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State of Maharashtra Vs. Tanaji Bajirao Bhosale and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 573 of 1977
Judge
Reported in1980MhLJ49
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 190(1) and 191; Indian Penal Code (IPC) - Sections 34, 341, 431 and 447
AppellantState of Maharashtra
RespondentTanaji Bajirao Bhosale and ors.
Appellant AdvocateB.S. Deshmukh, P.P.
Respondent AdvocateV.R. Bhonsale, Adv. for respondents No. 1 to 3
DispositionAppeal allowed
Excerpt:
.....by magistrate - sections 34 and 431 of indian penal code, 1860 and sections 190 (1) and 191 of criminal procedure code, 1973 - appellant convicted under sections 431 and 34 by trial court- scope of sections 190 and 191 discussed - section 190 says magistrate of first class and second class may take cognizance of any offence upon receiving complaint of facts or upon police report or upon information received from any person other than police officer or upon his own knowledge regarding committal of offence - cognizance taken by magistrate under section 190 should be in accordance with provisions of section 191. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused..........as a warrant case the learned magistrate followed the procedure prescribed in chapter 191 of the criminal procedure code. in their statements the accused admitted having received the relevant police papers and when the charge was read over and explained to them they pleaded not guilty. these statements of the accused were recorded on the very day i.e. on september 15, 1975. as a fresh charge was framed against the accused the learned magistrate recorded the evidence of the complainant again. the evidence of his witnesses was also recorded thereafter. after the prosecution evidence was over all the accused were duly examined under section 313 of the criminal procedure code.2. on a consideration of the evidence the learned magistrate found the accused guilty under section 431 read with.....
Judgment:

P.S. Shah, J.:

1. This appeal raises a question of law regarding the two scopes of section 190 and 191 of the Criminal Procedure Code. The question arises on the following facts which are in dispute :

On January 10, 1974, the Judicial Magistrate, First Class, Phaitan received a charge-sheet submitted by the police against the respondents. In the charge-sheet it was mentioned that between April 23, 1973, and June 12, 1973 the accused demolished the public road of 420 feet in length and 15 to 20 feet in breadth which was passing by the said of complainant's land bearing Survey No. 104 and that portion was filled up by the accused with earth. With the result, the public road which existed for the last 50 years was converted so that it became a part of the respondent's land and further put obstructions of stones on both the sides in order to prevent persons using the road. It is almost stated that the accused thus obstructed the complainant from going to his land from April 23, 1973, and thereby committed offences punishable under sections 447 & 341 read with sections 34 of the Indian Penal Code. The same day on which the charge-sheet was received, the learned Magistrate issued process under sections 447 and 341 read with section 34 of the Indian Penal Code against the accused. The learned Magistrate commenced to try the case in a summary way and followed the procedure for summary trials. Accordingly, the learned Magistrate framed two charges under section 441 read with section 34 and 341 read with section 34 of the Indian Penal Code. The particulars of the aforesaid charges were then read over and explained to the accused and the plea of the accused was recorded on January 16, 1975. All the accused pleaded not guilty. On April 1, 1975, the evidence of the complainant, Jayaram Subhedar Kadam, who had lodged the complaint at the police station was recorded. Thereafter, on September 15, 1975, the learned Magistrate framed a charge under section 431 read with section 34 of the Indian Penal Code against the accused. In the charge it was alleged that the accused has destroyed the public road in question merging it in the land of the accused. The offence punishable under section 431 of the Indian Penal Code being triable as a warrant case the learned Magistrate followed the procedure prescribed in Chapter 191 of the Criminal Procedure Code. In their statements the accused admitted having received the relevant police papers and when the charge was read over and explained to them they pleaded not guilty. These statements of the accused were recorded on the very day i.e. on September 15, 1975. As a fresh charge was framed against the accused the learned Magistrate recorded the evidence of the complainant again. The evidence of his witnesses was also recorded thereafter. After the prosecution evidence was over all the accused were duly examined under section 313 of the Criminal Procedure Code.

2. On a consideration of the evidence the learned Magistrate found the accused guilty under section 431 read with section 34 of the Indian Penal Code and sentenced one of each them to suffer rigorous imprisonment for six month and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for two months.

3. This conviction was challenged by the accused in appeal preferred by them in the Sessions Court at Satara. At the hearing of the appeal before the learned Additional Sessions Judge, Satara, it was urged on behalf of the accused that having regard to the fact that a new charge under section 431 read with section 34 of the Indian Penal Code was framed in the midst of a trial and the earlier charges framed against the accused under section 441 read with sections 34 and 341 read with section 34 of the Indian Penal Code having been abandoned, they were impliedly acquitted of those charges and the acquittal on those charges could not be reopened in appeal. It was then contended that having regard to the fact that the original charge-sheets submitted by the police was for offences under sections 447 and 341 read with section 34 of the Indian Penal Code and in trial an altogether new charge under section 431 read with section 34 of the Indian Penal Code having been framed, the cognizance taken by the learned Magistrate in respect of the later charge would be under section 190(1)(c) of the Criminal Procedure Code and as the Magistrate failed to follow the mandatory provision of section 191 of the Criminal Procedure Code, the trial was vitiated and the accused were entitled to acquittal. Relying on a decision of the Madras High Court in Rajaratnam Pillai v. Emperor, A.I.R. 1936 341 the learned Additional Sessions Judge held that when the Magistrate has taken cognizance of a new offence under the provisions of section 190(1)(c) it was his bounden duty to afford the accused an opportunity to say whether he should be tried or not to be tried by the same Magistrate. The learned Judge held that the failure of the Magistrate to give an opportunity to the accused to say whether they should by tried by the same Magistrate or not, vitiated the entire trial and the order of conviction was required to be set aside.

4. In order to appreciate the question involved in this case it would be relevant to consider the provisions of section 190 of the Criminal Procedure Code. Section 190 reads as under :

'190. Cognizance of offences by Magistrates:---

(1) Subject to the provision s 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 offences;

(b) upon a police report of such facts;

(c) upon information received from any person other then a police officer or upon his own knowledge, that such offence has been committed.'

5. This provision envisages three different categories of cases where the Magistrate is entitled to take cognizance of any offence. The first category of cases is whether he receives a complaint of facts constituting an offence; secondly, upon a police report of such facts and third and last category confers jurisdiction of the Magistrate to take cognizance of any offence upon information received from a person other than the police officer or upon his own knowledge that such offence has been committed. From this provision it would be apparent that Clause (c) is attracted to cases where Clauses (a) and (b) did not apply. In other words where a complaint has been filed directly to the Court or a charge-sheet has been submitted by the police it cannot be a case where the Court has taken cognizance of offence under Clause (c). It would be apparent that the essential difference between a complaint and information is that a Magistrate acts on a complaint because the complainant has asked him to act, but a Magistrate acts on information on his own initiative. The question as to whether the cognizance has been taken under Clause (a) or (b) of sub-section (1) of section 190 or Clause (c) of sub-section (1) of section 190 assumes significance because under section 191 if a Magistrate takes cognizance of an offence under Clause (c) of sub-section (1) of section 190, before any evidence is taken, he is bound to inform the accused that he is entitled to have his case enquired into or tried by another Magistrate. Section 191 further provides that if the accused or any of the accused, it there by more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf. The wording of section 191 is mandatory and the provision applies to cases covered by sub-section (1) of section 190.

6. It was urged by Mrs. Bhonsale, the learned Counsel appearing for the accused, that it is clear from the record of the case the Magistrate has clearly taken cognizance of the offence under Clause (c) of sub-section (1) of section 190. In support of her contention she pointed out that the police had specifically submitted the charge-sheet under sections 447-341 read with section 34 of the Indian Penal Code. Even the learned Magistrate had proceeded to frame charges for the aforesaid offences and it was only in the midst of the trial after the evidence of the complainant was recorded that the learned magistrate chose to frame an altogether new charge under section 431 read with section 34 of the Indian Penal Code. She submitted that this was clearly a case covered by Clause (c) of sub-section (1) of section 190 because the cognizance admittedly was not taken on any complaint by the complainant and although there was a police report it was for an entirely different offence and not the one for which the accused had been held guilty by the learned Magistrate. She submitted that under the circumstances the failure of the Magistrate to follow the mandatory provisions of section 191 of the Criminal Procedure Code had vitiated the trial and the accused were entitled to acquittal.

7. Mr. Deshmukh on the other hand submitted that the provisions of section 191 were not attracted in this case not only because the case was not covered by section 190(1)(c) but no prejudice has been shown to have been caused to the accused in this case. In this connection he relied on section 216 of the Criminal Procedure Code. He submitted that the Court had the power to alter the charge at any time before the judgment is pronounced and unless it has necessarily been shown that such alteration has prejudiced the accused in his defence no grievance could be made against the conviction. He also relied on the provisions of sections 464 and 465 of the Criminal Procedure Code and submitted that the non-observance of section 191 is a mere irregularity and could not vitiate the trial and conviction unless prejudice had been shown to have been caused to the accused. I find that the charge-sheet submitted by the police states the facts on the basis of which, according to the police, the accused had committed offences under sections 447 and 341 read with section 34 of the Indian Penal Code. The new charge framed by the learned Magistrate under section 431 Indian Penal Code is based on the same facts as constitution an offence under section 341 read with section 34 of the Indian Penal Code. The gist of the complainant against the accused made in the charge-sheet is that the public road was demolished. The controversy is whether the learned Magistrate took the cognizance of the offence under section 431 of the Indian Penal Code under Clause (a) or (c) of sub-section (1) of section 190 of Criminal Procedure Code. Cognizance under Clause (a) of sub-section (1) of section 190 Criminal Procedure Code is 'upon receiving a complaint of facts which constitute the offence.'

8. It would at once, be clear that what is relevant to be considered is the complaint of facts which constitute the offence. Merely because a wrong section is quoted in the charge-sheet and the Magistrate frames another charge based on the facts narrated in the charge-sheet it does not become a case falling under Clause (c) of sub-section (1) of section 190 of the Criminal Procedure Code. In the case of police report the Magistrate takes cognizance upon the report of the facts which constitute an offence. What is important, therefore, is the facts which go to make an offence and not the ultimate conclusion by the police officer regarding the exact offence, based on such facts. Merely because the police in the charge-sheet referred to a wrong section of the Indian Penal Code or do not refer to the correct section or do not mention some of the sections of the Indian Penal Code it does not cease to be a case under Clause (b) of sub-section (1) of section 190 of the Criminal Procedure Code, no sooner the Magistrate applies a different but proper section and frames a charge accordingly. It is well settled that in cases covered by Clauses (a) and (b) of sub-section (1) of section 190 of the Criminal Procedure Code the Magistrate takes cognizance of facts which constitute the offence. The Magistrate would not be competent to take cognizance on the basis of the police report which merely mentions the sections of the Indian Penal Code of which the accused are said to be guilty. It is equally clear that the mention by the police or the complainant regarding the availability of a particular provision to a particular set of facts does not conclude the matter because the cognizance is taken by the Magistrate of facts which constitute the particular offence and not the particular section mentioned. The emphasis is on the facts and not on the particular section referred to in the charge-sheet. In this case what we find is that the learned Magistrate altered the charge after the evidence of the complainant was recorded. The charge is based entirely on the same facts alleged by the complainant or the police it is not a case where the Magistrate gets some information from any person. Other than the police officer or upon his own knowledge that he was framed the new charge in this case. The facts constituting the offence are the same. It is only a case where the Magistrate thought that the appropriate section to be applied to the facts of the case would be section 431 read with section 34 of Indian Penal Code and not section 447-341 read with section 34 of the Indian Penal Code. This does not take out the case from Clause (b) of sub-section (1) of section 190 of the Criminal Procedure Code. It is obvious that the provisions of section 191 of the Criminal Procedure Code were attracted only when the Magistrate takes cognizance of an offence in exercise of the powers conferred on them under Clause (c) of sub-section (1) of section 190 of the Criminal Procedure Code. In my view the learned Magistrate had clearly fallen into an error in holding that by reasons of the altered charge the case is taken out of the purview of section 190(1)(b) and becomes a case falling under section 190(1)(c) of the Criminal Procedure Code. The learned Magistrate in this case has clearly acted under section 216 of the Criminal Procedure Code which empowers to alter or add to the charge before the judgment is pronounced. There is no question of prejudices in this case because after the charge was framed the learned Magistrate examined all the witnesses including the complainant whose evidences was recorded earlier and the accused had full opportunity to cross-examine them.

9. Now, it would be worthwhile to look into some decided cases on the interpretation of sections 190 and 191 of the Criminal Procedure Code. In Mehrab v. Emperor, in 26 Criminal Law Journal, 181, the Full Bench of Sind Judicial Commissioner's Court was required to be considered the effect and applicability of provisions of Clauses (b) and (c) of section 190(1) of the Criminal Procedure Code. In that case in the report submitted by the police under section 173 of the Old Criminal Procedure Code the parties concerned in the offence were not mentioned. The question was whether the action of the Magistrate in proceeding against the persons other that those mentioned in the polices report could fall under Clauses (b) or (c) of section 190(1) of the Criminal Procedure Code of the Old Code which provisions remains unchanged under the new Code. The Court held that under section 190 of the Criminal Procedure Code the Magistrate takes cognizance of the offence and not of the offender. The fact that the polices in a report submitted under section 173 of the Criminal Procedure Code have not mentioned all the parties concerned in an offence which has been set up for inquiry, does not debar a Magistrate from taking action against persons other that those mentioned in the polices report. Once the Magistrate has taken cognizance of an offence and proceeded to deal with the evidence it is his duty to see that justice was done with regard to any other person that may be suspected of being, concerned in the offence. The Court held that the Magistrate's action in such cases would fall under section 190(b) and not under 190(c) of the Criminal Procedure Code.

10. In re Shivlingappa Bhagappa, 31 Criminal Law Journal 1142, a Division Bench of this Court, consisting of Mr. Justice Mirza and Mr. Justice Broomfield, held that the Magistrate cannot take cognizance of an offence under section 190(1)(b) of the Criminal Procedure Code upon a police charge-sheet which does not contain the facts which constitute the offence. A complaint equally with the report of a Police Officer must contain the facts which constitute the offence, and a charge-sheet which does not contain such facts cannot, therefore, be treated as a valid complaint within section 190(1)(a) of the Criminal Procedure Code.

11. Thus, the applicability of Clauses (a) or (b) of section 190(1) of the Criminal Procedure Code to the facts of a particular case depends on the receipt of the facts which constitute the offence either in a complaint or in a police report. It is immaterial whether a particular penal section contravened is mentioned or not. It is also immaterial whether a wrong section has been stated. It is for the Court to consider the facts alleged and then find out the correct offence involved and frame a charge consistent thereto. In the present case what we find is that the facts constituting the offence as mentioned in the charge-sheet may constitute various offences and which prima facie would include an offence under section 341 of the Indian Penal Code. Thus, in this case it would be permissible for the Court to take prima facie view of the facts constituting mischief is doing some acts which renders the alleged public road demolished. Merely because the charge-sheet did not refer to the said section 341 of the Indian Penal Code or he had other section viz. sections 447 and 341 of Indian Penal Code were mentioned in charge-sheet or that initially the charges under sections 447 and 341 of the Indian Penal Code were framed against the accused cannot change the basic character of the facts which constitute the offence nor could it be said that the Court had taken cognizance of the offence under Clause (c) of section 190(1) of the Criminal Procedure Code.

12. In Nagendra Nath Chakravarti, Indian Law Reports 51 Calcutta 402, it was held that it is a requisite of fundamental importance that the police report must state facts which constitute the offence. The emphasis is thus not on the reference of a particular section which amounts to an offence but to the facts which constitute an offence. Consequently, framing of a charge for offence under as different section that the one mentioned in the charge-sheet based on the same set of facts cannot attract the applicability of Clause (c) of section 190(1) of the Criminal Procedure Code but the cognizance taken by the Court is still a cognizance on a police report on clause (b) of section 190(1) of the Criminal Penal Code.

13. In Dedar Buksh v. Syamapada Das Malakar , ILR Cal 1013, it had been held that a Magistrate taking cognizance of an offences upon a complaint against certain specified persons, is competent to proceed against others not named therein but who are disclosed by the prosecution evidence, taken on a preliminary inquiry under section 202 of the Criminal Procedure Code, to have been concerned in the offence. In such a case the Magistrate must be said to have taken cognizance against the persons not named in the complaint under Clause (a) and not Clause (c) of section 190(1) of the Criminal Procedure Code.

14. In Baldeo Prasad v. Emperor : AIR1933Pat297 , the Court held that the power of framing charges comes into operation after the initial requisite of taking cognizance under section 190(1) of the Criminal Procedure Code and this power is not restricted to the offender or the specific sections, if any, mentioned by the prosecutor. A complaint as defined in section 4(h) need not in fact specify any offender or even the section of the new law which makes an act or omission punishable; and cognizance is taken under section 190(1)(a) of the Criminal Procedure Code upon receiving a complaint of facts which constitute an offence, while charges are framed on the evidence before the trial court. The evidence may disclose offences other than those originally mentioned or implied, but cognizance is not taken of such new offences under Clause (c), sub-section (1) of section 190 of the Criminal Procedure Code for the double reason that the stage for the application the sub-section is long past and the clause can have no application to the evidence produced in the case. In this view of the matter the contention that the failure to comply with section 191 of the Criminal Procedure Code rendered the proceeding void and the conviction illegal was rejected.

15. Reliance was, however, placed on the decision of a Single Judge of the Madras High Court in Rajaratnam Pillai v. Emperor, A.I.R. 1936, page 341. In that case the accused had been prosecuted by the police on a charge-sheet in which it was alleged that he had interfered with a station master in the exercise of his duty and in the course of that interference had slapped him on his cheek. The charge-sheet specifically referred to his offence as falling simply within section 121, Railways Act 9 of 1890, the maximum punishment for which is a fine of Rs. 100/-. The second class Magistrate on receiving this charge-sheet took cognizance of the case as involving an offence under that section of the Railways Act, and as he was Bound to do, he proceeded with the trial of the case under the procedure laid down for the trial of summons cases. After he had taken the evidence of the prosecution in full, it occurred to him that the evidence also established an offence under section 323 of the Indian Penal Code, for which offence the maximum punishment awardable was imprisonment for one year. The trial of the offence under 323 of the Indian Penal Code naturally attracted the procedure laid down for trial of warrant cases. The Magistrate converted the proceedings before him from a summons case into a warrant case and framed a charge against the accused for an offence under section 323 Indian Penal Code and an offence under section 121 of the Railways Act. One of the contentions raised was that under section 190 of the Criminal Procedure Code it was not upon the report lodged but upon the knowledge of the Magistrate himself gained from the evidence that the Magistrate had come to the conclusion that an offence under section 323 of the Indian Penal Code must have been committed and in that case the Magistrate to his cognizance of such an offence under section 190(c) of the Criminal Procedure Code, then it was his bound on duty to afford the accused an opportunity to say whether he should be tried or not to be tried by that Magistrate. Although, section 191 of Criminal Procedure Code was not specifically referred, it is obvious that the provisions of section 191 of the Criminal Procedure Code were present to in the mind of the learned Judge of the High Court and as he was of the view that alteration of the charge by reason of facts disclosed in the evidence led before him attracted the operation of section 190(1)(c) of the Criminal Procedure Code, he held that the mandatory provisions of section 191 of Criminal Procedure Code had to be followed. Undoubtedly, this decision supports the contention urged by the learned Counsel for the accused. However, having regard to the scheme of section 190 Criminal Procedure Code as disclosed by Clauses (a), (b) and (c), it is not possible to agree with the view taken by the Madras High Court in that case. In my view, the scheme of Clause (c) of section 190(1) Criminal Procedure Code clearly envisages a different category of cases in which the Magistrate can take cognizance. Clauses (a) and (b) of section 190(1) of the Criminal Procedure Code relate to the complaint and police report. In both the cases what is reported to the Magistrate is the facts constituting an offence. It is immaterial whether a particular provisions of law which is attracted on the particular set of facts communicated to the Magistrate is not mentioned but some other provision of law I mentioned. The operation of Clause (c) of section 190(1) of the Criminal Procedure Code is thus independent of Clauses (a) and (b) of section 190(1) Criminal Procedure Code. On the facts of Rajaratnam's case, which have been set out above, it is difficult to see how the provisions of section 190(1)(c) of the Criminal Procedure Code could be attracted. It appears from the facts narrated that the charge-sheet clearly mentioned that the accused had slapped the complainant on his cheek, which might amount to an offence under section 323 of the Indian Penal Code. With respect, therefore, the learned Single Judge of the Madras High Court could not have treated the case as one falling under Clause (c). It may be mentioned that the same High Court In re K.V. Venkata Ramanier, 39 CriLJ 958, expressed disapproved of the view taken in Rajaratnam's case in the following words :

'With all respect to King, J., I am unable to follow the reasoning In re Rajaratnam's Pillai (1). Section 190(c), Criminal Procedure Code, is concerned with extra-Judicial information, knowledge or suspicion and it has nothing (in my opinion) to do with knowledge gathered by a Magistrate in open Court from the evidence of the witnesses given during a trial. If a Magistrate begins a trial as a summons case and then finds that an offence triable only under warrant case procedure has been committed, he is, I think, bound to apply warrant case procedure then forward and he is not in any way disqualified from proceeding with the trial.'

16. If regard be had to the facts alleged in the charge-sheet, it is obvious that the Magistrate while framing the new charge under section 431 of the Indian Penal Code took cognizance only under Clause (b) and not under Clause (c). On the same set of facts stated in the charge-sheet the learned Magistrate seems to have felt that an offence under section 431 of the Indian Penal Code and not under sections 447 and 341 of the Indian Penal Code had taken place. It would be still a case where cognizance is taken under Clause (b) and the provisions of section 191 would not apply. Consequently, the learned Additional Sessions Judge has fallen into an error in holding that the trial of the accused under section 441 read with section 34 of the Indian Penal Code was void and illegal. As the learned Judge had not considered the merits of the case, it would be necessary to set aside the order of the acquittal passed by the learned Additional Sessions judge and remand the matter back to the Sessions Court for disposal on merits according to law.

17. In the result, the appeal is allowed. The impugned order dated 31st March, 1977, passed by the Additional Sessions Judge, Satara, acquitting the accused is quashed and set aside and the matter is remanded back to the Sessions Court, Satara, for disposal according to law.


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