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Sidhinath Lahkar and anr. Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantSidhinath Lahkar and anr.
RespondentThe State
Excerpt:
.....relationship with the object sought to be achieved and therefore falls out. bearing in the mind the purpose of these provisions as well as the scheme of the act and on a harmonious construction of the various provisions in the act, we are of the opinion that in cases like those before us the magistrate who is also a court as provided in section 22 must at the first instance proceed against the persons complained against under the penal provisions in section 3 or 7 as the case may be, and only after the disposal of those oases take action under section 18 if there is occasion for it......the additional district magistrate sent the same to the judicial magistrate for disposal. the learned magistrate, on receipt of the same, directed the officer-in-charge of the rangiya police station to register a case and to report in final form after investigation. this original complaint was later on received at the police station and registered as police station case no. 6 (2) 65 under sections 448, 325, 324 and 379, ipc, on 8 2-1965 and the police after investigation submitted charge-sheet against both the accused petitioners under sections 448 and 325, ipc. thus the complaint registered as first information report ended in submission of charge-sheet dated 4-4.1965 by the police. meanwhile it appears ]f from the order-sheet that the accused persons surrendered before the.....
Judgment:

P.K. Goswami, C.J.

1. This Criminal Revision is directed against conviction Under Sections 323/448, Indian Penal Code, and sentence of fine of Rs. 300/- on each of the petitioners, in default rigorous imprisonment for one month each. The learned Sessions Judge, after appreciating the evidence, agreed with the findings of the trial Court and affirmed the conviction and sentence.

2. The only point raised by Mr. Kataky, the learned Counsel for the petitioners, is that the entire trial is vitiated as the trial court did not itself take cognizance of the offences Under Section 190 (l) (a), Cr.PC, and there, after follow the procedure laid down in Chapter XVI Chapter XVII and ultimately the provisions laid down Under Section 252 and the subsequent sections of the Criminal Procedure Code.

3. The material facts which are necessary to appreciate the above submission are as follows:—A complaint was filed against the accused under Sa. 448, 325, 321 and 379, Indian Penal Code, in the Court of the Additional District Magistrate (Judicial), Gaubati on 30-1-1965. After receipt of the complaint, the Additional District Magistrate sent the same to the Judicial Magistrate for disposal. The learned Magistrate, on receipt of the same, directed the officer-in-charge of the Rangiya Police Station to register a case and to report in final form after investigation. This original complaint was later on received at the police station and registered as Police Station Case No. 6 (2) 65 Under Sections 448, 325, 324 and 379, IPC, on 8 2-1965 and the Police after investigation submitted charge-sheet against both the accused petitioners Under Sections 448 and 325, IPC. Thus the complaint registered as first information report ended in submission of charge-sheet dated 4-4.1965 by the police. Meanwhile it appears ]f from the order-sheet that the accused persons surrendered before the Additional District Magistrate (Judicial) on 16-2-19,65 and the learned Magistrate admitted them to bail with direction to appear before the Officer in charge of the Rangiya Police Station in connection with the case, which has already been registered. Ultimately the charge-sheet was taken cognizance of by the Additional District Magistrate (Judicial) on 19-4-1965 and the case was transferred to the Judicial Magistrate for disposal, who followed the procedure as laid down Under Section 251A, Cr.PC

4. The learned Counsel contends that the complaint was taken the cognizance of by the Additional District Magistrate (Judicial) on receipt of the same from the complainant and therefore he had no powers of transferring the case to the Judicial Magistrate, who again had no powers to send the complaint, without taking cognizance, to the police for investigation.

5. Referring to the first order of the Additional District Magistrate (Judicial), we may at once state that that was an administrative order transmitting the complaint in the usual course of official business to a competent Magistrate for disposal. Therefore, it cannot be said that the Additional District Magistrate (Judicial) by mere receipt of the complaint and transmitting the document to a Judicial Magistrate has applied his judicial mind which was necessary for the purpose of taking cognizance of an offence. Secondly the Judicial Magistrate who received the complaint from the Additional District Magistrate (Judicial) seeing that the complaint was laid regarding cognizable offence, he being empowered Under Section 190 to take cognizance of these offences, was competent Under Section 156 (3), Criminal P.C., to order the police to investigate the case.

6. The learned Counsel submits that the learned Judicial Magistrate had no option but to take cognizance of the complaint Under Section 190 (1) (a). According to him, may take cognizance' in Section 190 means 'must take cognizance'. He seeks to support his submission by referring to a decision of the Supreme Court in : 1968CriLJ82 (Sub.Divissional Magistrate, Delhi v. Ram Kali). A brief enumeration of the facts of that case may help. Notices were issued by Sub-divisional Magistrate to the respondents in those appeals on the basis of police report to show cause why the premises occupied by them should not be attached Under Section 18(1) of the Suppression of Immporal Traffic in Women and Girls Act, 1956, as those premises were being used as brothels. The respondents challenged the validity of Section 18 of the Act before the Magistrate and when the learned Magistrate refused to refer the matter to the High Court on their prayer, they moved the High Court under Article 226 of the Constitution in the writ jurisdiction. The learned Judges of the High Court held that 'whenever action is taken un3er Section 18 independently of Section 7, it would offend Article 14 of the Constitution and to that extent Section 18 would be ultra vires of the Constitution'.

7. Their Lordships of the Supreme Court have upheld the orders of the High Court in quashing the notices but did not agree with the reasons given- by the High Court in the conclusion set out above. On the other band, the Supreme Court held:

Section 18 provides for two classes of cases namely, (1) those coming either Under Sections 3 or 7 as well as Under Section 18, and (2) those coming only Under Section 18. They are two distinct classes of Cases - a classification which has reasonable relationship with the object sought to be achieved and therefore falls out. side the rule laid down by this Court in Anwar All Sarkar's case, (A.I.R. 1962 S 0 75).

Having disposed of the argument under Article 14 of the Constitution, their Lordships observed as follows (in Para. 12):

From the copies of the reports made in these cases to the Magistrate by the police— made available to us at the hearing of these appeals—it is clear that they disclose offences Under Section 3 against the respondents. There, fore, the question is whether the Magistrate can choose to ignore the cognizable offence complained of and merely have recourse to Section 18 and thus deprive the patties proceeded against of the benefit of a regular trial as well as the right of appeal in the event of their conviction. Bearing in the mind the purpose of these provisions as well as the scheme of the Act and on a harmonious construction of the various provisions in the Act, we are of the opinion that in cases like those before us the Magistrate who is also a Court as provided in Section 22 must at the first instance proceed against the persons complained against under the penal provisions in Section 3 or 7 as the case may be, and only after the disposal of those oases take action Under Section 18 if there is occasion for it. Under Section 190 (l) (B) of the Criminal P.C., the Magistrate is bound to take cognizance of any cognizable offense brought to his notice. The words ''may take cognizance' in the context mean 'must take cognizance.' He has no discretion in the matter, otherwise that Section will be violative of Article 14.

8. It will thus be seen that in the Supreme Court decision cited above, the Magistrate did not at all take cognizance of an offence Under Section 3 of the particular Act and resorted to Section 18. Since Section 18 provides for two classes of oases, on the particular facts of that cases it will come under the first type of case described by the Supreme Court in the above decision. In that view of the matter, the Supreme Court agreed with the High Court in quashing the notice as it appeared that the Magistrate ignored the provisions of Section 190 (1) (b) to take cognizance of the offence on receipt of the police report. In that context, the Supreme Court held that Section 190 (1) (b) under the circumstances of that cage gave no option to the Magistrate to avoid taking cognizance as was done in that case. .Reference to Article 11 of the Constitution in that connection is only to indicate that 8. 190 (1) (b) could not be interpreted as giving option to the Magistrate in picking and choosing cases for taking cognizance even when the reports disclose an offence. It is particularly in those circumstances that the Supreme Court held that ''may take cognizance' in the context means 'must take cognizance.'

9. In the instant case, there is no question of the Magistrate having refused to take cognizance of the offence disclosed in the original complaint lodged before the Court. Section 190 (1) (b) does not override the provisions of S, 156 (3) of the Criminal P.C. Even upon receiving a complaint of an offence, the learned Magistrate, who is empowered Under Section 190 to take cognizance, can defer doing so and refer the complaint Under Section 156 (3) for investigation by the police. That is exactly what the learned Magistrate had done in this case and no legal objection can be taken to the procedure adopted by him. The argument of the learned Counsel that the learned Judicial Magistrate ought to have himself taken cognizance of the offence and should not have referred this cognizable case to the police for investigation is without substance. There is, therefore, nothing wrong in the procedure adopted by the learned Magistrate in ultimately taking cognizance of the offence on receipt of the chargesheet after completion of the investigation of the written complaint first laid in Court and later registered as a first information report in the case. The decision in : 1968CriLJ82 (supra) cited by the learned Counsel does not come to his aid in this case, the facts of which squarely fall within the law laid down in that behalf by the Supreme Court in A.I.R. 1961 SC 986 (Gopal Das Sindhi v. State of Assam).

10. In the result, the petition fails and is dismissed.

D.M. Sen, J.

11. I agree.


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