Karnataka High Court
State By A. Mahadeva vs Papireddy on 19 November, 1987
Equivalent citations: ILR1988KAR666
ORDER Kulkarni, J.
1. This is a revision against the order dated 4-7-1987 passed by the Judicial Magistrate, First Class, Sidlaghatta, in C.C.No. 395/87 issuing process against one Mahadevaiah for the offence punishable under Sections 499, 500 and 510 I.P.C.
3. This complaint was filed on 4-7-1987. The Magistrate after hearing the complainant recorded the sworn statements of the complainant and his two witnesses viz., Rama Reddy P.W.2 and Krishnappa P.W.3 and issued process against the accused for the offences under Sections 499, 500 and 510 I.P.C.
4. The accused being aggrieved by the said order issuing process has approached this Court with this revision.
5. The learned State Public Prosecutor Shri Kuranga submitted that the order of issue of process was bad as there was nothing to indicate that the Magistrate took cognizance of the offences before he commenced recording the sworn statements of the complainant and his witnesses. According to him, non-taking of the cognizance before proceeding to record the sworn statements of the complainant and his witnesses, rendered all the subsequent proceedings void and bad at law. Thus, according to him, the issue of process which occurred only after recording the sworn statements of the complainant and his witnesses, rendered all the proceedings even including the order of issue of process bad at law.
6. Section 200 Cr.P.C. reads as :-
"A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate etc., etc.,"
(underlining is mine) Therefore the stage of taking cognizance must be prior to the act of the Magistrate recording the sworn statements of the complainant and his witnesses.
7. it has been held in REVANAPPA AND ANOTHER v. S.N. RAGHUNATH, 1982(2) KLJ 350 as :-
"Where on a private complaint the Magistrate straightaway proceeded to examine the complainant and his witnesses and thereafter came to the conclusion that it was a fit case to take cognizance of the offence against the accused, it is opposed to the mandatory provision of law.
Where there is no indication whether in fact the Magistrate has applied his mind to the relevant facts narrated in the application and whether it is a fit case wherein he could pass an order under Section 94 Cr.P.C. the order suffers from vagueness and it is liable to be set aside."
8. The Supreme Court also in GOPAL DAS SINDHI AND OTHERS v. STATE OF ASSAM AND ANOTHER, AIR 1961 SC 986 has stated in para 7 on page 988 as :-
"When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station, Gauhati, for investigation. Section 156(3) states "Any Magistrate empowered under Section 190 may order such investigation as above mentioned." Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342, and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. 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 as to 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."
The said Supreme Court decision is an authority for the proposition that if the Magistrate wants to proceed under Section 200 Cr.P.C. he must take cognizance of the offence and after taking cognizance of the offence he must proceed under Section 200 Cr.P.C. and the subsequent Sections.
9. A similar question arose before this Court in D.P. SHARMA v. C.R. GOWDA, 1982(2) KLC 358 to which I was a party. It has been stated in para 7 as :-
"The expression "taking cognizance" is not defined in the Code of Criminal Procedure. In its broad and literal sense, it means "taking notice of an offence" and would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. Before it can be said that any Magistrate has taken cognizance of any offence under Section 190 Cr.P.C. he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XIV. When the Magistrate applies his mind not for the above purpose but for taking action of some other kind eg., 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; (vide ). Before a Magistrate can be said to have taken cognizance of an offence, he must have not only applied his mind to the contents of the complaint or the police report or the information presented before him, but must have done so for the purpose of proceeding under the provisions subsequent to Section 190 for bringing the offender to trial. Obviously it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent Sections of Chapter XV of the Code or under Section 204 of Chapter XVI of the Code that it can be positively stated that he has applied his mind and, therefore, has taken cognizance. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. Cognizance of an offence is a step towards the exercise of jurisdiction"
In para 9 on page 360 of the same ruling, it is stated as :-
"Therefore, taking cognizance of an offence must precede examination upon oath of the complainant. Therefore, examination of the complainant on oath without taking cognizance of an offence would definitely render the subsequent proceedings invalid."
In para 10 on page 360 of the same ruling, it is stated as :-
"Therefore, now we have to see in this case whether the Magistrate before he recorded the sworn statement of the complainant, had taken cognizance of the offence. There is a note on the front page of the complaint itself that "the complaint is presented at 3 p.m. register it as P.C. and call on 6-2-1980." This endorsement clearly goes to show that the Magistrate has applied his mind to the contents of the complaint and, therefore, he adjourned the case for recording the sworn statement of the complainant as required under Section 200. This endorsement coupled with the fact that the Magistrate adjourned the case for recording the sworn statement of the complainant, leaves no doubt in our mind that the Magistrate did apply his mind to the contents of the complaint and found that it was a fit case for taking cognizance and therefore, he adjourned the case for recording the sworn statement of the complainant. Therefore, the argument of Sri Desai that there was no material to show that the Magistrate took cognizance of the offence first before he recorded the statement on oath of the complainant, does not appeal to us in the least. As already stated above, the said endorsement made by the Magistrate coupled with the fact that he adjourned the case for recording the sworn statement of the complainant leaves no doubt in our mind that the Magistrate applied his mind clearly to the allegations in the complaint and after finding that the allegations made in the complaint were sufficient enough to follow the next procedure i.e., recording of sworn statement, he adjourned the case and on the next date he recorded the sworn statement of the complainant. Therefore, we find that the Magistrate has followed the procedure as enjoined on him by Section 200. Therefore, recording of sworn statement and the subsequent issue of process are perfectly legal and in accordance with law."
Therefore reading as a whole Section 200 Cr.P.C. and Section 190 Cr.P.C. and in view of the said decision, I am firmly of the opinion that the act of the Magistrate taking cognizance of the offence must precede the act of recording the sworn statements of the complainant and his witnesses if any. If the Magistrate proceeds to record the sworn statements of the complainant and his witnesses without taking cognizance of the offence, the subsequent act of recording the sworn statements of the complainant and his witnesses and the order of issuing process as a consequence thereof would be bad at law. But if the circumstances in the case go to indicate that the Magistrate applied his mind to the allegations mentioned in the complaint and after having applied his mind he proceeded to record the sworn statements of the complainant and his witnesses, it will only follow that the Magistrate on taking cognizance proceeded to record the sworn statements of the complainant and his witnesses. In this case, the order sheet maintained by the Magistrate would read as :-
"Complainant present and submitted that the complaint is preferred against the accused Mahadevaiah who is Assistant Commissioner, Chickballapur Sub Division and he is a Government official. If complaint is referred to the concerned police, there would be no effective action against the accused and no justice could be got from the end of police and he further submitted that he has apprehension that no investigation will be taken up and moreover the offences alleged are of non-cognizable one ; even on this score also the police of Sidlaghatta police station will not take action. Hence prays for taking of cognizance of the offences alleged against the accused after taking sworn statement of the complainant and the witnesses.
Accordingly having satisfied with the submission of the complainant, I determined to examine on oath the complainant and the witnesses if any on behalf of the complainant to see the truth and tenability of the allegation. Accordingly the complainant M. Papireddy and two witnesses one by name Ramareddy and another Krishnappa examined on oath. No more witnesses present for examination on oath."
I perused the statements of the complainant and the witnesses who deposed before the Court. Prima facie there are material evidence to believe that the accused has committed offences as alleged by the complainant, accordingly having taken the cognizance of the offences punishable under Sections 499 read with Section 500 I.P.C. and under Section 510 of I.P.C I order to register the case against the accused and to issue summons to the accused returnable by 13-7-87."
10. The above order sheet would clearly go to show that the complainant himself wanted the Magistrate to take cognizance of the offences only after recording the sworn statements of himself and his witnesses. The Court also has nowhere stated that it took cognizance or it applied its mind to the allegations made in the complaint before recording the sworn statements of the complainant and his witnesses. The order sheet only shows that the Magistrate was satisfied with the statement made by the complainant that the complaint should not be referred to the police, because they would not carry out any investigation. Perhaps the said statement made by the complainant would go to show that he had no faith in police. There is nothing in the complaint or in the order sheet to show that the Magistrate even had chosen to go through the complaint, before he proceeded to record the sworn statements of the complainant and his witnesses. The later portion of the order sheet would go to show that only after recording the sworn statements of the complainant and his witnesses and after going through the same, he took cognizance of the offences and also proceeded to issue process against the accused. Therefore in this case, the act of taking of cognizance of the offences contemplated by Sections 190 and 200 Cr.P.C. and the order of issue of process contemplated under Section 204 Cr.P.C. were simultaneous. Therefore the Magistrate committed an error in not taking cognizance of the offence before he proceeded to record the sworn statements of the complainant and his two witnesses.
11. In other words, cognizance of the offence can be taken only once and not twice in a case. The cognizance contemplated by Sections 190 and 200 Cr.P.C. must precede the act of the Magistrate in recording the sworn statements of the complainant and his witnesses. The law comtemplates the first stage of taking cognizance of an offence. If the complaint itself does not make out any allegation, the Magistrate can dismiss the complaint at this stage itself and thus avoid recording the sworn statements of the complainant and his witnesses. As already indicated above, there is nothing anywhere in the order sheet or the complaint to show that the Magistrate even chose to go through the allegations made in the complaint and took cognizance of the offence, before he proceeded to record the sworn statements of the complainant and his witnesses as contemplated by Section 200 Cr.P.C. Therefore the order of issuing process which, in my opinion, has been done in this case along with taking cognizance is bad at law and the entire proceedings are vitiated and deserve to be quashed.
12. The order of issue of process has been quashed in this case only on the technical ground of non-compliance with Section 190 and Section 200 Cr.P.C. The interest of justice cannot be allowed to suffer on account of non-compliance with the technical provisions of law. Therefore I think that it is a fit case where the matter should be sent back to the Magistrate with a direction that he should first consider whether he wants to take cognizance of the offence and if he thinks that it is a fit case to take cognizance he should leave note that he has taken cognizance of the offence and if he chooses to take cognizance of the offence, he should proceed to record afresh the sworn statements of the complainant and his witnesses and if he is satisfied with the sworn statements of the complainant and the witnesses if any examined, he may proceed under Section 204 Cr.P.C.
13. The complainant has filed the complaint against one Mahadevaiah who is working as Sub Divisional Magistrate, Chickballapur. He has not filed the complaint against the State or against the accused in his capacity as a public servant. Therefore it is Mahadevaiah who is shown as an accused that ought to have come in revision to this Court. Unfortunately the revision has been filed describing the revision petitioner as "State by A. Mahadeva, Assistant Commissioner and Sub-Divisional Magistrate, Chickballapur Sub Division, Kolar District." It appears to be a misdescription of the accused so far as the revision is concerned. But the fact remains that A. Mahadeva is a party to the present revision. It is hoped that under such circumstances the State ought not to have evinced interest in the matter. It ought to have left the matter to the accused Mahadeva only. The State Public Prosecutor submitted that the State was misled as Mahadevaiah had been described in the complaint itself as Sub Divisional Magistrate. But whatever be the reason, the State ought not to have filed the revision as the complaint has been filed describing the accused as A. Mahadeva. The other contentions raised by the State Public Prosecutor regarding want of sanction contemplated by Section 197 Cr.P.C. is not decided in this case, as the matter is disposed of only on the said technical ground. The other contentions also have not been decided in this case and they are kept open.
14. In the result, the order passed by the Magistrate is set aside. The revision is allowed. The matter is sent back to the Magistrate for fresh disposal in accordance with law in the light of the directions given above.