Allahabad High Court
Smt.Laxmi Devi And 3 Ors. vs State Of U.P.& Another. on 31 July, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED AFR Case :- U/S 482/378/407 No. - 1888 of 2005 1. Smt. Laxmi Devi, w/o Vijai Pratap Singh 2. Smt. Jai Lalti Devi, w/o Indra Bahadur Singh 3. Vijai Pratap Singh, s/o Ram Dev Singh 4. Indra Bahadur Singh, s/o Ram Dev Singh All R/O Kanchana Pur P.S. Colonel Ganj District Gonda .................. Petitioners Versus 1. State of U.P. 2. Satrohan Singh S/O Sri Ram Sunder R/O Vill. Kanchana Pur P.S. Colonel Ganj, District Gonda ................... Respondents Hon'ble Anil Kumar Srivastava-II,J.
1. Heard learned counsel for the petitioner, learned A.G.A. and perused the record. None appeared for the opposite party no.2.
2. Petition has been preferred to quash the proceedings of Criminal Case No.1151/2005, State vs. Ramdev Singh pending before learned Chief Judicial Magistrate, Gonda.
3. Learned counsel for the petitioner submits that an FIR was lodged by opposite party no.2 Shatrughan Singh against Ramdev Singh and others on 10.12.1998 regarding an incident which took place on 29.10.1998. FIR was registered at case crime no.813/03/98 under section 143, 506, 419, 420, 468, 471 IPC. Investigation was conducted wherein final report was submitted by the investigating officer. Notices were issued to the complainant who has filed protest petition. Learned Chief Judicial Magistrate Gonda vide order dated 13.10.1999 rejected the final report and registered the same as a complaint case. Date for recording the statement of complainant under section 200 CrPC was fixed.
4. Feeling aggrieved, complainant preferred criminal revision no.507/1999 which was decided by the learned Additional Sessions Judge Gonda vide judgment dated 09.02.2000. Revision was allowed. Order of the learned Chief Judicial Magistrate was set aside. Learned Magistrate was directed to decide the protest petition afresh.
5. Learned Magistrate recorded the statement of complainant under section 200 CrPC and witnesses under section 202 CrPC. Thereafter, an order was passed rejecting the final report. Direction was issued to reinvestigate the matter in the light of statement recorded under section 200 and 202 CrPC. Consequent upon the order after investigation police submitted a charge sheet against the accused on 22.11.2004, under section 419, 420, 467, 468, 471, 504, 506 IPC. Learned Chief Judicial Magistrate took the cognizance on the charge sheet on 23.6.2005.
6. Learned counsel for the petitioner submits that the learned trial court has erred in taking the cognizance on the basis of charge sheet submitted by the police. It is submitted that once the learned Magistrate has registered the case as complaint case then it means that he has taken the cognizance. Cognizance can be taken once only. Once cognizance is taken then again the cognizance taken by the learned Magistrate is bad in law.
7. Learned counsel has placed reliance upon S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. And Others, (2008) 1 SCC (Cri) 471; Devarapalli Lakshminarayana Reddy and Others vs. V. Narayana Reddy and Others, (1976) 3 SCC 252 and Mohd. Yousuf vs. Smt. Afaq Jahan and Another, [2006 (1) JIC 769 (SC)].
8. Notices were issued to the opposite party no.2 but none appeared on behalf of opposite party no.2.
9. In S.K. Sinha (supra) it was held that the word cognizance has not be defined in the Court. It was held in para 19, 20 of S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd and Others, (2008) 1 Supreme Court Cases (Cri) 471 that :-
"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. 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."
10. In Devrapalli Lakshminarayana Reddy and Others vs. V. Narayana Reddy and Others, (1976) 3 Supreme Court Cases, 252, it was held in para 14 that :-
14............"Broadly speaking, when on receiving a complaint, the magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1) (a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence."
11. It was held in Mohd. Yousuf vs. Smt. Afaq Jahan and Another, [2006 (1) JIC 769 (SC)] in para 7, 9 and 10 that :-
"7. Chapter XII of the Code contains provisions relating to "information to the police and their powers to investigagte", whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor, i.e., complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to direct an investigation by a police officer". But the investigation, envisaged in Section 202 is different from the investigation contemplates in Section 156 of the Code.
9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202 (1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202 (1) i.e., "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding".
10. This is because he has already taken cognizance of the offence disclosed in th complaint, and the domain of the case would thereafter vest with him.
12. In S.R. Sukumar vs. S. Sunaad Raghuram, (2015) 9 SCC 609, Hon'ble Apex Court relied upon a judgment of three judges bench of the Apex Court in R.R. Chari vs. State of U.P., AIR 1951 Supreme Court 207 and approved the decision of the Calcutta High Court in Supt. And Remembrancer of legal affairs vs. Abani Kumar Banerji, AIR 1950 Calcutta 437 wherein it was held in para 9 that :-
"9........... 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) of the Criminal Procedure Code, 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 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.' (Supt. And Remembrancer of Legal Affairs case, AIR 1950 Cal 437).
13. In Priyanka Srivastava vs. State of U.P., (2015) 6 scc 287, Hon'ble Apex Court placed reliance upon CREF Finance Limited vs. Shri Shanti Homes Private Limited (2013) 5 SCC 467 wherein it was held that the Magistrate may consider it appropriate to send the complaint to the police for investigation under section 156(3) CrPC.
14. In Mahadeo vs. State of Maharashtra (2013) 5 SCC 615 it was held that :-
"18............ As said earlier, in the case of a complaint regarding the commission of a cognizable offence, the power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190 (1) (a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of section 156 (3)."
15. In a recent case in Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177 Hon'ble Apex Court has held that :-
"32............... On the other hand, it was observed that section 202 would be invocable at a stage when some evidence has been collected by the Magistrate in the proceedings under Chapter XV, but is deemed to be insufficient to take a decision as to the next step and in such an event, the Magistrate would be empowered under section 202 to direct, within the limits circumscribed by that provision, an investigation for the purpose of deciding whether or not, there is sufficient ground for proceeding. It was thus exposited that the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing the proceedings already instituted upon a complaint before him. It was thus concluded on an appraisal of the curial postulation above referred to, that the Magistrate of his own, cannot order further investigation after the accused had entered appearance pursuant to a process issued to him subsequent to the taking of the cognizance by him."
16. In the facts of the present case the learned Magistrate had recorded the statement of complainant under section 200 and 202 CrPC. Thereafter, he sent the matter for re-investigation. It means that once he has rejected the final report and registered it as a complaint case he has taken the cognizance in the matter. The object of an investigation under section 202 CrPC is not to initiate a fresh case on police report but to assist the Magistrate in completing the proceedings already instituted upon a complaint before him. Once cognizance has been taken then a fresh cognizance on the basis of police report submitted under section 173(2) CrPC cannot be taken. Once cognizance was taken on a complaint then even if the Magistrate has sent the complaint for enquiry under section 202 CrPC then he cannot take cognizance on the police report submitted after investigation under section 173(2) CrPC.
17. Accordingly, the cognizance taken by the Magistrate on police report is bad in law and is misuse of process of law. Petition is allowed. Accordingly, proceedings of criminal case no.1151 of 2005, State vs. Ramdev Singh are liable to be quashed and are quashed. Learned Magistrate should proceed to decide the case on the basis of cognizance taken by him on the final report.
Date :- 31.7.2017 mks (Anil Kumar Srivastava- II, J.)