Orissa High Court
Pitambar Buhan And Anr. vs State on 31 July, 1991
Equivalent citations: 1992CRILJ645
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. What is meant by taking cognizance under the Code of Criminal Procedure, 1973 (in short 'the Code'), and the scope for interference with an order taking cognizance form the subject-matter of adjudication in this case.
2. Advertence to factual aspects shall be made later, because analysis of the aforesaid legal positions would have effect thereon.
3. Section 190 of the Code deals with power of the Magistrate to take cognizance. It provides that subject to the provisions of Chapter XIV, 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, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 191 obliges the Magistrate when he takes cognizance of an offence under Clause (c) of Sub-section (1) of Section 190, to inform the accused when he appears before him, that he is entitled to have the case inquired into or tried by another Magistrate. Section 193 provides that except as otherwise expressly provided in the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.
4. "Cognizable offence" has been defined in Section 2(c) of the Code to mean 'an offence for which, and cognizable case means a case in which, a police officer may in accordance with the First Schedule or under any law for the time being in force, arrest without warrant'. "Complaint" is defined in Section 2(d) to mean 'any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does hot include a police report'. There is an explanation appended to the said section. Section 2(e) defines 'non-cognizable offence and 'police report' is defined in Section 2(r) to mean a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173.
5. Taking cognizance means judicial application of mind by the Magistrate to the facts mentioned in the complaint with a view to taking further action. What Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. (See Tula Ram v. Kishore Singh, AIR 1977 SC 2401 : (1978 Cri LJ 8). Taking cognizance is the threshold act of judicial proceeding relating to an offence. Acts of the Magistrate before taking cognizance are not judicial acts relating to the offence. Cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. (See Darshan Singh Ram Kishan v. State of Maharashtra : (1972) 1 SCR 571) : (1971 Cri LJ 1697). Taking cognizance includes the intention of initiating a judicial proceeding against an offender in respect of an offence or taking steps to see whether there is basis for initiating judicial proceeding or for other purpose. Till the process is issued, the accused does not come into the picture at all. He may physically attend but is not entitled to take part in the proceeding. (See Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947 : I 1976 Cri LJ 1533. The process of securing presence of an accused is mentioned in Section 204 of the Code. 'Cognizance' is defined in Wharton's Law Lexicon (14th Ed.) as taking note judicially. Taking cognizance implies and imperates at application of judicial mind for the purpose of finding out whether there is suspected commission of an offence. It is a matter of substance and not formality. The Magistrate is not supposed to act in mechanical manner to take cognizance. The Code makes distinction between taking cognizance of a case and its subsequent trial. There was some amount of controversy as to whether the Magistrate is bound to take cognizance as soon as a complaint is filed before him, or it is open to him to take other steps. The position, however, is now settled in the sense that it has been held by the Supreme Court that as soon as a complaint is filed, the Magistrate is not bound to take cognizance of the offence and proceed under the provisions of Chapter XV of the Code -- (See Tula Ram's case (supra)). The Magistrate takes cognizance of the offence and not the offender. Once the Magistrate takes cognizance of an offence, he acquires the jurisdiction and duty to proceed against those who are really involved in the commission of offence. He has also power to proceed against those whose names do not find place in the complaint or are stated to be not known. Cognizance is something prior to and does not necessarily mean commencement of a judicial proceeding against any one in particular. At the stage of taking cognizance, the Magistrate is not required to find out or evaluate whether there is any material against a particular person. (See Sharda Prasad Sinha v. State of Bihar, AIR 1977 SC 1754 : (1977 Cri LJ 1146) Trilok Singh v. Satya Deo Tripathi, AIR 1979 SC 850 : (1981 Cri LJ 822) and Municipal Corporation of Delhi v. Purshotam Dass Jhunjhunwala, AIR 1983 SC 158 : (1983 Cri LJ 172).
6. Since the act of taking cognizance is not a matter of empty formality, a revisional court can interfere with an order of the Magistrate to issue process (a) where the allegations made in the complaint or statements of witnesses recorded in support of the same taken on the face value do not make out any case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (b) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (c) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible, and (d) where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of complaint by legally competent authority and the like.
7. The jurisdiction to quash the order taking cognizance can be exercised in rarest of rare cases. It should be the exception, but not the rule. The object behind this view is that the accused at the state of framing charge can bring to the notice of the court that there is no acceptable and/or legal material to proceed against him. The apex Court expressed similar view in AIR 1978 SC 1568 : (1978 Cri LJ 1687) Hareram Satpathy v. Tikaram Agarwala. Obviously, the person seeking for revision would be the accused because he is the person primarily prejudiced by an order taking cognizance. At his instance a revision is maintainable. But as indicated above, the scope of interference is very limited and the Court should be slow to exercise the jurisdiction, unless the continuance of the proceeding would be abuse of the process of the Court and/or the order taking cognizance is the result of complete non-application of mind. If the allegations do not constitute the offence, or the ingredients of the offence are nonexistent, or the allegations are mala fide, frivolous or vexatious, there may be justification for interference. (See Mrs. Dhanalak-shmi v. R. Prasanna Kumar, AIR 1990 SC 494 : (1990 Cri LJ 320)). Appropriately, therefore, in a case where the accused feels that the order taking cognizance is unwarranted, he can raise the dispute at the time of framing charge. It is not without reason, legislature has prescribed two stages; one for taking cognizance and other for framing charge. There is no overlapping. In the former stage, accused has practically no role to play, while in the latter stage he comes to the forefront.
8. Coming to the facts involved in the case at hand, I find that on 18-1-1990 first information report was lodged in Sukinda Police Station alleging that on 10-1-1990 while deceased Khageswar Ojha was going on a bicycle on the village road, the petitioners restrained him on the way and demanded their dues from him as a result of which quarrel ensued in course of which the petitioners assaulted the deceased. While Khageswar was going away from the place of occurrence, after a certain distance the front wheel of his cycle dashed against a road-side fence as a result of which he fell down from the cycle and sustained fracture of his hand. He was thereafter taken to Sukinda Hospital where the doctors expressed reluctance to treat him and therefore, he was treated by a private doctor at Kamakshyanagar. When his conditions deteriorated, he was admitted to S. C. B. Medical College Hospital on 16-1-1990 where he expired on 18-1-1990. During investigation of the case, police examined some witnesses almost all of whom stated that during altercation regarding payment of dues, petitioner No. 1 dealt a slap to Khageswar. The final report submitted by the police indicated that while going away, the deceased dashed against the road-side fence, and fell down as a result of which his hand was fractured. Due to improper treatment the hand became septic and he expired at S. C. B. Medical College Hospital as aforesaid. The final report was not accepted and the learned Judicial Magistrate, first class, took cognizance under Section 304 of the Indian Penal Code, 1860 (in short 'IPC'). It is submitted by the learned counsel for the petitioners that the facts as alleged even if accepted in toto do not make out a case under Section 304.
9. The petitioners have prayed for quashing cognizance taken against them. The learned counsel for the State, however, states that microscopic examination of the materials is not warranted at the stage of taking cognizance and therefore, the possibility of conviction or acquittal is not the test. On consideration of the rival submission, I find that the learned Magistrate appears to have mechanically taken cognizance under Section 304, IPC. It would be in the interest of justice if he considers the materials on record afresh, and passes a fresh order keeping in view the principles indicated above.
The criminal misc. case is accordingly disposed of.