Patna High Court
S.N. Dubey And Anr. vs Devi Kant Jha on 11 August, 1969
Equivalent citations: AIR1971PAT15, 1971CRILJ77, AIR 1971 PATNA 15, 1970 PATLJR 103
ORDER B.P. Sinha, J.
1. This is a reference under Section 438 of the Code of Criminal Procedure (hereinafter to be called 'the Code') made by the District Magistrate, Patna recommending to set aside the order dated 28-10-1967, passed by Mr. R. N. Mahraj, in a case instituted on a complaint filed by Devi Kant Jha.
2. There is a Math at Gokhulpur within the jurisdiction of Barh Subdivision of the district of Patna. Swami Shri Harikrishnanand was its Mahantha. On his death there arose a dispute for the gaddi resulting in some criminal cases. In that very connection Devikant Jha filed a petition of complaint before the District Magistrate, Patna alleging that Shri Bachan Singh, Shri S. N. Dubey, Inspector of Police, Bakhtiarpur, Shri D. N. Chaudhary, Officer-in-Charge, Harnout Police Station, Shri D. N. Tripathi, Magistrate, First Class, Patna and others including Havildar and constables named therein, had gone to the Gokulpur Math and committed rioting and murder by opening fire on servants of the Matha. The District Magistrate sent the complaint petition to the Subdivisional Magistrate, Barh for disposal. The Subdivisional Magistrate examined the complainant on solemn affirmation and referred the matter for inquiry hy Shri A. K. Singh, Magistrate, First Class, Barh. It appears that before the Subdivisional Magistrate an objection was raised by the accused persons that the institution of the case against the police officers without sanction of the State Government was barred under Section 132 of the Code and that the prosecution of the Magistrate was bad for want of sanction under Section 197 of the Code. This objection was overruled by the Subdivisional Magistrate. As against this order the accused persons went in revision to the Sessions Judge. The revision was rejected at that stage. It further appears that before the Inquiring Magistrate also an objection regarding want of sanction under Sections 132 and 197 of the Code was raised. The learned Magistrate rejected' it and he made a report on 31-1-1967, to the effect that the Police had not acted with restraint in firing. On receipt of this report Shri R. N. Maharaj passed the following order on 28-10-1967:
"Thus, in view of the facts and circumstances noted above I feel it justified to take cognizance against the accused persons. Hence cognizance is taken against all accused persons Under Sections 120B/302/307/325/323/ 147/148 and 149, I. P. C. and the case is transferred to the court of Sri B. N. P. Sri-vastava, Munsif Magistrate 1st Class, for favour of disposal. Put up on 31-10-67 before the court concerned.' It is to set aside this order that this reference has been made by the District Magistrate.
3. In support of the reference Mr. Tarakant Jha appearing for the Police officers and the Magistrate and Mr. J. N. Verma appearing for other accused persons have argued the case. They have submitted that the order is fit to be set aside on the following grounds:
(1) Shri R. N. Mahraj had no jurisdiction to pass the impugned order.
(2) The prosecution of the Police Officers and the Magistrate is bad for want of sanction under Sections 132 and 197 of the Code.
4. In connection with the first point it has been submitted that in the instant case cognizance of the offence was taken by the Subdivisional Magistrate and as such the impugned order is obviously an order under section 192 or 204 of the Code and such order could have been passed by the Sub-divisional Magistrate or his successor in office (permanent or temporary) and not by Shri Mahraj who was not his successor in office. There is force in this contention.
5. 'Cognizance' has not been defined in the Criminal Procedure Code. It is well settled that when a Magistrate applies his mind to the complaint for the purpose of initiating proceeding he is said to nave taken cognizance of the offence. In the instant case on receipt of the complaint forwarded to him by the District Magistrate, the Subdivisional Magistrate examined the complainant and then passed an order under Sec. 202 directing inquiry by Shri A. K. Singh. This obviously means that the Sub-divisional Magistrate took cognizance of the offence. Once cognizance of an offence is taken there is no question of taking cognizance afresh. In this connection reference can be made to a decision of Supreme Court in Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541 and also to a Full Bench decision of this Court in Krishnadeo v. Mostt. Budhni, AIR 1965 Pat 1 (FB), Therefore though Shri Mahraj has written in his order 'Hence cognizance is taken" it has no significance inasmuch as cognizance was already taken earlier by the Subdivisional Magistrate. In the impugned order there is no order directing issue of process. Such order has been passed by the transferee court. It simply transfers the case to some other Magistrate for disposal. Therefore it is to be treated as an order passed under Section 192 of the Code. Section 192 of the Code is:--
"(1) Any Chief Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him.
(2) Any District Magistrate may empower any Magistrate of the First Class who has taken cognizance of any case, to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly."
According to Clause (1) the Subdivisional Magistrate who had taken cognizance could transfer the case to any Magistrate for disposal. Any other Magistrate of the first class who has been empowered to do so also under Clause (2) can transfer to another Magistrate a case of which he has taken cognizance. He cannot transfer a case of which he himself has not taken cognizance unless he acts as a successor in office of the Magistrate who had taken cognizance. It is not disputed that Shri R. N. Mahraj was delegated with a power to take cognizance and to transfer a case of which he took cognizance. By such delegation he had his own power concurrent with the power of the Subdivisional Magistrate to take cognizance of an offence on a complaint and transfer the case under Section 192 of the Code. But his own power of transferring a case was restricted to the cases of which he himself had taken cognizance. In this case since cognizance was taken by the Subdivisional Magistrate, only he or his successor in office by virtue of Section 559 of the Code could pass order under Section 192 of the Code. More or less similar expressions in Sec. 204 of the Code came for consideration in the abovementioned Full Bench decision of this Court. That was a case in which a complaint petition was filed before the Sub-divisional Magistrate. The Magistrate examined the complainant on oath and ordered an inquiry to be made by the Mukhiya. Mukhiya submitted his report which was placed before Mr. R. R. Prasad, the Second Officer. Mr. R. R. Prasad dismissed the complaint under Section 203 of the Code. A revision petition was filed before the Sessions Judge, The Judge found that Mr. R. R. Prasad had no jurisdiction to pass an order under Section 203 of the Code in respect of the complaint because it was filed before the permanent Subdivisional Magistrate, who had taken cognizance of it. He, therefore, set aside the order of dismissal and directed further inquiry. Against that order the accused came to this Court. That was referred to the Full Bench by a Division Bench. In the order of reference the points for decision which were formulated are as follows:--
"1. Whether, in the facts and circumstances of the case, Second Officer Sri R. R. Prasad could pass an order under Sec. 203 of the Code of Criminal Procedure as he did on 9-11-1960, during the absence of the Sub-divisional Magistrate?
2. Whether an order under Section 203 or 204 can be passed by only that Magistrate who has taken cognizance of the offence on a complaint under Section 200?"
While answering these two questions Mr. Justice Sahai, who delivered the Court's Judgment held as follows:--
"So far as the second question is concerned, the answer must be that it is the Magistrate taking cognizance of an offence on a complaint, or receiving the complaint when it is filed, who can pass an order under Section 203 or 204 in respect of that case; but his successor-in-office, either temporary or permanent, can also pass an order under those sections. A Magistrate to whom the case is transferred may also pass an order under Section 203 of the Code."
Therefore, the point was whether the Magistrate was successor-in-office of the Magistrate who had taken cognizance in the case. In that case before the Full Bench there was an order of the District Magistrate distributing the business as required under Section 17 (1) of the Code. It is for that reason that it was found that the order passed by Sri R. R. Prasad was all right inasmuch as, he was successor-in-office of the Sub-divisional Magistrate during his absence. In that connection it was further observed:
"Had there been no order under Section 17 (1) of the Code, the position might have been different."
So Sri R. N. Mahraj had no Jurisdiction to pass the impugned order, whether it be treated as an order under Section 192 or under Section 204, in exercise of his own delegated power.
6. As a matter of fact Shri R. N. Mahraj signed the impugned order as S. D. M. (Sub-divisional Magistral). Therefore it is to be seen, if he was successor-in-office (permanent or temporary) of the Subdivisional Magistrate. In the affidavit sworn on behalf of the accused it is stated that Shri Mahraj was not successor in office of the Sub-divisional Magistrate on the relevant date. It is not controverted in the counter affidavit. As suggested by the Counsel of the parties during the course of argument a report was called for from the District Magistrate and the Sub-divisional Magistrate in this connection. The report of the District Magistrate is that Shri R. N. Mahraj was neither a permanent nor a temporary successor-in-office of the Sub-divisional Magistrate. It is further reported that there is no such order under Section 17 of the Code in this connection. The report of the Subdivisional Magistrate shows that there was some local arrangement for doing "Sawalkhani" on different days of the week by the officers empowered to take cognizance and according to that arrangement Shri Mahraj did Sawalkhani on 28-10-1967. That however did not make him successor-in-office of the Subdivisional Magistrate. All officers empowered to take cognizance of an offence have got concurrent powers. It may be that even though the Subdivisional Officer be in the headquarters, on account of his being busy with other works, for convenience sake complaints are placed before any Magistrate empowered to take cognizance. There the Magistrate taking cognizance does so in exercise of his own powers and not as successor-in-office of the Subdivisional Magistrate. Therefore by any such local arrangement as referred to in the report of the Subdivisional Magistrate, not under the authority of any order under Section 17 of the Code, Shri R. N. Mahraj could not be acting as successor in office of the Subdivisions Magistrate on 28-10-1067. Therefore Shri R. N. Mahraj had no jurisdiction to pass the impugned order. That order is fit to be set aside.
7. In view of the fact that the reference is being accepted and the impugned order is being set aside, it is not necessary to express any opinion on the second ground on which the order has been attacked, namely, that the prosecution of the police officers and the Magistrate is bad for want of sanction tinder Sections 132 and 197 of the Code. The Magistrate who may have to form an opinion as to whether there is sufficient ground for proceeding under Section 204 of the Code will consider this point and take a decision on the materials which may be made available to him.
8. The reference is, therefore, accepted. The order dated 28-10-1967 passed by Shri R. N. Mahraj is set aside.