Patna High Court
Vishwa Mohan Sinha vs State Of Bihar And Anr. on 26 August, 1996
Equivalent citations: 1997(2)BLJR1013
Author: P.K. Sarin
Bench: P.K. Sarin
JUDGMENT P.K. Sarin, J.
1. By this application under Section 482 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the Code) the petitioner seeks quashing of order dated 23.7.1996 passed by Judicial Magistrate, Patna, in complaint case No. 480 (c) of 1994 by which the learned Judicial Magistrate has rejected the application of the petitioner for sending back the case to the court of Chief Judicial Magistrate which had transferred the case under Section 192 of the Code to the Judicial Magistrate. Patna.
2. It appears that a criminal complaint was filed by opposite party No. 2 against the present petitioner and others in the court of Chief Judicial Magistrate who by his order dated 28.5.1994, after ordering the complaint to be registered, transferred the case under Section 192 of the Code to the Court of Sri Arunendra Singh, Judicial Magistrate, first class, Patna, for enquiry and disposal. On receiving the complaint case under the orders of the Chief Judicial Magistrate, the learned Judicial Magistrate recorded the statement of the complainant and the document filed by him he found the prima facie case to be made out for summoning the accused persons (including the petitioner) for the offences punishable under Sections 430 and 504 of the Code. This order was passed on 28.6.1994. The accused put in appearance. An application was filed on behalf of the accused person before the learned Judicial Magistrate that the transfer of case to his court by Chief Judicial Magistrate without taking cognizance is against the provisions of Section 192 of the Code, hence the case be transferred back to the court of Chief Judicial Magistrate. The le***ned Magistrate rejected the said application by the impugned order dated 23.7.1996. Feeling aggrieved by the said order the petitioner (one of the accused) has moved this application.
3. The learned Counsel for the petitioner has contended that the learned Chief Judicial Magistrate has himself not recorded the statement of the complainant under Section 200 of the Code which could be recorded only by the Magistrate taking cognizance and the transfer of the case under Section 192 of the Code could be done only after taking cognizance. The contention of the learned Counsel is that the cognizance cannot be taken unless the complainants are examined under Section 290 of the Code. His further contention is that record must show that the learned Magistrate has applied his judicial mind for taking cognizance. But, in the instant case, the learned Magistrate has simply ordered for registering the complaint any by the same order he has transferred the complaint under Section 192 of the Code to the learned Judicial Magistrate which is against the mandatory provision of Section 192 of the Code. Sub-section (1) of Section 192 of the Code lays down that any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for enquiry or trial to any competent Magistrate subordinate to him.
4. The learned Counsel for the petitioner has relied on a decision of this Court in the case of Ram Ekbal Pandey v. Kapildeo Rai 1983 BBCJ 717, wherein it has been held that Section 192 of the Code does not permit a routine order of transfer in a casual way. On the facts of the said case it was found that the learned Chief Judicial Magistrate did not apply judicial mind before passing the transfer order under Section 192 of the Code and as such cognizance could not be said to have been taken by him before making the transfer. In the said case the order passed by Chief Judicial Magistrate was as follows;
Complainant is present. The case is made over under Section 192, Cr PC to Sri R.P. Pandey, Motihari for enquiry and disposal in accordance with law. The Magistrate shall examine the complainant on S.A. The said order shows that the learned Chief Judicial Magistrate did not order for registering the case and he simply made over the case to another Magistrare for enquiry and disposal in accordance with law. It was contended on behalf of the accused in the said case before this Court that when the Chief Judicial Magistrate sends the petition of complaint for investigation or enquiry under Section 202 of the Code he can do it only after examining the complainant on oath because Code contemplates postponment of the issue of processes only under Section 202 of the Code. This Court expressed agreement with the said contention of the learned Counsel for the petitioner of that case. It may also be mentioned that in the said case the complaint was earlier sent by the learned Chief Judicial Magistrate for its investigation to Police and Police had submitted final form whereupon the complainant filed protest petition which was ordered to be registered as a complaint case and, thereafter, the said complaint (protest application) was made over under Section 192 of the Code to another Magistrate for enquiry and disposal. In the present case the original complaint itself has been ordered to be registered and transferred to the court of learned Judicial Magistrate for enquiry and disposal.
5. The learned Counsel for the petitioner has also relied on a decision of this Court in the case of Arvind Kumar Singh v. The State of Bihar 1990 BBCJ 142. Wherein it has been held that cognizance taken by a Judicial Magistrate after transfer of the complaint petition by the Chief Judicial Magistrate is without jurisdiction. It has been held that the Chief Judicial Magistrate can transfer a case only after taking cognizance. The order passed by the Chief Judicial Magistrate was as follows:
Lt the case be sent to Sri S.L. Daudi, Judicial Magistrate, first class, Patna, under Section 192 (1) of the Cr PC for enquiry and disposal.
Making reference to this order this Court observed that there is nothing in the order to indicate that the Chief Judicial Magistrate made over the case to another Magistrate after taking cognizance of an offence, as such the transfer order being against the provision of Section 192 (1) of the Code was illegal and the learned Magistrate, whom the complaint was made over had no jurisdiction to take cognizance and issue process.
6. The provisions of Section 19 and 192 of the Code came up for consideration before the Apex Court. The Apex Court in the case of Anil Saran v. State of Bihar and Anr. , has held that as soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc., cognizance is said to be taken. It is further observed that whether the Magistrate has taken cognizance of offence of a complaint or on a police report or upon information of a person other than the Police Officer, depends upon further action taken pursuant thereto and the attending circumstances of the particular case including the mode in which the case is sought to be dealt with or the nature of the action taken by the Magistrate. The Apex Court further considered the question of illegality in transfer of the complaint under Section 192 of the Code, the Apex Court held that a Magistrate who receives case on transfer and takes cognizance would not become incompetent to do so merely because the sanction of transfer of the case to his file is not in accordance with law. It has been further laid down that the power to take cognizance has been conferred on a Magistrate by Section 190 (1) of the Code and he would not be denuded of this power because the case has come to his file pursuant to some illegal order of the Chief Judicial Magistrate and the learned Magistrate (the case has come in pursuant to some order of the Chief Judicial Magistrate) is to exercise his power of taking cognizance even in such a case, because of his having received a complaint constituting the offence and it would not be material, for this purpose, as to how he came to receive the complaint whether directly or on transfer from the Chief Judicial Magistrate. The Apex Court held that even in case where the transfer order of Chief Judicial Magistrate under Section 192 of the Code is illegal the learned Magistrate, who receives the case on transfer, has jurisdiction to take cognizance and the illegality in the transfer order would not affect his jurisdiction.
7. In view of the law laid down by the Apex Court in the said case even if in the present case the transfer order by Chief Judicial Magistrate may be taken to be illegal, as contended by the learned Counsel for the petitioner, that would not affect the jurisdiction of the learned Judicial Magistrate, who has taken cognizance and order for issuance of processes. The order passed by the learned Judicial Magistrate in this regard cannot be said to be without jurisdiction and there was no occasion or necessity for sending back the record to the court of Chief Judicial Magistrate on the ground that the transfer was against the provision of Section 192 (1) of the Code. Therefore, the learned Magistrate has rightly rejected the application of the petitioner by the impugned order dated 23.7.1996. It does not appear to be abuse of the process of court nor it can be said that grave injustice is being caused by the impugned order.
8. In the circumstances, it is not a fit case for inference by this Court in exercise of its power under Section 482 of the Code. The application is dismissed accordingly.