaint shall not preclude the Court to treat it as an application, stating a fact, brought to the notice or knowledge of the Court that accused had committed an offence. The Court shall not take cognizance of that offence, if it is barred by way of limitation. 9. In the case of Vinay Tyagi (supra) the Hon'ble Apex Court while dealing with the powers of the Magistrate under Section 190 Cr.P.C. had observed as under:- "The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law." 10. Similarly in the case of Dharam Pal & Ors. vs. State of Haryana and Anr. reported in AIR 2013 SC 3018 , the Apex Court has held that the Magistrate is not bound by the reports submitted under Section 173 (3) Cr.P.C. The Constitutional Bench in Dharam Pal (supra) enlarged the powers of the Magistrate under Section 190 Cr.P.C. to summon another accused if in his opinion accused has committed offence. 11. In the case of Dr. Mrs. 11. In the case of Dr. Mrs. Nupur Talwar vs. C.B.I. Delhi and Another, reported in AIR 2012 SC 847 the Hon'ble Apex Court has reiterated the vide powers of the Magistrate under Section 190 Cr.P.C. by observing as under:- 17. Now the question is what should be the extent of judicial interference by this Court n connection with an order of taking cognizance by a Magistrate while exercising his jurisdiction under Section 190 of the Code. 18. Section 190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding. 19. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the Police in its report and may pram facie find out whether an offence has been made out or not. 20. The taking of cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. 21. At the stage of taking of cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record. 22. The principles relating to taking of cognizance in a criminal matter has been very lucidly explained by this Court in S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. and Ors. (2008) 2 SCC 492 , the relevant observations are set out:- "19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes" to take notice of judicially." It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." 20. Taking cognizance" does not involve any formal action of any kind. Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua nor or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." (Para Nos. 19 and 20 at page 499 of the report) 23. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. In the instant case, anyone reading the order of the Magistrate taking cognizance, will come to the conclusion that there has been due application of mind by the Magistrate and it is a well reasoned order. The order of the High Court passed on a Criminal Revision under Sections 397 and 401 of the code (not under Section 482) at the instance of Dr. Mrs. Nupur Talwar would also show that there has been a proper application of mind and a detailed speaking order has been passed. 12. In Samaj Parivartan Samudaya & Ors. vs. State of Karnataka & Ors., reported as AIR 2012 SC 2327 the Hon'ble Apex Court has enlarged the powers of the Magistrate to say that the ultimate duty of the Court is to arrive at truth. 13. The Hon'ble Apex Court in Para 36 of the judgment observed as under:- "36. Now, we shall proceed on the assumption that the illegalities, irregularities and offences alleged to have been committed by the affected parties are the subject matter, even in their entirety, of previous investigation cases, sub-judice before various Courts including the writ jurisdiction of the High Court. It is a settled position of law that an investigating agency is empowered to conduct further investigation after institution of a charge-sheet before the Court of competent jurisdiction. A magistrate is competent to direct further investigation in terms of Section 173(8) Cr.P.C. in the case instituted on a police report. It is a settled position of law that an investigating agency is empowered to conduct further investigation after institution of a charge-sheet before the Court of competent jurisdiction. A magistrate is competent to direct further investigation in terms of Section 173(8) Cr.P.C. in the case instituted on a police report. Similarly, the Magistrate has powers under Section 202 Cr.P.C. to direct police investigation while keeping the trial pending before him instituted on the basis of a private complaint in terms of that Section. The provisions of Section 210 Cr.P.C. use the expression `shall' requiring the Magistrate to stay the proceedings of inquiry and trial before him in the event in a similar subject matter, an investigation is found to be in progress. All these provisions clearly indicate the legislative scheme under the Now, we shall proceed on the assumption that the illegalities, irregularities and offences alleged to have been committed by the affected parties are the subject matter, even in their entirety, of previous investigation cases, sub-judice before various Courts including the writ jurisdiction of the High Court. t is a settled position of law that an investigating agency is empowered to conduct further investigation after institution of a charge-sheet before the Court of competent jurisdiction. A magistrate is competent to direct further investigation in terms of Section 173(8) Cr.P.C. in the case instituted on a police report. Similarly, the Magistrate has powers under Section 202 Cr.P.C. to direct police investigation while keeping the trial pending before him instituted on the basis of a private complaint in terms of that section. The provisions of Section 210 Cr.P.C. use the expression `shall' requiring the Magistrate to stay the proceedings of inquiry and trial before him in the event in a similar subject matter, an investigation is found to be in progress. All these provisions clearly indicate the legislative scheme under the Cr.P.C. that initiation of an investigation and filing of a chargesheet do not completely debar further or wider investigation by the investigating agency or police, or even by a specialized investigation agency, Significantly, it requires to be noticed that when the court is to ensure fair and proper investigation in an adversarial system of criminal administration, the jurisdiction of the Court is of a much higher degree than it is in an inquisitorial system. It is clearly contemplated under the Indian Criminal Jurisprudence that an investigation should be fair, in accordance with law and should not be tainted. But, at the same time, the Court has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. It is the inherent duty of the Court and any lapse in this regard would tantamount to error of jurisdiction." 14. The above important aspect of the matter has not been considered by the Karnataka High Court in the light of recent judgment of the Constitutio-nal Bench of Hon'ble Apex Court in the case of Dharam Pal's case (supra). Furthermore, Court can summon any accused as an additional accused at stage of taking cognizance by exercising powers under Section 190 Cr.P.C. 15. Counsel for the petitioner has submitted that in similar cases, petitioner was discharged by the Court of Additional Sessions Judge No. 1, New Delhi where supplementary complaint was filed. 16. Apparently a wrong view has been formulated by the Additional Sessions Judge No. 1, New Delhi to discharge the petitioner on the ground that supplementary complaint cannot be filed, as stated earlier utmost the term supplementary complaint can be treated as an application to take cognizance of the offence against accused not sent for trial earlier. Powers of the Court under Section 190 are very wide and cannot be restricted merely because an application or an information given to the Court has been given wrong name or pleadings has been given a different head note. 17. To re-enforce above argument, it is contended by the counsel for the petitioner that under the provisions of The Wild Life (Protection) Act, 1972, also supplementary complaint cannot be entertained. 18. The provisions of Code of Criminal Procedure, 1973 are applicable to the Wild Life (Protection) Act, 1972 (hereinafter called the `Act') therefore, the cognizance has been rightly taken by the Court below. 19. It is further urged by the counsel for the petitioner that it is a case of the prosecution that Hira Lal had made a statement that petitioner had purchased bones and skins of the tiger from him. 20. 19. It is further urged by the counsel for the petitioner that it is a case of the prosecution that Hira Lal had made a statement that petitioner had purchased bones and skins of the tiger from him. 20. Counsel for the petitioner has submitted that statement of the Hira Lal under Section 50(8) the Act cannot relate or be construed against the petitioner. As counsel for the petitioner submitted that statement of Hira Lal recorded before Assistant Conservator of Forest is not admissible in evidence in view of sub-section 8 and 9 of Section 50 of the Act. 21. It will be apposite here to reproduce Section 8 and 9 of Section 50 of the Act:- "(8). Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or (an officer not below the rank of Assistant Conservator of Forests, authorised by the State Government in this behalf) shall have the powers, for purposes of making investigation into any offence against any provisions of this Act,- (a) to issue a search warrant; (b) to enforce the attendance of witnesses; (c) to compel the discovery and production of documents and material objects; and (d) to receive and record evidence. (9). Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person." 22. A harmonious reading of sub-section 8 and 9 of the Section 50 of the Act make it apparent that in a subsequent trial, statement will be admissible only if it has been recorded in the presence of accused. It is not a case of any subsequent trial. At cost of repetition it is observed that in sub-section emphasis is on `subsequent trial.' 23. Here, in this case only statement has been recorded by the officer who was empowered to record the statement. 24. Lastly, it has been submitted that petitioner is suffering from Brain Tumor and, therefore, he should be released on bail on humanitarian grounds. 25. After going though the medical record of the accused annexed, this Court is of the view that it is not a case that petitioner require any immediate surgery. 26. 24. Lastly, it has been submitted that petitioner is suffering from Brain Tumor and, therefore, he should be released on bail on humanitarian grounds. 25. After going though the medical record of the accused annexed, this Court is of the view that it is not a case that petitioner require any immediate surgery. 26. That being so, taking totality of the circumstances, no ground is made to grant bail to the petitioner hence, present petition is dismissed.