Indresh Sharma and another Vs Indresh Sharma and another

Chhatisgarh High Court (Single Judge)

99 OF 2013 of 2015, Judgment Date: Feb 10, 2015

HIGH COURT OF CHHATTISGARH : BILASPUR
WRIT PETITION (Cr.) NO.99 OF 2013
PETITIONERS Indresh Sharma and another
Versus
RESPONDENTS Smt. Heera Bai and another
Single Bench : Hon'ble Shri Justice Prashant Kumar Mishra
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Present :- Shri Y.C. Sharma, Advocate for the petitioners.
Shri M. K. Bhaduri, Advocate for the respondent No.1.
Shri Adil Minhaj, Panel Lawyer for the State.
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O R D E R
(Passed on this 10th day of February, 2015)
1. In this writ petition under Article 226/227 of the Constitution of India
preferred by the accused persons, the question arises for
consideration is; when a Magistrate is said to have taken cognizance
of any offence; and whether once having taken cognizance of the
offence, it is open for the Magistrate to proceed under Section 156 (3)
of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'), for
directing investigation by the Police and submitting a report.
2. Complainant Smt. Heera Bai has filed a complaint against the
petitioners and three accused persons under Section 200 of the
Cr.P.C. alleging commission of offence under Sections 420, 467, 468
& 471 read with Section 34 of the Indian Penal Code (for short 'the
IPC'). When the complaint was filed on 03.05.2012 the Magistrate,
instead of proceeding to examine the complaint, postponed the issue
of process and directed the Police to submit a report. The concerned
police sought adjournment on further dates of hearing to produce the
report. On 01.05.2013 the complainant moved an application under
Section 156 (3) of the Cr.P.C. and the matter was posted for
submission of report by the police and for primary evidence. The
report was submitted by the police on 27.05.2013. The matter was
then posted for examination of the complainant's witnesses on
03.06.2013 and 02.08.2013, however, on this date the Magistrate
heard the parties on the complainant's application under Section 156
(3) and the same was allowed by the impugned order dated
19.08.2013, consequently, a direction has been issued to the Station
House Officer, Baloda Bazar to investigate the matter and submit the
final report.
3. It is contended by Shri Sharma, learned counsel appearing for the
petitioner, on the strength of the judgment of this Court rendered in
Smt. Rakhi Patel v. State of C.G. & Others1, that once the
Magistrate has taken cognizance, it was not open for him to proceed
under Section 156 (3) of the Cr.P.C.
4. Per contra, Shri Bhaduri, learned counsel appearing for the
respondent No.1/complainant, would argue that on the relevant date
the Magistrate had not taken cognizance of the offence when the
application under Section 156 (3) was allowed, therefore, the
impugned order does not suffer from any infirmity.
5. I have heard learned counsel appearing for the parties, perused the
pleadings and the documents appended thereto.
12013 (3) C.G.L.J. 638
2
6. The order sheets of the trial Court would reveal that initially the
Magistrate did not examine the complainant on the date when the
complaint was filed and instead it postponed the issue of process and
sought a report from the police. Pending submission of report by the
concerned police, the matter was fixed for examination of
complainant, however, in the meanwhile the complainant also moved
an application under Section 156 (3). The order sheets further reveal
that the concerned police submitted the report, but the Magistrate did
not consider the report and again fixed the matter for recording of the
evidence of the complainant witnesses, but later on proceeded to
deal with the application under Section 156 (3) of the Cr.P.C.
7. This Court in Smt. Rakhi Patel (supra) has referred the decisions of
the Supreme Court in Tula Ram and others v. Kishore Singh2 and
Mohd. Yousuf v. Afaq Jahan (Smt) and another and concluded that
in the said case, the Magistrate having taken cognizance of the
offence it could not have later on exercised the jurisdiction under
Section 156.
8. In S.K. Sinha, Chief Enforcement Officer v. Videocon
International Ltd. and others3 the Supreme Court held that 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
2AIR 1977 SC 2401
3(2008) 2 SCC 492
3
takes judicial notice of an offence with a view to initiating proceedings
in respect of such offence said to have been committed by someone.
The Supreme Court further held that “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 non 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.
(Emphasis supplied)
9. In Superintendent and Remembrancer of Legal Affairs, West
Bengal v. Abani Kumar Banerjee4 the High Court of Calcutta had an
occasion to consider the ambit and scope of the phrase “taking
cognizance” under Section 190 of the Code of Criminal Procedure,
1898 which was in pari materia with Section 190 of the present Code
of 1973. Referring to various decisions, Das Gupta, J. (as His
Lordship then was) stated: (AIR p. 438, para 7)
“7...… 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 Section
190(1)(a) CrPC, 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
4AIR 1950 Cal 437
4
indicated in the subsequent provisions of this Chapter,
proceeding under Section 200, and thereafter sending it
for enquiry and report under Section 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 Section 156(3), or issuing a
search warrant for the purpose of the investigation, he
cannot be said to have taken cognizance of the
offence.....”.
(Emphasis supplied)
10. In R.R. Chari v. The State of Uttar Pradesh5, the Supreme Court
had an occasion to consider the circumstances under which
cognizance of offence under sub-section (1) of Section 190 of the
Cr.P.C. can be taken by a Magistrate. After referring to the decision
of Calcutta High Court in Abani Kumar Banerjee (supra), the
Supreme Court held thus:
“3. It is clear from the wording of the section that the
initiation of the proceedings against a person
commences on the cognizance of the offence by the
Magistrate under one of the three contingencies
mentioned in the section. The first contingency evidently
is in respect of non-cognizable offences as defined in
CrPC on the complaint of an aggrieved person. The
second is on a police report, which evidently is the case
of a cognizable offence when the police have completed
their investigation and come to the Magistrate for the
issue of a process. The third is when the Magistrate
himself takes notice of an offence and issues the
process. It is important to remember that in respect of
any cognizable offence, the police, at the initial stage
when they are investigating the matter, can arrest a
person without obtaining an order from the Magistrate.
Under Section 167(b) CrPC the police have of course to
put up the person so arrested before a Magistrate within
24 hours and obtain an order of remand to police
custody for the purpose of further investigation, if they
so desire. But they have the power to arrest a person for
the purpose of investigation without approaching the
Magistrate first. Therefore, in cases of cognizable
offence before proceedings are initiated and while the
5AIR 1951 SC 207
5
matter is under investigation by the police the suspected
person is liable to be arrested by the police without an
order by the Magistrate..... ”
11. Once again in Narayandas Bhagwandas Madhavdas v. The State
of West Bengal6, the Supreme Court observed that the question as
to when cognizance is taken of an offence depends upon the facts
and circumstances of each case and it is impossible to attempt to
define what is meant by taking cognizance.
12. In Gopal Das Sindhi and others v. State of Assam and another7,
the Supreme Court held thus:
“7....…We cannot read the provisions of Section 190 to
mean that once a complaint is filed, a Magistrate is
bound to take cognizance if the facts stated in the
complaint disclose the commission of any offence. We
are unable to construe the word ‘may’ in Section 190 to
mean ‘must’. The reason is obvious. A complaint
disclosing cognizable offences may well justify a
Magistrate in sending the complaint, under Section
156(3) to the police for investigation. There is no reason
why the time of the Magistrate should be wasted when
primarily the duty to investigate in cases involving
cognizable offences is with the police. On the other
hand, there may be occasions when the Magistrate may
exercise his discretion and take cognizance of a
cognizable offence. If he does so then he would have to
proceed in the manner provided by Chapter XVI of the
Code......”
13. In a very recent decision rendered in Sarah Mathew v. Institute of
Cardio Vascular Diseases by its Director Dr. K.M. Cherian and
Others8, the issue as to when cognizance is said to have been taken
by the Magistrate again fell for consideration and the Supreme Court
after referring to umpteen number of previous judgments including
6AIR 1959 SC 1118
7AIR 1961 SC 986
8(2014) 2 SCC 62
6
R.R. Chari (supra), Jamuna Singh and others v. Bhadai Shah9 and
Gopal Das Sindhi (supra) held thus :
32. In Jamuna Singh v. Bhadai Shah, relying on R.R.
Chari and Gopal Das Sindhi v. State of Assam, this Court
held that: (Jamuna Singh case, AIR p. 1544, para 8)
“8. … It is well settled now that when on a petition
of complaint being filed before him a Magistrate
applies his mind for proceeding under the various
provisions of Chapter XVI of the Criminal
Procedure Code, he must be held to have taken
cognizance of the offences mentioned in the
complaint.”
The Supreme Court then took note of its judgment rendered in
Videocon International Ltd. (supra) particularly paras 19 & 20 of the
said judgment which have been discussed by me in para 8 of this
judgment. The Supreme Court thereafter, in para 34, concluded
thus :
“34. Thus, a Magistrate takes cognizance when he
applies his mind or takes judicial notice of an offence
with a view to initiating proceedings in respect of offence
which is said to have been committed. This is the special
connotation acquired by the term “cognizance” and it has
to be given the same meaning wherever it appears in
Chapter XXXVI. It bears repetition to state that taking
cognizance is entirely an act of the Magistrate. Taking
cognizance may be delayed because of several reasons.
It may be delayed because of systemic reasons. It may
be delayed because of the Magistrate’s personal
reasons.”
14. While dealing with the power directing investigation, pre and post
taking cognizance by the Magistrate under Section 156 (3) & 202 of
the Cr.P.C., the Supreme Court in Tula Ram (supra) has held that
where a Magistrate chooses to take cognizance, he has following
options (a) in case he is satisfied that there is sufficient ground for
9AIR 1964 SC 1541
7
further proceeding, he can straightway issue process to the accused
after complying with the requirement of Section 200 of the Code; (b)
postpone the issue of process and direct an enquiry by himself; and
(c) postpone the issue of process and direct an enquiry by any other
person or an investigation by the police, and thereafter pass order,
but the Magistrate not taking cognizance of the offence is empowered
to order for investigation by the police under Section 156 (3) of the
Cr.P.C.. The Supreme Court has observed in para 14 of the said
judgment as follows:-
“14. In these circumstances we are satisfied that
the action taken by the Magistrate was fully
supportable in law and he did not commit any error
in recording the statement of the complainant and
the witnesses and thereafter issuing process
against the appellants. The High Court has
discussed the points involved thread-bare and has
also cited a number of decisions and we entirely
agree with the view taken by the High Court. Thus
on a careful consideration of the facts and
circumstances of the case the following legal
propositions emerge:
1. That a Magistrate can order investigation
under Section 156(3) only at the
pre-cognizance stage, that is to say,
before taking cognizance under Sections
190, 200 and 204 and where a Magistrate
decides to take cognizance under the
provisions of Chapter 14 he is not entitled
in law to order any investigation under
Section 156(3) though in cases not falling
within the proviso to Section 202 he can
order an investigation by the police which
would be in the nature of an enquiry as
contemplated by Section 202 of the
Code.
2. Where a Magistrate chooses to take
cognizance he can adopt any of the
following alternatives:
8
(a) He can peruse the complaint and if
satisfied that there are sufficient
grounds for proceeding he can
straightaway issue process to the
accused but before he does so he
must comply with the requirements of
Section 200 and record the
evidence of the complainant or his
witnesses.
(b) The Magistrate can postpone the
issue of process and direct an enquiry
by himself.
(c) The Magistrate can postpone the
issue of process and direct an enquiry
by any other person or an
investigation by the police.
3. In case the Magistrate after considering
the statement of the complainant and the
witnesses or as a result of the investigation
and the enquiry ordered is not satisfied
that there are sufficient grounds
for proceeding he can dismiss the
complaint.
4. Where a Magistrate orders investigation by
the police before taking cognizance under
Section 156(3) of the Code and receives
the report thereupon he can act on the
report and discharge the accused or
straightaway issue process against the
accused or apply his mind to the complaint
filed before him and take action under
Section 190 as described above.”
(Emphasis supplied)
15. Like in the present case, in the matter of Smt. Rakhi Patel (supra)
also the Magistrate had initially summoned for police report and fixed
the matter for recording complainant’s evidence before registering the
matter. Thus, the facts are similar. The Magistrate having fixed the
9
matter for recording the evidence of complainant’s witnesses to
examine as to whether process needs to be issued to other party, he
cannot, later on, invoke powers under Section 156 (3) of the Cr.P.C.
and choose different nature of enquiry/investigation before issuing the
process.
16. As a sequel, the writ petition is allowed. No order as to costs.
J u d g e
Gowri
1