Himachal Pradesh High Court
Pooja Kumari & Another vs Kamal Nain Kaur on 19 November, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 128 of 2019 Reserved on: 23-08-2019/ 23-09-2019 Date of Decision: November 19th, 2019 .
Pooja Kumari & another ...Petitioners.
Versus
Kamal Nain Kaur ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting? YES For the petitioners : Mr. Rajiv Rai, Advocate.
For respondent : Mr. Imran Khan, Advocate. Amicus Curiae : Mr. Vijay Arora, Advocate Anoop Chitkara, Judge Challenging a series of orders, including issuance of summons, passed by learned Chief Judicial Magistrate, Chamba, on a complaint by the victim against seven persons, arraigned as accused for barging into her house, after forming an unlawful assembly, and then assaulting, molesting, insulting and intimidating her, the accused No. 2 and 1, have come up before this Court, by filing this petition under Sections 397 and 401 of CrPC, on grievances that these orders are illegal, unreasoned, and without consideration.
2. The complainant alleged that the acts of the accused persons make out a case for commission of offences punishable under Sections 147, 149, 323, 354, 452, 500, 504 & 506 of the IPC, and sought their prosecution.
Consequently Chief Judicial Magistrate, Chamba, HP, registered the complaint in its file as Private Complaint number 36 of 2017. The Petitioners are not ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 2 challenging the veracity of allegations made by the complainant. Their grudge is the procedure adopted and the manner in which Ld. Chief Judicial Magistrate proceeded in the matter. Be that as it may, adjudication of present controversy does not need to embark a discussion on the credibility of the .
complainant and her witnesses.
3. Heard Mr. Rajiv Rai, Counsel for the Petitioners/Accused, Mr. Imran Khan, Counsel for the Respondent/Complainant, and Mr. Vijay Arora Advocate, who was appointed as Amicus Curiae vide order dated Sep 23, 2019, to assist the Court on propositions of law involved in the matter. I have also waded through the case file with utmost care.
4. Structure of the case set up by the petitioners rests on the following four pillars:
i). The first pillar on which the petitioners have based their case is that the complainant had filed her complaint under Section 156(3) of the Code of Criminal Procedure, 1973 (After now called 'CrPC'). In contrast, Ld. Chief Judicial Magistrate has proceeded in the matter as if it was a complaint filed under Section 190 CrPC.
ii). The second pillar is that while acting under Section 156(3) of CrPC, there was no power with the Chief Judicial Magistrate to record evidence of the complainant and her witnesses, as such, the evidence so recorded, is without jurisdiction.
iii). The third pillar, which bears the maximum load of the case of the petitioners, is that without even taking cognizance of the offence, Ld. Chief Judicial Magistrate, has summoned the accused, and this was not permissible under ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 3 Section 156 (3) of CrPC. It amounts to an abuse of process of law.
iv). The fourth pillar, which from outside looks most robust, is that Ld. Magistrate had summoned the accused, whereas he did not pass any order reflecting taking of .
cognizance. Consequently, there is no material to ascertain the application of mind by Ld. Chief Judicial Magistrate.
5. This Court proposes to answer all the contentions; therefore, I will deal with each of them, one by one.
DISCUSSIONS AND REASONING COMPLAINT WAS UNDER 156 (3) CRPC OR 190(1)(a) CRPC:
6. Coming to the first contention, a bare perusal of the complaint (Annexure P-2), reveals that although the heading of the complaint does not state provision of law under which the complainant had filed it, impliedly this complaint was under Section 190(1)(a) of CrPC and not Section 156(3) of CrPC. Therefore, to analyze this fact, it shall be apposite to discuss the scope of Section 156(3) CrPC.
a). Whenever a cognizable offence comes to notice of an Officer-in-charge of a Police Station, then it is mandatory to register FIR under Section 154 CrPC. Law to this point is no more res Integra, given mandate of the Constitutional Bench of Supreme Court in Lalita Kumari, (2014) 2 SCC 1. However, if the offence is non-cognizable, then in compliance with Section 155(1) CrPC, the police mention this fact in the daily diary, and refer the informant to concerned Judicial Magistrate.
b). Where despite offence being cognizable, the police refuses to register FIR, then the informant, may approach the Superintendent of Police (SP) having ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 4 jurisdiction over such Police Station, under Section 154(3) CrPC, seeking directions to the Station House Officer (SHO) to register FIR.
c). Section 155(2) CrPC mandates that the police shall not investigate non-cognizable offence, without an order of .
the Magistrate having the power to try such a case or to commit such a case for trial. Section 156 CrPC specifies powers of the officer-in-charge of Police Station, to investigate any cognizable offence.
d). The proviso to Section 156(3), to which petitioner is placing reliance, states that any Magistrate empowered under Section 190 CrPC, may also order an investigation. Section 156 (3) CrPC primarily comes into operation only when SHO and SP fail to register an FIR, despite the allegations prima facie disclosing commission of a cognizable offence; or the Judicial Magistrate, not being satisfied with the investigation, explicitly directs further investigation. In the present complaint, there is no averment that the victim had approached the SHO or the SP, and upon their refusal, the complainant had approached the Magistrate under Section 156(3) of CrPC.
e). A bare reading of Section 190 Cr.P.C. will clinch the matter:
190 (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any
person other than a police officer, or upon his own knowledge, that such offence has been committed.::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 5
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
f). The heading of the Complaint (P-2) reads, "Private .
complaint under Sections 147, 149, 323, 354, 452, 500, 504 and 506 IPC" and the title of the case is "In the Court of Chief Judicial Magistrate, Chamba, H.P." Thus, there cannot be even a slightest of doubt that the Complaint was a Private complaint, filed under Section 190(1)(a) CrPC, directly before Chief Judicial Magistrate, Chamba. Accordingly, the first pillar of the petitioner demolishes, and so go the arguments.
MAGISTRATE HAD RECORDED THE PRELIMINARY STATEMENTS UNDER SECTION 200 CRPC:
7. The second contention of the petitioners is that Ld. Magistrate had acted on the complaint under Section 156(3) of CrPC, wherein he had no jurisdiction to record evidence of the complainant and her witnesses.
8. It is also necessary to embark Sections 200 to 204 CrPC, extracts of which read as follows:
CHAPTER XV Complaints To Magistrates
200. Examination of complainant. - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :
Provided that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 6
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192 :
Provided further that if the Magistrate makes over the .
case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
201. Procedure by Magistrate not competent to take cognizance of the case. - If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, -
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct complainant to the proper Court.
202. Postponement of issue of process. - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself 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 :
Provided that no such direction for investigation shall be made, -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 7
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to .
produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer-in-charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint. - If, after considering the statement on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
CHAPTER XVI Commencement Of Proceedings Before Magistrates
204. Issue of process. - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -
(a) a summons case, he shall issue his summons for the attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 8(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
.
9. The Chief Judicial Magistrate had recorded the statement of the complainant and her witnesses under Section 200 of CrPC in the exercise of the powers vested with him under Chapter XV of CrPC. Since the Magistrate had received information about the offence based on a complaint, seeking prosecution, consequently, he rightly followed the procedure envisaged under chapter XV CrPC. The discussions made while answering the first contention, cover this contention. Resultantly the first pillar takes along the second pillar of the case. Accordingly, this post of the petition demolishes, and so go the arguments. A reference to the reasoning given in following judicial pronouncement will also clinch this proposition.
10. In Suresh Chand Jain v. State of M.P. & Anr. (2001) 2 SCC 628, Supreme Court holds,
7. 156. Police officer's power to investigate cognizable cases. - (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.
8. The investigation referred to therein is the same investigation the various steps to be adopted for it have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer-in-charge of a police station, of the substance of the information relating to ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 9 the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that Chapter can be commenced by the police even without the order of a magistrate.
But that does not mean that when a magistrate orders .
an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.
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 would convince 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 dismissed 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 persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding". This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.
10. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does no, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in- charge of the police station as indicted in Section 154 ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 10 of the Code. Even if a magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps .
contemplated in Chapter XII of the Code only thereafter.
SUMMONING BEFORE OR AFTER TAKING COGNIZANCE:
11. The third contention is the pillar, which bears the maximum load. The case of the petitioners is that the Chief Judicial Magistrate, without even taking the cognizance of the offence has summoned the accused, and this was not permissible under Section 156 (3) of CrPC, and amounts to an abuse of process of law. Another grievance of the petitioners is that the Court issued summons even before considering the merits of the allegations made in the complaint.
a). The complaint is dated May 29, 2017. After this, on Jun 6, 2017, the Chief Judicial Magistrate took its notice and also called for the presence of the complainant. Subsequently, the listing was for recording the preliminary evidence. On May 16, 2018, the complainant Smr. Kamal Nain Kaur, appeared as CW-1, one Kewal Krishan appeared as CW-2, and Narender Kaur appeared as CW-3. After recording their statements, the Court closed the preliminary evidence.
b) Vide impugned orders dated Oct 9, 2018, and Jan 15, 2019, the Court summoned the accused. Vide order dated Jan 15, 2019, the Chief Judicial Magistrate directed accused No.1 to furnish personal and surety bonds, which he did. After that, the Court issued Summons against remaining accused to appear on Apr 17, 2019, on which date, the matter was also fixed for consideration.
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 11c). According to the learned counsel appearing for the petitioner, learned Chief Judicial Magistrate did not take cognizance before issuing summons to the accused, which is an abuse of process of law, impermissible under Section 156(3) of CrPC.
.
12. To unveil the legal quandary, a brief survey of 'Cognizance' would illuminate everything, clearing all concepts.
13. The word cognizance is not defined under CrPC. New Lexicon Webster's Dictionary, (1988) New York, defines the word cognizance as, "The range of mental observation or awareness, the fact of being aware, knowledge, (Law) the powers given to a Court to deal with a given matter, jurisdiction."
14. Shorter Oxford English Dictionary, Sixth Edition, defines word 'Cognizance' rooting from Old French "conis(s)aunce, as "Knowledge, understanding, acquaintance, awareness," and in the context of LAW as, "Acknowledgement, esp. of a fine; admission of an alleged fact."
15. Wharton's Law Lexicon (14th Edition), defines Cognizance as follows, Cognizance (Judicial), knowledge upon which a judge is bound to act without having it proved in evidence:
as the public statutes of the realm, the ancient history of the realm, the order and course of proceedings in Parliament, the privileges of the House of Commons, the existence of war with a foreign State, the several seals of the King, the Supreme Court and its jurisdiction, and many other things. A Judge is not bound to take cognizance of current events, however notorious, nor of the law of other countries.
16. The meaning of Cognizance given in Black's Law Dictionary, 10th Edition, reads as under, Cognizance:- Jurisdiction, or the exercise of jurisdiction, or power to try and determine causes; judicial examination of a matter, or power and authority to make it. Judicial notice or knowledge; the ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 12 judicial hearing of a cause; acknowledgment; confession, recognition.
17. The excerpts from the Judicial pronouncements, where the Courts have explained the meaning of Cognizance, are as follows:
i). In Emperor v. Sourindra Mohan Chuckerbutty, (1910) .
I.L.R. Vol. XXXVII, Cal. 413, a Division Bench of the Calcutta High Court observed, "taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence".
ii). Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal 437, explained Cognizance in the following terms, 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), Criminal Procedure Code, 1973 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.
iii).This principle of law got approval of a three member bench of Supreme Court in R.R. Chari v. State of Uttar Pradesh, 1951 SCR 312, wherein, a three member ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 13 bench of Supreme Court, held that that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate, under one of the three contingencies, mentioned in Section 190 CrPC.
.
iv). In Ajit Kumar Palit v. State of West Bengal, AIR 1963 SC 765, Supreme Court holds,
19. ...The "word cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means - become aware of and when used with reference to a Court of Judge, to take notice of judicially...
v). In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, Supreme Court holds,
6. 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 or 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.
7. 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 ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 14 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.
9. In the case before us the Magistrate after receipt of .
Bhadai Shah's complaint proceeded to examine him under Section 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under Section 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by Section 200 the Magistrate could have issued process at once under Section 204 of the Code of Criminal Procedure or could have dismissed the complaint under Section 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under Section 202 of the Code of Criminal Procedure. That section empowers the Magistrate to "postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint". If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under Section 203 of the Code of Criminal Procedure.
vi). In Darshan Singh Ram Kishan v. State of Maharashtra, (1972)1 SCR 571, three member bench of Supreme Court holds, ...As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 15 therefore, takes place at a point when a magistrate first takes judicial notice of an offence.
vii). In Nirmaljit Singh Hoon v. State of W.B, (1973) 3 SCC 753, Supreme Court holds,
22. Under Section 190 of the Code of Criminal .
Procedure, a magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can under Section 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding.
viii). In Devarapalli Lakshminarayana Reddy v.
Narayana Reddy, (1976) 3 SCC 252, a three Judges bench of Supreme Court holds,
14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. 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 ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 16 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.
17. Section 156 (3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading "Of complaints to Magistrate". The power to order police investigation under Section 156 (3) is different from the power to direct investigation conferred by Section 202 (1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage, the second at the post-cognizance stage when the magistrate is in seisin of the case. That is to say 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). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156 (3).
It may be noted further that an order made under sub- section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156 (1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding." Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 17 Magistrate in completing proceedings already instituted upon a complaint before him.
ix). In Tula Ram and others v. Kishore Singh, AIR 1977 SC 2401, Supreme Court holds, It seems to us that there is no special charm or any .
magical formula in the expression "taking cognizance"
which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus what Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations.
x). In H.S. Bains v. State (Union Territory of Chandigarh), (1980) 4 SCC 631, Supreme Court holds,
6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record and statements of the complainant and the witnesses present under Section 200.
Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156 (3). The police will then investigation and submit a report under Section 173 (1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightway issue process.
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 18This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to .
issue process even it the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code, 1973 and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and
204. Thus a Magistrate who on receipt of a complaint, orders an investigation under Section 156 (3) and receives a police report under Section 173 (1), may, thereafter, do one of three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action : (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process : this he may do without being bound in any manner by the conclusion arrived at by the police in their report : (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
xi). In A.R. Antulay v. Ramdas Sriniwas Nayak, AIR 1984 SC 718, A Constitutional Bench of Supreme Court holds,
26. If Sec. 190 is not attracted all the three modalities of taking cognizance of offences would not be available.
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 19xii). In Kishun Singh and Others v. State of Bihar, (1993) 2 SCC 16, Supreme Court holds,
7. ...Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of .
the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Sections 200/204 of the Code."
xiii). In State of W.B. v. Mohammed Khalid, (1995) 1 SCC 684, Supreme Court holds,
43. ...The word "cognizance" indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.
xiv). In Narsingh Das Tapadia v. Goverdhan Das Partani, (2000) 7 SCC 183, Supreme Court, holds,
8. "Taking cognizance of an offence" by the court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 20 kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence (Narayandas Bhagwandas Madhavdas v. State of West Bengal, AIR 1959 Supreme Court 1118; and Gopal Das Sindhi and others v. State of Assam and another, .
AIR 1961 Supreme Court 986).
xv). In Bhagat Ram v. Surinder Kumar, (2004) 11 SCC 622, Supreme Court, holds, As to when cognizance of an offence is taken will depend upon facts and circumstances of each case and it is not possible to state the same with precision. Obviously, it is only when the Magistrate applies his mind for purpose of proceeding under Section 200 Criminal Procedure Code and subsequent Sections that it can positively be stated that he has taken cognizance. To derive this inference we rely upon the decision in Narayandas Bhagwandas Madhavdas v.
The State of West Bengal-AIR 1959 SC 1118 and Devarapalli Lakshminarayana Reddy and Ors. v.
V.Narayana Reddy and Ors.-AIR 1976 SC 1672.
xvi). In CREF Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd., (2005) 7 SCC 467, Supreme Court, holds,
3. It is not in dispute that four cheques were issued by respondent No. 2, the Managing Director of the respondent No. 1 Company for the total amount of rupees five crores. The payments were made by respondent No. 2 on behalf of the respondent No. 1 company of which he was a Director. The cheques were dishonoured since the respondent No. 2 stopped payment of those cheques. The appellant filed a complaint before the 14th Additional Chief Metropolitan Magistrate, Bangalore who on 19.4.2000, the date of filing of the complaint itself, directed the matter to be put up on 01.06.2000. The rubber seal order put on the complaint itself reads as follows :-
"Presented on 19/4/2000 Cognizance taken ...........
Register & put up on 1/6/2000 Sd.........."::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 21
10. In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of statement of the complainant on 01.06.2000. Even if we assume, though that is not the case, that the words "cognizance taken" were not to be found in the order recorded by .
him on that date, in our view that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the Court may consider it appropriate to send the complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that Court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 22 should be held to have taken cognizance of the offence and proceeded with the inquiry. We are, therefore, of the opinion that in the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal.
.
xvii). In S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492, Supreme Court holds,
14. ...This raises the incidental question : What is meant by "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190?. This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. 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". [see also M.L. Sethi v. R.P. Kapur & Anr., (1967) 1 SCR 520].
xviii). In Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC 424, Supreme Court holds, ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 23
11. ...Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance.
xix). In Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director, (2014) 2 SCC 62, a Constitutional bench of Supreme Court holds, .
31. It is now necessary to see what the words `taking cognizance' mean. Cognizance is an act of the court. The term `cognizance' has not been defined in the Cr.P.C. To understand what this term means we will have to have a look at certain provisions of the Cr.P.C. Chapter XIV of the Code deals with `Conditions requisite for initiation of proceedings'. Section 190 thereof empowers a Magistrate to take cognizance upon (a) receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Chapter XV relates to `Complaints to Magistrates'. Section 200 thereof provides for examination of the complainant and the witnesses on oath. Section 201 provides for the procedure which a Magistrate who is not competent to take cognizance has to follow. Section 202 provides for postponement of issue of process. He may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether there is sufficient ground for proceeding. Chapter XVI relates to commencement of proceedings before the Magistrate. Section 204 provides for issue of process. Under this section if the Magistrate is of the opinion that there is sufficient ground for proceeding and the case appears to be a summons case, he shall issue summons for the attendance of the accused. In a warrant case, he may issue a warrant. Thus, after initiation of proceedings detailed in Chapter XIV, comes the stage of commencement of proceedings covered by Chapter XVI.
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 24xx). In Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420, Supreme Court holds,
20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial .
notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course.
xxi). In Birla Corporation Limited v. Adventz Investments and Holdings Limited & Others, AIR 2019 SC 2390, Supreme Court holds,
34. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction.
36. To be summoned/to appear before the Criminal Court as an accused is a serious matter affecting one's dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused.
xxii). In Kesavan Natesan v. Madhavan Peethambharan And Ors, 1984 CriLJ 324, a three member bench of Kerala High Court observes,
13. If "taking cognizance" means only "becoming aware of" or "taking judicial notice of" an offence, whatever might be the situation in a given case, in law the Magistrate takes cognizance or becomes aware of an offence only once. In that sense, it is correct to say that Magistrate cannot take cognizance of an offence twice. When on the basis of a police report or private complaint or otherwise, a Magistrate takes cognizance of an offence, he ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 25 becomes aware of the commission of the offence and that awareness will certainly continue or at any rate in the eyes of law, be deemed to continue. In such state of affairs, the commission of an offence is again brought to his notice, say by way of private complaint; strictly speaking, he does not take cognizance of the offence again but exercises his .
judicial power and proceeds with that case in pursuance of the cognizance already taken by him on the previous occasion.
xxiii). In Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director, (2014) 2 SCC 62, a Constitutional bench of Supreme Court holds,
51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 of the Cr.P.C. the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance...
SUM UP:
18. From the summary of judicial precedents relating to Cognizance, the following fundamental principles emerge:
a) A Magistrate who on receipt of a complaint, orders an investigation under Section 156 (3) and receives a police report under Section 173 (1), may, thereafter, do one of the three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action :
(2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process : this he may do without being bound in any manner by the conclusion arrived at by the police in their report : (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. (H.S. Bains, (1980) 4 SCC 631).::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 26
b) The ways in which cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). 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. (Videocon, (2008) 2 SCC
492.
c) If Sec. 190 is not attracted all the three modalities of taking cognizance of offences would not be available. (A.R. Antulay v. Ramdas Sriniwas Nayak, AIR 1984 SC 518, (Constitutional Bench).
d) Cognizance is an act of the Court; (Sarah Mathew, (2014) 2 SCC 62, Constitutional Bench).
e) Cognizance, in reference to a Magistrate, means to take notice judicially; (Ajit Kumar Palit, AIR 1963 SC 765).
f) Cognizance is taken of cases and not of persons;
(Mohammed Khalid, (1995) 1 SCC 684).
g) There is no special charm or any magical formula in the expression "taking cognizance" which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. (Tula Ram, AIR 1977 SC 2401).
h) Cognizance is taken for the purpose of issuing process to the accused; (Mehmood Ul Rehman, (2015) 12 SCC
420).
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 27i) Cognizance is the condition precedent to the initiation of proceedings by the Magistrate, (Mohammed Khalid, (1995) 1 SCC 684).
j) Initiation of the proceedings against a person commences .
on the cognizance of the offence by the Magistrate under one of the three contingencies, mentioned in Section 190 CrPC. (R.R. Chari, AIR 1951 SC 207).
k) Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence; (Kishun Singh, (1993) 2 SCC 16).
l) What Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. (Tula Ram, AIR 1977 SC 2401).
m) 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); (Devarapalli, (1976) 3 SCC 252 (Three Judges bench).
n) The Magistrate must not only have applied his mind to the contents of the petition, but he must have done ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 28 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; (Abani, AIR 1950 Cal
437).
o) Even if the words "cognizance taken" were not to be found in the order recorded by Magistarte that would make no difference. (CREF Finance, (2005) 7 SCC
467).
p) Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. (Darshan Singh, (1972)1 SCR 571, Three Judges Bench).
q) Cognizance takes place at a point when a Magistrate first takes judicial notice of an offence; (Darshan Singh, (1972)1 SCR 571, Three Judges Bench).
r) A case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. (Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541).
s) Taking cognizance of an offence by the court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the court for initiating judicial proceedings against the offender in respect of the ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 29 offence regarding which the complaint is filed; (Narsingh Das Tapadia, (2000) 7 SCC 183.
t) If "taking cognizance" means only "becoming aware of"
or "taking judicial notice of" an offence, whatever might be the situation in a given case, in law the Magistrate .
takes cognizance or becomes aware of an offence only once. In that sense, it is correct to say that Magistrate cannot take cognizance of an offence twice. When on the basis of a police report or private complaint or otherwise, a Magistrate takes cognizance of an offence, he becomes aware of the commission of the offence and that awareness will certainly continue or at any rate in the eyes of law, be deemed to continue. In such state of affairs, the commission of an offence is again brought to his notice, say by way of private complaint; strictly speaking, he does not take cognizance of the offence again but exercises his judicial power and proceeds with that case in pursuance of the cognizance already taken by him on the previous occasion; (Kesavan Natesan, 1984 CriLJ 324 (Full Bench Kerala).
u) For the purpose of computing the period of limitation under Section 468 of the CrPC, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance; (Sarah Mathew, (2014) 2 SCC 62, (Constitutional bench).
CONCLUSION:
19. Cognizance is the awareness of a Judge about the commission of some offence. A Court, having jurisdiction, takes cognizance of an offence, when it neither dismisses the complaint nor refers it for further investigation, and instead notices that the allegations in the complaint, prima facie point ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 30 towards commission of an offence, and on such awareness, she consciously proceeds further, leading to issuance of process and summoning the accused.
The mysticism behind the charm of the word Cognizance is that it is a sine qua non to set the criminal justice system in motion. Cognizance has three stages- Pre Cognizance- buried in the Earth (The seed), cognizance- on the surface of .
the Earth (The green shoots); Post Cognizance - above the Earth (The sapling).
20 Cognizance is a Magistrate peeping through a keyhole and examining whether an offence has been committed or not; and if yes, then whether she has jurisdiction to proceed further. A Magistrate, having jurisdiction, before she takes cognizance of an offence, she conducts thorough frisking of the complaint at the check post of judicial scrutiny, exploring existence of a prima facie case, and only when the complaint passes the test of her satisfaction, she issues process, ensuring the elimination of frivolous prosecutions at the very initial stage, saving people from the trauma of a long and tiring criminal trial.
21. A perusal of the order sheet reveals that the Chief Judicial Magistrate had issued summons only after taking cognizance of the offence and after consideration of the Complaint. Thus the contention fails.
THERE IS NO REQUIREMENT TO WRITE A DETAILED ORDER AND REASONS NOR THE WORDS, 'COGNIZANCE TAKEN':
22. The fourth pillar, which on its appearance seems most robust so far, has no steel inside. The contention is that Ld. Magistrate had summoned the accused, in the absence of any order reflecting taking of cognizance. Consequently, there is no material to ascertain the application of mind by Ld. Chief Judicial Magistrate.
23. In the present matter, there is no specific order of the Court writing the words, "Cognizance Taken." The Chief Judicial Magistrate impliedly applied his mind and took Cognizance of offence on June 20, 2017, when the case was listed for consideration and the Court ordered recording of preliminary evidence.
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 3124. In H.S. Bains v. State (Union Territory of Chandigarh), (1980) 4 SCC 631, Supreme Court holds,
9. ...We however wish to observe that it was wholly unnecessary for the Magistrate to write such an elaborate order as if he was weighing the evidence and .
finally disposing of the case.
25. In Kanti Bhadra Shah v. State of West Bengal, (2000) 1 SCC 722, Supreme Court holds, ...We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial... Court further holds, "The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order."
26. In Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420, Supreme Court holds,
22. Under Section 190(1)(b) of Cr.P.C., the Magistrate has the advantage of a police report and under Section 190(1)(c) of Cr.P.C., he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of Cr.P.C., he has only a complaint before him. The Code hence specifies that, "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of Cr.P.C. The complaint is simply to be rejected.
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 3223. The steps taken by the Magistrate under Section 190(1) (a) of Cr.P.C. followed by Section 204 of Cr.P.C. should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court.
.
The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 of Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of Cr.P.C., by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court under Section 482 of Cr.P.C. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.
27. In Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal and others, (2003) 4 SCC 139, Supreme Court holds, "At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 3328. In Tara Dutt and others etc., v. State of H.P., 1991 CriLJ 3339, a bench of this Court observed,
11. It is noticeable that where the Court is of opinion that there is no sufficient ground for proceeding or that the charge against the accused is groundless, it has to .
record reasons for dismissal of a complaint or discharge of the accused. This is expressly provided by the statute. No such requirement has been expressly laid down in the statute where the Court feels that there is sufficient ground for proceeding and directs issue of process or is of opinion that there is ground for presuming that the accused has committed an offence and proceeds to frame a charge against him.
APPLICATION OF MIND BEFORE TAKING COGNIZANCE:
29. In M/s Pepsi Foods Ltd v. Special Judicial Magistrate, (1998) 5 SCC 749, a three Judge Bench of Hon'ble Supreme Court observed as under:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 34
30. In Jagdish Ram v. State of Rajasthan and Another (2004) 4 SCC 432, Supreme Court holds,
10. ... The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not .
whether there is sufficient ground for conviction.
Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry..."
31. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492, Supreme Court holds,
22. Chapter XV (Sections 200-203) relates to "Complaints to Magistrates" and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course.
It enables him before the issue of process either to inquire into the case himself 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 there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused."
32. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and another, (2009) 2 SCC 147, Supreme Court holds,
14. It is settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 35 be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.
33. In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, Supreme Court holds,
11. Under Section 190 of the Code, it is the application .
of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.
12. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished under Section 174 Indian Penal Code. It is a ground for contempt of court.
13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.
14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 36 of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.
34. In Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424, Supreme Court holds,
9. It is also well settled that cognizance is taken of the .
offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case.
35. In State of Gujarat v. Afroz Mohammed Hasanfatta, AIR 2019 SC 2499, Supreme Court holds,
21. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C., 1973 is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., 1973 the expression used is "there is sufficient ground for proceeding....."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming that the accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., 1973 detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C., 1973.
::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 37JUDICIAL PROCESS SHOULD NOT BE AN INSTRUMENT OF OPPRESSION OR NEEDLES HARASSMENT:
36. In Punjab National Bank and Others v. Surendra Prasad Sinha .
1993 Supp (1) SCC 499, Supreme Court holds,
5. It is also salutary to note that judicial process should not be an instrument of oppression or needles harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case of harass them for vendetta.
SUM UP:
37. The procedural law provides a mechanism for the enforcement of substantive criminal law. The order-sheet of the Magistrate, summoning the accused, in a case filed on a complaint otherwise than on a police report, i.e. filed under Section 190(1) (a) of CrPC, must show that the she has applied her mind to the allegations. However, the Magistrate need not pass either a detailed and elaborative order or write the words, 'Cognizance Taken'. The ::: Downloaded on - 20/11/2019 20:25:09 :::HCHP 38 legal process should not be an instrument of oppression and harassment. So the stage of taking cognizance is a critical and Magistrate must apply her mind in the pursuit of substantial justice.
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CONCLUSION:
38. The above analysis, discussions, and reasoning lead to the irrefutable conclusion that the Ld. Chief Judicial Magistrate did not commit any illegality or irregularity while proceeding in the matter. Resultantly the petition is dismissed, all applications closed.
(Anoop Chitkara) Judge.
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