Rajasthan High Court - Jaipur
Hanuman Singh vs State Of Rajasthan And Ors. on 14 August, 1996
Equivalent citations: 1997CRILJ1331, 1997(1)WLC404, 1996(2)WLN647
ORDER Amaresh Ku. Singh, J.
1. Heard the learned counsel for the petitioner and the public prosecutor for the State.
2. This petition under Section 482 of the Criminal Procedure Code has been filed by the petitioner against the order dated 13th March, 1991 passed by the learned Munsif and Judicial Magistrate First Class, Rajgarh, District Churu in Criminal Case No. 133/91 State v. Ishwar. By the aforesaid order the learned Munsif and Judicial Magistrate, on perusal of the record submitted by the police under Section 173 of the Criminal Procedure Code and after going through the documents annexed thereto and hearing the arguments of the parties came to the conclusion that the case of the prosecution did not come within the purview of Sections 395 and 397 of the Indian Penal Code but prima facie comes under Sections 147, 148, 149, 341, 323, 325 and 379 was made out. He, therefore, registered the case under Sections 147, 148, 149, 341, 323, 325 and 397 of the Indian Penal Code. Relevant portion of his order may reads as under:
^^ekeyk /kkjk 395] 397 dh ifjf/kesa uk vkdj /kkjk 379 Hkk-na-la- dk izrhr gksrk gS vU; vkjksiks esa /kkjk 147] 148] 149] 341] 323] 325 Hkk-na-la- esa Hkh izFkenz"V;k izdj.k iathc) djus ds vk/kkj i=koyh ij miyC/k gS- mijksDr foospu ds vuqlkj vfHk;qDrx.k lHkh ds fo:) izdj.k vkjksi i= ds voyksdu ls /kkjk 147] 148] 149] 341] 323] 325 Hkk-na-la- esa ntZ djus ds izFkenz"V;k vk/kkj izrhr gq, gSa vr% izdj.k bu /kkjkvksa esa iathc) fd;k tkos-----
i=koyh okLrs cgl vkjksi fnukad 20&12&91 dks is'k gks A**
3. The aforesaid order was passed on submission of the report under Section 173 in which the police alleged the commission of offences punishable under Sections 147, 148, 149, 341, 323, 325, 395 and 397 of the Indian Penal Code.
4. The learned counsel for the petitioner has submitted that since police officer alleged the commission of offence punishable under Sections 395 and 397 of the Indian Penal Code in addition to other offences of which cognizance has been taken by the learned Munsif and Judicial Magistrate, it was not open to the learned Munsif and Judicial Magistrate to refuse to register the offences under Sections 395 and 397 of the Indian Penal Code because offences under Sections 395 and 397 of the Indian Penal Code are triable exclusively by the Court of Sessions and in view of the provisions of Section 209 of the Criminal Procedure Code the power to discharge an accused of the offences triable exclusively by the Court of Sessions vests in the Sessions Court and does not vest in the Court of Magistrate, therefore the impugned order dated 13th March, 1991 is without jurisdiction, and deserves to be set aside under Section 482 of the Criminal Procedure Code. The learned counsel for the petitioner has cited the ruling of the Apex Court given in Sanjay Gandhi v. Union of India, AIR 1978 SC 514.
5. The learned Public Prosecutor has supported the order of the learned Munsif and Judicial Magistrate.
6. In view of above reasons before proceedings to discuss the merits of the argument advanced by the learned counsel for the petitioner it is necessary to scrutinize whether the two assumptions made by the learned counsel for the petitioner (A) that the impugned order was passed at a stage of framing charge against the accused of committing the case to the Court of Sessions and (B) that the impugned order is an order discharging the accused persons of the offences punishable under Sections 395 and 397 of the Indian Penal Code are correct. I have gone through the whole of the order passed by the learned Judicial Magistrate. Order-sheet dated 12th March, 1991 shows that on that day the learned Judicial Magistrate heard arguments about taking cognizance of the offences because the order-sheet reads as below :
^^12&3&91 ,-ih-ih- mi- vfHk;qDrx.k mi- cgl izlaX;ku lquh xbZ A okLrs vkns'k 13&3&91 dks is'k gks A** and the order-sheet dated 13th March, 1991 which contains the impugned order shows that on that day additional arguments about cognizance were heard and case was ordered to be registered under Sections 147, 148, 149, 341, 323, 325 and 379 of the Indian. Penal Code and after taking the accused persons in custody arguments on bail applications were heard and the accused persons were directed to be released on bail and case was ordered to be listed on 20th December, 1991 for "arguments on charge". These two order-sheets clearly show that on 13th March, 1991 when the impugned order was passed there was neither the stage of framing charge against the accused nor there was any stage for passing order of committal to the Court of Sessions. The stage at which the order was passed by the learned Judicial Magistrate, was the stage of taking cognizance of the offences punishable under Section 190 of the Indian Penal Code which is the stage of institution of the case and was not the stage of committing the accused to the Court of Sessions under Section 209 of the Criminal Procedure Code nor was that stage of framing the charge or of discharging the accused, of any offence. It may be pointed out that under the Code of Criminal Procedure the expression "institution of the case" has not been defined anywhere. But according to the ruling of the Supreme Court in Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541 : (1964 (2) Cri LJ 468), a case is said to be instituted when the Magistrate take cognizance of an offence. Their Lordships in the above case observed as below:
"The Code does not contain any definition of the words "institution of a case". It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190(1) of the Code of Criminal Procedure contains the provisions for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts that is, facts constituting the offence made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge of suspicion that such offence has been committed. Section 193 provides for cognizance of offences being taken by Courts of Sessions on commitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for cognizance being taken by High Court of offences upon a commitment made to it in the manner provided in the Code.
An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's Court on a police report."
The contention that by passing the impugned order dated 13th March, 1991 the learned Judicial Magistrate has discharged the accused persons of offences punishable under Sections 395 and 397 of the Indian Penal Code appears to be wholly unfounded. Whenever a Magistrate does not take cognizance of an offence, no matter what is the state at which the case is pending and drops the proceedings on the ground that cognizance cannot be taken by him of the offence, the order does not amount to an order of discharge of an order of acquittal. In Mohd. Safi v. State of West Bengal, AIR 1966 SC 69: (1966 Cri LJ 75), it was urged before their Lordships of the High Court that the order passed by Shri N. C. Ganguly, Judge, Birbhum Special Court amounted to an order of acquittal and, therefore, the appellant could not be tried again on the same facts by Shri T. Bhattacharjee, Judge, Birbhum Special Court for the offence under Section 494 of the Indian Penal Code. The argument was founded on the premises that the order passed by Shri N. C. Ganguly terminating the proceedings against the appellants on the ground that cognizance of the offence could not be taken by him amounted to acquittal within the meaning of Section 403(1) of the Criminal Procedure Code (1898). In that case the appellant was alleged to have committed Criminal Breach of Trust, the offence was investigated into and a charge sheet against the Indian Penal Code by the Officer-in-charge, Government Railway Police, Asansol. The charge sheet was filed in the Court of Judge, Birbhum, Special Court and the case was distributed to the Birbhum, 1958 Cri LJ 1386 : AIR 1958 Cal 612, was also brought to the notice of the learned Special Judge. In the later ruling it was held that where a Magistrate could not legally take cognizance of an offence on the basis of a charge sheet the entire proceedings held that the proceedings pending before him were the appellant because the decisions of the High Court were not available at the time of framing of the charge. He, therefore, acquitted the appellant because in his view the proceedings pending before him were without jurisdiction. Subsequent to the order passed by Shri Ganguly, a formal complaint was preferred by the Public Prosecutor before Shri Bhattacharjee who had succeeded Shri Ganguly. Shri Bhattacharjee took cognizance of the offence under the first proceeding against the accused persons including the appellant. After trial the appellant was convicted under Section 409 of the Indian Penal Code in appeal he took plea that his conviction and sentence after trial held by Shri Bhattacharjee was barred by Sub-section (1) of Section 403 of the Criminal Procedure Code 1898 as he was already acquitted of the offence by the order passed by Shri N. C. Ganguly. Their Lordships of the Supreme Court held that in order the plea under Section 403(1) 1898 should be taken it must be shown that the earlier judgment was by a Court of Competent jurisdiction and if the earlier judgment or order was not by a Court of Competent jurisdiction, it could not bar the subsequent trial for offence. Regarding the view taken by Shri Ganguly that the proceedings pending before him were without jurisdiction the Supreme Court held that the view taken by Shri Ganguly was erroneous because he could properly take cognizance of an offence and, therefore, the proceedings before him were not vitiated by reason or lack of jurisdiction. But their Lordships held that since Shri Ganguly himself came to the conclusion that he could not have taken cognizance of an offence that the proceedings before him were without jurisdiction, the order passed by him notwithstanding that it used the expression acquittal could not amount to acquittal of the appellant under Section 403(1) of the Criminal Procedure Code and the second trial by Shri Bhattacharjee was not barred by Section 403(1) of the Criminal Procedure Code of 1898. What was the nature of order passed by Shri Ganguly who took the view that proceedings pending before him were without jurisdiction as he could not take the cognizance was also considered by the Supreme Court and their Lordships held that the order did not amount to an order of acquittal as contemplated by Section 403(1). And since the proceedings before the Special Judge ended with that order it would be enough to look at it merely as an order putting a stop to the proceedings. How to determine whether the Court which conducted the earlier trial was or was hot a Court of competent jurisdiction can be determined with reference to the fact whether that Court could legally take cognizance of the offence and if so whether it had taken cognizance of the offence in accordance with law. Their Lordships observed:
"The competency of a Court, however, depends not merely on the circumstance that under some law it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls. In addition to this taking cognizance of the offence is also material in this regard. Under the Code of Criminal Procedure a Court can take cognizance of an offence only when conditions requisite for initiation of proceedings before it as set out in Part B of Chapter XV are fulfilled the Court does not obtain jurisdiction to try the offence."
The observations reproduced above clearly show that jurisdiction of a Court to conduct a trial against any accused depends on taking cognizance under Section 190 of the Criminal Procedure Code, as a Court of Original jurisdiction. If the Court has no jurisdiction at all to take cognizance of the offence, such Court cannot take cognizance and in the absence of cognizance it cannot be said to have the jurisdiction to try the case and pass a judicial order in the matter because if jurisdiction is wanting the entire proceeding is nullity. If the court has jurisdiction to take cognizance of an offence then the conditions for taking cognizance of the offence laid down in Chapter XV of the Criminal Procedure Code of 1898 must be fulfilled and if those conditions are not fulfilled the Court in spite of the fact that it has power to take cognizance, cannot take cognizance of the offence and if cognizance is not taken further jurisdiction to pass an order would hot be available to it. If the Court has power to take cognizance and the conditions for taking cognizance are also fulfilled then too, if the Court does not take cognizance of the offence or erroneously holds that it has no jurisdiction to take cognizance then it will have no jurisdiction to pass an order of acquittal because it has not taken cognizance of the offence, In Mohd. Safi's case at page 72 (of AIR) their Lordships observed :
"It is true that Mr. Ganguly could properly take cognizance of the offence and, therefore, the proceedings before him were in fact not vitiated by reason for lack of jurisdiction. But we cannot close our eyes to the fact that Mr. Ganguly was himself of the opinion and indeed he had no option in the matter because he was bound by the decisions of the High Court that he could not take cognizance of the offence and consequently was incompetent to try the appellant. Where a Court comes to such a conclusion, albeit erroneously, it is difficult to appreciate how that Court can absolve the persons arraigned before it completely of the offence alleged against him. Where a person has done something which is made punishable by law he is liable to face a trial and this liability cannot come to an end merely because the court before which he was placed for trial forms an opinion that it has no jurisdiction to take cognizance of the offence alleged against him. Where, therefore, a Court says though erroneously, that it was not competent to take cognizance of the offence it has no power to acquit that person of the offence. An order of acquittal made by it is in fact a nullity. In this connection we might profitably refer to the decision in Yusofalli Mulla Noorbhoy v. The King, 76 Ind App 158 : (AIR 1949 PC 264): (1949 (50) Cri LJ 889). That was a case where there was no valid sanction as required by cl. 14 of the Hoarding and Profiteering Prevention Ordinance, 1943 for the prosecution of the appellant therein on separate charges of hoarding and profiteering. The sanction for the prosecution had been granted by the Controller General of Civil Supplies who was authorised to give such sanction by virtue of a notification of the Government of India duly published. Charges were framed by the Magistrate and thereafter further evidence was called for by the prosecution and some of the witnesses were recalled for cross-examination. On the date of hearing, however, counsel for prosecution made a statement to the following effect.
"In view of the High Court decision in Revisional Application No. 191 of 1945 as this Court is not competent to try this offence he does not wish to tender the witnesses already lead any further evidence."
Thereupon the Magistrate recorded an order in the following terms:
"Mr. Mullick's evidence is deleted. Accused acquitted for reasons to be recorded separately." After referring to the statement of counsel for the prosecution and the order made on it the Magistrate continued:
"On a perusal of the said decision, however, I find that the filing of this charge sheet by the prosecution itself is invalid in law, because the sanction is signed by the Controller General under a Notification of the Government of India, and the said Notification does not state that the various officers therein mentioned are not below the rank of a District Magistrate. Thus it is the incompetence of the prosecution to proceed against the accused without sanction as provided for in law. As, however, the invalidity of the sanction invalidates the prosecution in Court, the accused was acquitted."
The Government filed an appeal against the order of acquittal. The High Court allowed it and set aside the order of the Magistrate acquitting the appellant and directed that the case should be tried by another Magistrate having jurisdiction to try it and dealt with according to law. Against the decision of the High Court the appellant took an appeal to the Privy Council. The Privy Council accepted the view of the Federal Court in Basdeo Agarwalla v. King Emperor 1945 FCR 93 : AIR 1945 FC 16 : (1945 (46) Cri LJ 510), that the prosecution launched without valid sanction is invalid and held that under the common law a plea of 'antrefois acquit' or convict can only be tried where the first trial was before a Court competent to pass a valid order of acquittal or conviction. Unless the earlier trial was a conviction, the accused was never in jeopardy. The principle upon which the decision of the Privy Council is based must apply equally to a case like the present in which the Court which made the order of acquittal was itself of the opinion that it had no jurisdiction to proceed with the case and, therefore, the accused was not in jeopardy if a Court has not taken cognizance and terminated the proceedings, what would be the nature of order is indicated by the following words of their Lordships of the Supreme Court:
"A fortiori it would also follow that the ultimate order made by it by whatever name it is characterised cannot in law operate as an acquittal. In the Privy Council case it was interpreted by Sir John Beanmont who delivered the opinion of the Board to be an order of discharge. It is unnecessary for us to say whether such an order amounts to an order of discharge in the absence of any express provision governing the matter in the Code or it does not amount to an order of discharge. It is sufficient to say that it does not amount to an order of acquittal as contemplated by Section 403(1) and since the proceedings before the Special Judge ended with that order it would be enough to look upon it merely as an order putting a stop to the proceeding."
The last line "since the proceedings before the Special Judge ended with that order it would be enough to look upon it merely to put a stop to the proceedings" clearly shows that in cases where a Magistrate has not taken cognizance for any reason, the order of the Magistrate can neither amount to acquittal nor it can amount to discharge and it must be treated as an order stopping the proceedings in respect of the offence of which cognizance is not taken.
7. The importance of taking cognizance under Section 190 of the Criminal Procedure Code is fully indicated by the fact that a case can be said to be instituted in a Criminal Court only when the cognizance of the offence has been taken by the Court. In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541 at p 1543 : (1964 (2) Cri LJ 468) the Supreme Court observed:
"The Code does not contain any definition of the words "institution of a case." It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence, the second is on a report in writing of such facts - that is, facts constituting the offence - made by any police officer, the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge on suspicion that such offence has been committed. Section 193 provides for cognizance of offences being taken by Courts of Sessions on commitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for cognizance being taken by High Court of offences upon a commitment made to it in the manner provided in the Code.
An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's Court on a police report."
8. From these rulings of the Supreme Court it is evident that unless cognizance of offence under Section 190 of the Criminal Procedure Code is taken no case in respect of that offence can be said to have been instituted in the Court and if cognizance has not been taken for any reason the court does not acquire any jurisdiction to pass any judicial order in respect of the offence of which cognizance has not been taken and that an order by which a Magistrate declines to take cognizance under Section 190 of the Criminal Procedure Code neither amounts to an order of acquittal nor it amounts to an order of discharge it is only an order stopping the proceedings in respect of the offence, the cognizance of which is declined.
9. In view of the above reasons I have no hesitation in coming to the conclusion that the impugned order dated 13th March, 1991 passed by the learned Munsif and Judicial Magistrate, Rajgarh, does not amount to an order of discharge within the meaning of Section 227 of the Criminal Procedure Code and, therefore, the contention that by passing the impugned order the learned Judicial Magistrate has usurped the functions of the Court of Sessions and indulged in abusing the process of Court by exceeding his jurisdiction is liable to be rejected as baseless and for the same reasons the authority cited by the learned counsel for the petitioner does not apply to the present case. The learned counsel for the petitioner has, however, submitted that once the police officer has submitted the report alleging the commission of offences exclusively triable by the Court of Sessions the Magistrate has no discretion but to commit the case to the Court of Session under Section 209 of the Criminal Procedure Code. This argument proceeds on the presumption that under Section 190 of the Criminal Procedure Code the Magistrate before whom the police report under Section 173 of the Criminal Procedure Code is submitted by the , police is bound to take cognizance of an offence under the Criminal Procedure Code without exercising any judicial discretion in the matter. The argument further presupposes that the functions of the Magistrate under Section 204 of the Criminal Procedure Code in the matter of issue of process against the persons who are alleged to have committed any offence is a mechanical function and he has no discretion to refuse to issue process against the alleged accused even if he comes to the conclusion that on the basis of the material placed before him there is no sufficient ground to proceed against the alleged accused Both these presumptions which under lie the argument advanced by the learned counsel for the petitioner appear to be unfounded in view of the provisions of Sections 190 and 204 of the Criminal Procedure Code as interpreted by the Supreme Court, this Court and several other Courts. It may be pointed out that Sections 190 and 204 of the Criminal Procedure Code of 1898 were interpreted by the Courts as conferring judicial discretion on the Magistrate to find out whether he should or should not take cognizance of an offence and to further find out whether there are or there are not sufficient grounds to proceed against any person and to refuse to take cognizance under Section 190 of the Criminal Procedure Code if on the basis of the material placed before him there be no justification for taking cognizance and to refuse to issue process under Section 204 of the Criminal Procedure Code if there be no sufficient ground to proceed against the alleged accused. Sections 190 and 204 of the Criminal Procedure Code of 1973 have been lifted from the Criminal Procedure Code of 1898 in toto without any substantial change and without reversing the scheme created by the Criminal Procedure Code of 1973 for creating a machinery consisting of citizens, executive authorities including police and Courts, exercising their powers in a coordinated manner so that the exercised of their powers does not cause any over lapping and their functions supplement each other and the machinery successfully serves the object of protecting the lives and liberties of the people including the suspects and empowers the police and the Magistrates to take such action right from the movement the commission of offence is noticed to the point when final verdict is delivered, as neither causes unnecessary harassment to the innocent citizens nor gives opportunity to the guilty persons to escape and serves the cause of justice by upholding the constitutional provisions including the fundamental rights and the rights of society to enforce the laws for the good of the society. It may be pointed out here that some of the important fundamental rights relevant to administration of Criminal justice were recognised as cherished values to be served by criminal justice system. The right to life and personal liberty guaranteed by Article 21 of the Constitution was recognized as an important right of an individual much before the Indian Constitution came into existence. The right to be produced before the nearest Magistrate within 24 hours excluding the time necessary for journey from the place of arrest to the Court of Magistrate, and the right to be defended by a legal practitioner of one's choice before a Magistrate were conferred on the persons arrested without a warrant under the Criminal Procedure Code of 1898. The Right to Equality before law and equal protection of laws, the right to insist on absence of arbitrariness the necessity of truth in arriving at conclusion which as of necessity must be founded of objective assessment have been recognized as integral part of the administration of justice. The Criminal Procedure Code of 1898 was by itself a product of the experience which humanity acquired in relation to the enforcement of Criminal laws. The scheme laid down by Criminal Procedure Code of 1898 was important and it continues to be important because a major portion of that Code has been made a part of the Code of 1973. Sections 190 and 204 of the Criminal Procedure Code of 1898 are very important from the point of view of protecting the lives and liberties of the citizens and enforcing the law relating to creation and punishment of crimes.
10. Chapter XIV of the Criminal Procedure Code of 1973 is the first chapter which contains provisions relating to the powers and functions of the Courts. It contains "conditions requisition for initiating of proceedings." Chapter XV leads with complaints to the Magistrate. Chapter XVI contains provisions relating to commencement or proceedings before Magistrate. Chapter XVII contains provisions relating to framing of charge against the accused persons. Chapter XVIII contains provisions relating to trial before a Court of Session. Chapter XIX contains provisions relating to warrant to cases. Chapter XX contains provision relating to trial of Summons cases by Magistrates and Chapter XXI contains summary trials. Subsequent Chapters deal with other components of the judicial functioning. The scheme created by the Criminal Procedure Code of 1973 for dealing with the powers and functions of the court is obviously systematic using the dimension of time for creating the order in which the provisions have been enacted. Chapter XIV contains provisions which are applicable at that point of time when the Magistrate for the first time take cognizance of an offence. Chapter XV contains Sections 200 to 203 these Sections contains provisions which apply at a point, subsequently to the point of time when cognizance has been taken and in this way along the dimension of time the provisions of law dealing with the powers of the Code have been given in the Code. A certain order, no matter it is along the dimension of time or along some dimension of space is necessary for a proper understanding, proper perspective, proper interpretation and proper action. If this order be missing, various ideas, various concepts, various actions, various functions either start overlapping one another. It is true that more than one event may take place simultaneously and they may be described only in a certain order demanding description of them one by one but it is equally true that many events take place not simultaneously but at different points of time in a certain definite order which if changed chaos is created.
11. Viewed in this light the cognizance under Section 190 of the Criminal Procedure Code occurs at a point of time which is prior to all other points on which other judicial functions are performed. Points of time at which functions under Section 190 of the Criminal Procedure Code, inquiry under Sections 200 and 202 of the Criminal Procedure Code, issue of process under Section 204 of the Criminal Procedure Code, commitment of the case to the Court of Sessions if offence be exclusively triable by it and the passing of an order relating to framing of charge or discharge of an accused in respect of the offence of which cognizance had been taken and for which he was proceeded against under Section 204 of the Criminal Procedure Code are at different points of time, they do not over lap one another. It would, therefore, not be proper to hold that the functions under Sections 190, 200 to 202, 204, 209, 227/228 of the Criminal Procedure Code are performed simultaneously.
12. In light of the above reasons it is clear that cognizance under Section 190 of the Criminal Procedure Code is taken at the time of point when the case is instituted in the Court. So long cognizance is not taken a case cannot be said to be instituted in the Court of Magistrate in view of the ruling of the Supreme Court Jamuna Singh v. Bhadai Shah, AIR 1964 p 1541: (1964(2) Cri LJ 468). Cognizance under Section 190 of the Criminal Procedure Code is taken of the offence and not of the offenders and it is also well established that when a Magistrate take cognizance under Section 190 of the Criminal Procedure Code, he takes cognizance of all offences constituted by the facts brought to his notice unless taking of cognizance of one or more offences is prohibited by law. Therefore when a Magistrate takes cognizance under Section 190 of the Criminal Procedure Code it is not necessary that the offender should be known to him at that time and as pointed out by Supreme Court in Raghubansh Dubey v. State of Bihar, AIR 1967 SC 1167 : (1967 Cri LJ 1081), after taking cognizance of the offence it is the duty of the Magistrate to find out who the offender are and if he comes to the conclusion that some persons other than those sentenced by the Police are also involved he should issue process under Section 204 of the Criminal Procedure Code to enforce their attendance the crucial question is whether a Magistrate is bound to take cognizance of the offences alleged by the complainant or by the Police before him or he has a judicial discretion to take cognizance in appropriate cases and refuse to take cognizance if there be reasons for not doing so. The contention that if the Police in its report under Section 173 of the Criminal Procedure Code alleges the commission of offence then the Magistrate is bound to take cognizance of such offence ignores the fact that under Section 190 of the Criminal Procedure Code Magistrate is not bound to take cognizance of the offences alleged before him. He has a discretion though a judicial one to apply his mind to the material placed before him and thereafter decide whether he should or should not take congizance. In Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : (1968 Cri.L.J. 97) their Lordships observed as below:
"Now, the question as to what exactly is to be done by a Magistrate, on receiving a report, under Section 173, will have to be considered. That report may be in respect of a case, coming under Section 170, or one coming under Section 169. We have already referred to Section 190, which is the first section in the group of sections headed "Conditions requisite for Initiation of Proceedings". Sub-section (1), of this section will cover a report sent, under Section 173. The use of the words "may take cognizance of any offence", in sub-section (I) of Section 190, in our opinion, imports the exercise of a "judicial discretion", and the Magistrate, who receives the report under Section 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this, it follows, that it is not as it, that the Magistrate is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts, disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under Section 190(1)(b) of the Code. This will be the position, when the report, under Section 173, is a charge-sheet. In the same case at page 123 (of AIR) the Supreme Court observed:
"It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us."
It is clear from these observations of the Supreme Court made in the case of Abhinandan Jha v. Dinesh Mishra that the function of the Magistrate under Section 190 of the Criminal Procedure Code in the matter of taking cognizance of an offence is a judicial function and not a mechanical function and he has jurisdiction to form an opinion quite independently of what the Police Officer has stated in the report submitted before him under Section 173 of the Criminal Procedure Code and he may in appropriate cases decline to take cognizance of the offences alleged by the police in his report under Section 173 of the Criminal Procedure Code and he is not bound to take cognizance of all offences which may be alleged by the Police in his report under Section 173 of the Criminal Procedure Code.
13. There are good reasons for holding that under Section 190 of the Criminal Procedure Code the Magistrate has a judicial discretion to take cognizance or to refuse to take cognizance of an offence. The first and foremost reason is that as a general proposition whenever any power is conferred upon a public functionary and such power has to be exercised only in few cases and the exercise of such power is subject to the fulfilment of the conditions prescribed by the statute, the power cannot be said to be unlimited in its scope nor can it be exercised in a mechanical manner. A mechanical function is characterised by repeated performance of a certain function of which machine is capable of performing subject to the condition that the machine is intact, it is operative and power necessary for its operation is available to it. The machine cannot discriminate between persons, places of circumstances in which it should perform the function and those in which it must not perform the function therefore, in relation to places, persons and circumstances a machine acts blindly and if it is allowed to perform the mechanical function without any continuous and indiscriminate repeated action which it is capable of indulging in. Therefore a mechanical function, if allowed to be performed without controls will soon exhaust the supplies and impoverish the owner. Another disadvantage of mechanical action is that since the machine cannot' discriminate between persons, places and circumstances in which it must function and those in which must not function, it is most likely to perform its functions in places and circumstances in which it must not. A mechanical function is, therefore, productive of great damages. If such mechanical function is allowed to be performed in relation to persons, places and circumstances where it must not be performed. Uncontrolled, machines produce great dangers to the society. Because of the above mentioned two major short-comings of mechanical functions, machines need to be regulated in some effective manner so that they are made to function only when it is necessary and they are prevented from functioning when their function is likely to cause damage or danger to anyone. It is in this sense that the machines can be good servants provided they have good masters and machines without masters are devastating phenomenon. A mechanical function is characterised by above mentioned two defects and, therefore, when any power is conferred upon any person or body of persons so as to act to the disadvantage of anyone,' such power cannot be allowed to be performed in a mechanical manner. Firstly, because it is likely to exhaust the resources of the society and, secondly, because it is likely to cause damage to the society when such functions are neither necessary nor permissible. Since every individual and every society has limited means, even if the object be universally and eternally good, unlimited expenditure of energy by indulging in performance of actions in a mechanical manner cannot be possible for anyone. Besides the matters which necessarily involve classifications with stipulation that in the prescribed cases the power will be exercised and the cases which are outside the prescribed class the power will not be exercised, it is obvious that power cannot be exercised in a mechanical way. In other words wherever it is necessary to decide whether power should or should not be exercised, mechanical performance of power cannot be permitted. In all these cases discretion is to be conferred either on the authority exercising power or on someone else who may act as a guide or master of such authorities. Where the power is conferred upon the authority itself decides and finds out whether in a given case power is to be exercised or is not to be exercised. The other alternative is to confer power to take above decision on some other person known as guide of a master. If neither of the two courses mentioned above is adopted the authority will either act in a mechanical manner or act in a purely arbitrary manner according to its whim, caprice or affectation to which it is subject.
14. Viewed in the above light cognizance by the Magistrate under Section 190 of the Criminal Procedure cannot be allowed to be taken in a mechanical way. Since the functions of the Magistrate is judicial and a judicial function by its nature is a function which is to be performed independently by the Officer on whom judicial power is conferred, the Magistrate cannot be allowed to be guided by any person or authority in the matter of performance of judicial duties, save when he is acting under the orders of a superior Court. The only guidance which can be given to the Magistrate in such cases is by means of principles laid down by law and judicial precedents. It is true that under Section 190 of the Criminal Procedure Code Magistrate has a discretion which must be exercised judicially, but it does not mean that the Magistrate has no discretion in the matter of taking cognizance and is bound to take cognizance of every offence alleged before him.
15. In view of the observations of their Lordships of the Supreme Court in Abhinandan Jha v. Dineshu Mishra, AIR 1968 SC 117 : (1968 Cri LJ 97), the question whether the function of the Magistrate under Section 190 of the Criminal Procedure Code is judicial or not and whether under Section 190 of the Criminal Procedure Code the Magistrate is bound to take cognizance of all offences alleged before him or he has judicial discretion to decide whether to take cognizance of any offence or refuse to take cognizance of offence alleged before him is no longer 'res integra' as it has been established by the ruling of the Supreme Court that the function of the Magistrate under Section 190 of the Criminal Procedure Code is judicial one and after perusal, of the police report called a charge-sheet submitted under Section 173 of the Criminal Procedure Code he may come to the conclusion that cognizance may be taken and he may also come to the conclusion that cognizance may not be taken. In this connection observations made by the Hon'ble Supreme Court in H.S. Bains v. State, AIR 1980 SC 1883 : (1980 Cri LJ 1308), set aside the controversy regarding the powers of the Magistrate under Sections 190 and 204 of the Criminal Procedure Code they observed as below.
"The Magistrate is not bound by the conclusion arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 of the Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report.
Once it is realised that under Section 190 of the Criminal Procedure Code a Magistrate before whom a complaint or a police report alleging the commission of any one or more offences is made has a judicial discretion to take cognizance of an offence, or to refuse to take cognizance of offences, alleged before him, it will not be difficult to come to the conclusion that cases in which the Magistrate does not take cognizance of an offence under Section 190 of the Criminal Procedure Code cannot be equated with cases in which an accused is discharged under Section 227 of the Criminal Procedure Code because refusal to take cognizance under Section 190 of the Criminal Procedure Code does not amount to discharge under Section 227 of the Criminal Procedure Code.
16. The next section which is important is Section 204 of the Criminal Procedure Code. As pointed out in Supreme Court in Raghubansh Dubey v. State of Bihar, AIR 1967 SC 1167 : (1967 Cri LJ 1081), after taking cognizance of an offence it is a duty of the Magistrate to find out who the offenders are and thereafter, issue process against the offenders process is issued against the offender under Section 204 of the Criminal Procedure Code because, that is the only section which after taking cognizance of an offence empowers Magistrate to issue process against an accused.: During arguments the learned counsel for the petitioner submitted that Section 204 of the, Criminal Procedure Code is confined in its application to complaint cases and is not applicable to cases instituted on police report. He has not cited any authority to support his submission. Section 204 is the first section in Chapter XVI of the Criminal Procedure Code and this section applies to all cases whether they are instituted on police report or on a complaint or they are instituted under Clause (c) of subsection (1) of Section 190 of the Criminal Procedure Code. If any authority is needed, reference may be made to Anowar Hussain v. Ajoy Kumar, AIR 1965 SC 1651 : (1965 (2) Cri LJ 686).
17. Issue of summons or warrant of arrest by the Magistrate under Section 204 of the Criminal Procedure Code is so important function of the Magistrate that persons who are arrested under the warrant issued by the Magistrate are not entitled to Fundamental Rights guaranteed by Article 22 Clause (2) of the Constitution. In State of Punjab v. Ajaib Singh, AIR 1953 SC 10: (1953 Cri LJ 180), a Constitution Bench of the Supreme Court considered whether' arrest under made warrant issued by Court were entitled to protection of Article 22(2) of the Constitution. At page 24 (of AIR) their Lordships of the Supreme Court observed: Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a Court and arrests otherwise than under such warrants. As to the first category of arrests, Sections 75 to 86 collected under sub-heading "B" Warrant of Arrest" in chapter 5, Criminal Procedure Code, deal with arrest in execution of warrants issued by a Court under that Code. Section 75 prescribes that such a warrant must be in writing signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench and bear the seal of the Court. Form No. 2 of Sch. 5 to the Code is a form of warrant for the arrest of an accused person. The warrant quite clearly has to state that the person to be arrested stands charged with a certain offence. Form No. 7 of that Schedule is used to bring up a witness. The warrant itself recites that the Court issuing it has good and sufficient reason to believe that the witness will not attend as a witness unless compelled to do so. The point to be noted is that in either case the warrants ex-facie sets out the reason for the arrest namely, that the person to be arrested or is suspected to have committed or is likely to commit some offence. In short, the warrant contains a clear accusation against the person to be arrested. Section 80 requires that the Police Officer or other person executing a warrant must notify the substance thereof to the person to be arrested, and, if so required shall show him the warrant. It is thus abundantly clear that the person to be arrested is informed of the grounds for his arrest before he is actually arrested. Then comes Section 81 which runs thus:
"The Police Officer or other person executing a warrant of arrest shall (subject to the provisions of Section 76 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person."
At page 15 in para 20 their Lordships observed;
Turning now to Article 22(1) and (2), we have to ascertain whether its-protection extends to both categories of arrest mentioned above, and, if not, then which one of them comes within its protection. There can be no manner of doubt that arrest without warrants issued by a Court call for greater protection than do arrests under such warrants. The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the Court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a Court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right. It is also perfectly plain, that the language of Article 22(2) has been practically copied from Sections 60 and 61. Criminal Procedure Code which admittedly prescribed the procedure to be followed after a person has been arrested without warrant. The. requirement of Article 22(1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates arrest without really contemplates an arrest without a warrant of Court, for, as already noted, a person arrested under a Court's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected. There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended. The language of Article 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State interest. In other words, there is indication in the language of Article 22(1) and (2) that it was designed to give protection against the act of the executive or other non-judicial authority."
The words "in the case of arrest under a warrant issued by a Court." Judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of substantive fundamental right" are very important. The language used in Section 204 of the Criminal Procedure Code and the observations of the Supreme Court made in the judgments given in the case of Anowar Hussain v. Ajoy Kumar Mukherjee, AIR 1965 SC 1651 : (1965 (2) Cri LJ 686) and State of Punjab v. Ajaib Singh, AIR 1953 SC 10 : (1953 Cri LJ 180), clearly show that the function of the Magistrate under Section 204 of the Criminal Procedure Code is not a mechanical function and, therefore, the Magistrate cannot issue any process whether a summons or warrant of arrest against any person at the dictate of any person or any authority (except a superior Court). The Magistrate must form his own opinion whether there is or there is not sufficient ground to proceed against the person accused of an offence before him. Unless the Magistrate is so satisfied he cannot issue process against any person. The view that the opinion expressed by the police in its report under Section 173 of the Criminal Procedure Code is binding on the Magistrate, cannot be accepted as correct because to accept it as correct would amount to holding that as soon as the Police Officer submits a report before a Magistrate alleging that a certain person has committed an offence the Magistrate would be bound to issue process against him. The functions of the Magistrate being judicial, it is his duty to find out whether there are sufficient grounds to proceed against any person within the meaning of Section 204 of the Criminal Procedure Code. In these matters the initiative may be of a Police Officer where a case is instituted on a report or of any other public authority if case is instituted on the report or complaint of any other public authority or the initiative that of a private citizen if the case is instituted on his complaint filed under Clause (a) of subsection (1) of Section 190 of the Criminal Procedure Code but the responsibility would be of the Magistrate. If the Magistrate does not find sufficient ground to proceed against any person accused of an offence, he would be within his right to refuse to issue process even if he has taken cognizance under Section 190 of the Criminal Procedure Code, for the simple reason that taking cognizance under Section 190 of the Criminal Procedure Code is the first step when the Magistrate is apprised of the commission of an offence and issue of process under Section 204 of the Criminal Procedure Code is a subsequent action which can be performed by application of a judicial mind, after enquiry under Sections 200 and 202 of the Criminal Procedure Code in the case of a complaint and after perusal of police report submitted under Section 173 of the Criminal Procedure Code in cases instituted on police report, if he comes to the conclusion that there are sufficient grounds to proceed against an accused person.
18. The reason for conferring upon the Magistrate the power to exercise a judicial discretion under Section 190 of the Criminal Procedure Code and under Section 204 of the Criminal Procedure Code is not difficult to find out. Much before the commencement of the Indian Constitution life and personal liberty of the citizen was considered important and the sovereign right to deprive a citizen of life, liberty and personal property in an arbitrary manner was seriously questioned by the people. The English law which was gradually evolved recognized citizen's right to life and personal liberty as important rights and the Judges rules tried to protect the same in no unmistakable terms, the Penal laws were enacted for the purpose of protecting the lives and liberties of the citizen. A bare perusal of the Indian Penal shows that no public authority was saved from the punishment if it deprived any citizen of his life and personal liberty; Otherwise then in accordance with law. Article 21 of the Indian Constitution guarantees right to life and personal liberty and saves it from all such actions as are otherwise then in accordance with the procedure established by law. In Ram Narayan Singh v. State of Delhi, AIR 1953 SC 277 : 1953 Cri LJ 1113 the Supreme Court pointed out that those who feel called upon to deprive person of their personal liberty and discharge of what they called to be their duty must strictly and scrupulously observe the forms used in law. The burden to prove that the act resulting in deprivation of life or personal liberty of any citizen is in accordance with law lies on the person indulging in the act. This burden cannot be shifted to the citizen because of the mandatory provisions of Article 21 of the Indian Constitution. The onus to prove may be shifted in appropriate cases but the burden as pointed out above cannot be shifted.' Since the act of the Magistrate in the matter of issue of process against any person under Section 204 of the Criminal Procedure Code is likely to deprive the citizen of his personal liberty, it is necessary that before process is issued against any person under Section 204 of the Criminal Procedure Code the Magistrate must be satisfied that there are sufficient legal grounds for proceeding. The initiative may be of the police or of any other public authority or of private complainant, but in view of Article 21 of the Constitution the responsibility in the matter of issue of process is that of the Magistrate and, therefore, he must judicially apply his mind to decide whether in the case before him, he should or should not issue process against any person. The fact that in view of Supreme Court's decision in State of Punjab v. Ajaib Singh, AIR 1953 SC 10 : (1953 Cri LJ 180), persons arrested under a warrant issued by the Magistrate are not entitled to fundamental right given by Article 22 Clause (2) of the Constitution, clearly show that the responsibility of the Magistrate issuing process under Section 204 of the Criminal Procedure Code cannot be overestimated. He must act judicially in the matter, Keeping in view the fact that his act of proceeding against citizen may deprive citizen of his personal liberty. In Joginder Kumar v. State of U.P., 1994 Cri LR (SC) 484 : (1994 Cri LJ 1981), it was held that merely because the Police Officer has the power to arrest, he cannot arrest unless there be justification for making arrest. Merely because a certain authority has a power to do thing does not mean that the authority can do that thing without justification. Just as a Police Officer must have power as well as justification for making arrest the Magistrate too must have power under Section 204 of the Criminal Procedure Code as well as justification for proceeding against any person. Therefore I find no difficulty in coming to the conclusion that a Magistrate is not bound to act according to the dictates of Police Authorities or any other public authorities or any private citizen in the matter of issue of process against any person. Magistrate should judicially apply his mind and then come to the conclusion whether he should or should not issue process against any person under Section 204 of the Criminal Procedure Code. It is his responsibility to ensure that by his action no person is deprived of his personal liberty otherwise than in procedure established by law. It means that if on judicial application of mind he comes to the conclusion that there is no ground for proceeding he would be within his rights to decline to issue process against the alleged accused, and such an order would be an order under Section 204 of the Criminal Procedure Code and would not amount to discharge of an accused person under Section 227 of the Criminal Procedure Code.
19. For reasons stated, above the impugned order passed by the learned Judicial Magistrate, Rajgarh, can at best be described as an order declining to take cognizance of offences punishable under Sections 395 and 397 of the Criminal Procedure Code. The stage for committing the case to the Court of Session under Section 209 of the Criminal Procedure Code has yet not been reached and the stage for framing charge or of discharging the accused persons of any offence or offences for which they have been proceeded against has yet not been reached.
20. The learned counsel for the petitioner has not drawn my attention to any fact or facts which may be said to constitute Session triable offences. I, therefore, express no opinion as to whether any Session triable offence is or is not constituted by the facts appearing from the police report and other documents placed before the Magistrate. Therefore, while this petition deserves to be rejected, it would be proper to clarify that at the time of hearing arguments on charge, it would be open to the learned Judicial Magistrate to consider whether the facts prima facie proved by evidence collected by the Police do or do not constitute any Session triable offence and if the learned Judicial Magistrate comes to the conclusion that a Session triable offence is made out he would be within his rights to commit the case to the Court of Sessions under Section 209 of the Criminal Procedure Code and if he comes to the conclusion that no Session triable offence is made out by the facts prima facie established by the police report and evidence collected, he would be within in his rights to frame charges for the offences triable by him and to commence a trial, subject of course, to such orders as may be passed by the Court of Sessions or by this Court in appropriate proceeding.
21. With the above observations this petition deserves to be dismissed and is hereby dismissed. The stay order granted by the Court is hereby vacated. A copy of this order be sent to the Judicial Magistrate, Rajgarh, Churu, for Information and necessary action.