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Marjit Kumar Singh Vs. Sudhamoy Bhattacharyya - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMarjit Kumar Singh
RespondentSudhamoy Bhattacharyya
Excerpt:
.....in section 200 the present tense is again used namely 'a magistrate taking cognizance of an offence on complaint' in a case where the magistrate is going to continue to deal with the case himself. on the other hand in section 192 where a magistrate is performing an act by which he divests himself of seisin of the case 'he is described as a magistrate who has taken cognizance'.it seems, therefore, to me from the fact that the past tense is used in this and the present tense is used where the magistrate is continuing to deal with the offence himself that the taking of cognizance is clearly a continuous act. the words 'taking cognizance of an offence' as used in section 200, connote in a concise form the receiving of the complaint as well as competency of the magistrate to receive it..........in section 200 the present tense is again used namely 'a magistrate taking cognizance of an offence on complaint' in a case where the magistrate is going to continue to deal with the case himself. on the other hand in section 192 where a magistrate is performing an act by which he divests himself of seisin of the case 'he is described as a magistrate who has taken cognizance'. it seems, therefore, to me from the fact that the past tense is used in this and the present tense is used where the magistrate is continuing to deal with the offence himself that the taking of cognizance is clearly a continuous act.5. the word 'cognizance' is not defined in the code. its dictionary meaning is notice judicial or private; it also conveys the sense of jurisdiction. 'taking cognizance'.....
Judgment:

Lakshmi Narain, C.J.

1. On a complaint filed by Sudhamoy Bhattacharyya against Marjit Kumar Singh under Section 406/420, I.P.C. on 23.12.50, Shri C. Singh, B.L. Magistrate 1st Class, Sadar, Agartala, after taking complainant's statement issued process against the accused by way of non-bailable warrant under Section 406, I.P.C. Thereafter the accused applied to the Magistrate to drop the proceedings against him mainly on the ground that the Magistrate was not competent to take cognizance of the case in the absence of a regular complaint as required by law. This prayer was rejected on 24.5.51. On a motion by the accused the learned Sessions Judge has forwarded the case to this Court with recommendation for quashing the proceedings considering that the complaint is not a regular one as contemplated by law on which cognizance could be taken. He has expressed his views as follows:

It is considered that the Magistrate was not entitled to take cognizance of the complaint which was not a valid complaint, under Section 190(1)(a), Criminal P.C. in view of the fact that there was a total absence of facts constituting the offence in the written complaint. It is further considered that the defect could not be cured by the examination of the complainant on oath, as the examination of the complainant is under Section 200, Cr.P.C. which presupposes a valid complaint under Section 190 (1), Cr.P.C.

It is further considered that the information revealed enquring the examination of the complainant could not be regarded as Information under Section 190(1)(c), Criminal P.C. as the examination of the complainant under Section 200, Cr.P.C. is distinct from the complaint Itself.

It is further considered that the defect could not be cured by Section 529, Cr.P.C. which has no application in such a case or Section 537, Cr.P.C. which refers to errors, omissions or irregularity in the complaint and not to any illegality. The total absence of facts in the written complaint, it is submitted, cannot be regarded as an irregularity curable under Section 537, Cr.P.C.

2. The present complaint is on a printed form in vogue in the State for the last 40 or 50 years. It has 6 columns, each indicating its requirement. The different columns for time of occurrence, name of the complainant, name and address of the witnesses, name of the accused, complaint or charge and remarks are all duly filled up. In column No. 5 Re. complaint or charge only Sections of the Indian Penal Code, i.e. 406 & 420, I.P.C. are mentioned while in the column of remarks it is prayed that a non-bailable warrant may be issued against the accused and that the list of articles under question is attached on the next page along with. It is dated 27.12.50. Immediately after receiving the above complaint the learned Magistrate proceeded to examine the complainant and after examining him issued process against the accused as stated above. The complaint as it stands, therefore, contains most of the necessary facts, viz., time of occurrence, name of the complainant and the accused, name and address of the witnesses, the offence charged with and the property with respect to which the offence has been committed. What appears to be wanting is a clear allegation of facts constituting the offence, which is absent. It cannot be said, therefore, that there is total absence of facts constituting the offence in the complaint and that it is not a valid complaint. On the other hand, some detail is missing which may be called important and that can be ascertained or elucidated on examination under Section 200, Cr.P.C.

3. The complaint, as it is, meets with all the requirements as defined in Section 4(h), Cr.p.C. The definition of a complaint as given therein does not require any statement of facts beyond an allegation that a certain person has committed an offence. But when this definition is read into Section 190(a) it becomes clear that before a Magistrate takes cognizance, he must have before him an allegation of facts constituting the offence. The criterion of a valid complaint is Whether there is sufficient material in it on which the Magistrate can apply his mind whether the facts so stated therein constitute an offence or not. If some details are missing that deficiency is made up by the statement of the complainant.

4. A complaint need not contain details. On receipt of a complaint the Magistrate taking cognizance of the offence shall at once examine the complainant on oath. This is a mandatory provision of Section 200, Cr.P.C. The words 'taking cognizance' in this Section do not mean 'after taking cognizance' as argued by the learned Counsel of the petitioner. They in my opinion, connote 'in the course of taking cognizance'. It is a present continuous act. Blacker J. of the Lahore High Court has observed thus in-Arjan Singh v. Emperor AIR 1939 Lah 479 at p. 485 (A).

It is, in my opinion, an error to regard the taking of cognizance as single momentary act which can only be done once with regard to a particular offence. A study of the relevant Sections indicates, in my opinion, that the taking of cognizance is a continuous act which commences, as soon as the Magistrate applies his mind to the case and only ends when the Magistrate no longer has seisin of it. In Section 191 of the Code, for instance, in a case where a Magistrate is clearly going to continue to take cognizance of a case the present tense is used, the words being 'when a Magistrate takes cognizance of an offence'. Similarly, in Section 200 the present tense is again used namely 'a Magistrate taking cognizance of an offence on complaint' in a case where the Magistrate is going to continue to deal with the case himself. On the other hand in Section 192 where a Magistrate is performing an act by which he divests himself of seisin of the case 'he is described as a Magistrate who has taken cognizance'. It seems, therefore, to me from the fact that the past tense is used in this and the present tense is used where the Magistrate is continuing to deal with the offence himself that the taking of cognizance is clearly a continuous act.

5. The word 'cognizance' is not defined in the Code. Its dictionary meaning is notice judicial or private; it also conveys the sense of jurisdiction. 'Taking cognizance' constitutes a judicial act.

Taking cognizance occurs as soon as the Magistrate applies his mind to the suspected commission of an offence'.-Emperor v. Sourindra Mohan 37 Cal 412 (B).

It indicates the point when a Magistrate first takes judicial notice of an offence and as such it is taken of a case and not of person or persons. The words 'taking cognizance of an offence' as used in Section 200, connote in a concise form the receiving of the complaint as well as competency of the Magistrate to receive it and the purpose for which the complaint is made.' (Code of Criminal Procedure by Chitaley and Rao at page 1235/ 4th Edition.)

6. One of the objects of an examination under Section 200 is to ascertain the facts constituting the offence, where they are not given in the complaint or to correct or elucidate doubtful points there. As per Spencer J. in-Arunachalam, In re AIR 1924 Mad 323 (C)

The sworn statement and the written complaint of a complainant may be read together for the purpose of ascertaining what the nature of the complaint in any particular case is.

7. A complainant is not to be driven out of Court if he has failed to disclose full facts in his written, complaint. Section 200 of the Code is there for the Magistrate to examine the complaint and satisfy himself whether the facts so disclosed, there are sufficient to take cognizance of the matter. A complaint may be made orally or in writing. If in writing it should allege material facts, but not necessarily all the facts. The object of the mandatory provision of Section 200 requiring, the Magistrate to examine the complainant at once after receiving the complaint is that facts, constituting the offence may be ascertained, elucidated or analysed which are not given in the written statement. Both complaint and examination of the complainant Under Section 200 make the thing complete.

8. I am of opinion, therefore, that the complaint under question contains facts and material sufficient for the Magistrate to start cognizance of the offence mentioned therein and to ascertain further fact, required to constitute the offence by way of examination Under Section 200 Cr.P.C.

9. Any error, omission or irregularity in a complaint is curable Under Section 537, Cr.P.C. and no finding, sentence order passed by a Court of competent jurisdiction is to be altered on appeal or revision on that account Reliance is placed on Lachmi Singh v. Emperor AIR 1924 Pat 691 (D) in which it is held.

where the complaint was examined on oath by the Magistrate when cognizance was taken of the offence, absence of a complaint in writing would only amount to an error, omission or irregularity as contemplated by Section 537 of the Code (P. 692, C 2)

Again Section 537 may be taken to cover any irregularity in the widest sense of the term. In the present case some facts of the case constituting the offence have not been narrated in the complaint which are made up in the examination of the complaint Under Section 200.

10. A Court of law is meant for doing justice to a case and not to overthrow the complaint on frivolous and technical ground. If there is an error, omission or irregularity in the complaint and not illegality of a gross nature that is curable under Section 537 of the Code. The above ciew is supported by a Full Bench ruling of the Allahabad High Court reported in – Kapoor Chand v. Suraj Prosad AIR 1933 All 264 (F.B) (E) that

Under Section 537 there is no distinction between illegality and irregularity though only the word 'irregularity' is found in the section (P 268 C I.)

11. The sole criterion given by Section 537 is whe ther the accused person has been prejudiced or not. The object of procedure is to enable the Court to do justice, but if, in spite of even a total disregard of the rules of procedure, justice has been done done. There would exist no necessity for setting aside the final order which is just and correct simply because the procedure adopted was wrong. - N.A. Subramania Iyer v. King Emperor 25 Mad 61 (PC) (F), Expl; - Abdul Rahman v. Emperor AIR 1927 PC 44 (G) Ref.

12. There is no radical or incurable irregularity in the complaint or a complete disregard of the law and procedure or a manifest injustice had been accrued which has to be cured. Even if there is any such omission as there is in the present complaint, it is covered by Section 537.

13. In this view of the matter I refuse to in terfere with the order passed by the learned Magistrate. This reference is, therefore, not accepted.


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