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Abdul Khadar Mohammad Gous Attigeri Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCrl. R.P. Nos. 705 and 706 of 1982
Judge
Reported inILR1985KAR175
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 190 and 200
AppellantAbdul Khadar Mohammad Gous Attigeri
RespondentState
Appellant AdvocateF.c Patil and ;D. Dattaraya Bhat, Advs.
Respondent AdvocateM.V. Devaraju, Adv. for R. 1, ;R.H. Chandan gouder and ;Kulkarni, Advs. for Respondent 2
DispositionPetition rejected
Excerpt:
.....decides to probe into the veracity of facts in complaint cognizance is taken -- recording of sworn statement of complainant is taking cognizance -- not necessary that in addition the magistrate should also state that he has taken cognizance.;if section 190 of the code enables magistrate to act on a private complaint it is section 200 of the code which provides as to how he should, on receiving a complaint proceed in the matter, if he wants to probe into the veracity of the facts contained in the complaint....the moment he decides to probe he can be said to have taken cognizance of the offence(s) alleged.....lf a complaint is filed before the magistrate and he proceeds in accordance with section 200 and examines, upon oath the complainant and witnesses, if any present, he can be..........complainant sri a.p.p. present for statement of complainant,complainant is present. his sworn statement is recorded under section 200 cr. p.c. from the facts sworn by the complainant offence under sections 323, 504, 506 i.p.c. are made out against them.cognizance is taken. register case in register no. iii. summon on accused to appear on 25-9-1982.sd/-munsiff & jmfc,savanur.'7. the order impugned in cr. r.p. no.756/82 reads thus :'31-7-1982. called on today.complainant by n.s.h. for sworn statement.complainant present. her sworn statement is recorded. perused the complaint and also the sworn statement of the complainant. at this stage she has made out a prima facie case against all the accused. registered the case c. c. register and issue summons to accused and they are.....
Judgment:
ORDER

Venkatesh, J.

1. In Cr. R.P. No.705/82 the Petitioners, who are accused in C.C. No.616 of 1982 on the file of the Munsiff and J.M.F.C., Savanur, are challenging the order dated 15-9-82 of that Court issuing summons for their appearance in theCourt,

2. In Cr. R.P. No. 706/82 the Petitioners, who are accused in C.C. No. 230 of 1982 on the file of the Additional Munsiff, Jamkhandi, are similarly challenging the order dated 31-7-1982 of that Court issuing summons to them to appear before that Court.

3. Since common questions of law and facts are involved in these Petitions they were clubbed and heard together.

4. The learned Counsel for the Petitioners and the learned State Public Prosecutor, who was requested to offer his views on behalf of the State, were heard in the matter.

5. The main contention of the Petitioners in these two cases is that in the matter of taking cognizance of the offences and issuing process against them (the Petitioners) the Magistrates had not followed the procedure laid down in the relevant provisions contained in Chapter XV of the Code of Criminal Procedure, 1973 (the Code).

6. The order challenged in Cr. R.P.No. 705/82 reads as follows :

'15-9-1982: Complainant Sri A.P.P. present for statement of complainant,

Complainant is present. His sworn statement is recorded under Section 200 Cr. P.C. From the facts sworn by the complainant offence under Sections 323, 504, 506 I.P.C. are made out against them.

Cognizance is taken. Register case in Register No. III. Summon on accused to appear on 25-9-1982.

Sd/-

Munsiff & JMFC,

Savanur.'

7. The order impugned in Cr. R.P. No.756/82 reads thus :

'31-7-1982. Called on today.

Complainant by N.S.H. for sworn statement.

Complainant present. Her sworn statement is recorded. Perused the complaint and also the sworn statement of the complainant. At this stage she has made out a prima facie case against all the accused. Registered the case C. C. register and issue summons to accused and they are directed to appear on 2-9-1982.

Sd/- A. S. Patil,

Additional J. M.F.C.

Jamkhandi. 31-7-82.'

8. The complaint in the first case (Cr. R.P. 705/82) is that the Court below had taken cognizance subsequent to the recording of the sworn statement of the complainant, and, on the other hand, he should have proceeded to examine, on oath, the complainant only after taking cognizance and that not having been done the entire proceeding is vitiated. The main attack of the Petitioners in Cr. R.P. 706/82 is that the Magistrate had proceeded to issue summons without taking cognizance of the offence at all and the fact of his having taken cognizance not having been mentioned at all in the order the inference is that he has not taken cognizance.

9. In support of their contentions learned Counsel for the Petitioners place reliance on a few decisions which will be referred to later, if necessary.

10. On the other hand, according to the learned State Public Prosecutor a Magistrate dealing with a private complaint under Section 200 of the Code can be said to have taken cognizance of the offence if applying his judicial mind he had taken steps to proceed in the matter and it was not necessary for him to say, at any stage, that he had taken cognizance. He submitted that the very fact that the Courts below in these cases had proceeded to examine, upon oath, the complainants clearly shows of they having takencognizance of the complaints. He also brought to my notice some decisions of the Supreme Court in the matter.

11. The only question that arises for consideration in these two revisions is, as to whether, in the matter of issuing process to the accused, the Courts below havecommitted any error of law or procedure ?

12. Chapter XIV of the Code, which contains Sections 190 to 199 of the Code, lays down the 'conditions requisite for initiation of proceedings' before Magistrates. Section 190(1)(a) says that '. . . any Magistrate. . .may take cognizance of any offence upon receiving a complaint of facts which constitute such offence.'

13. If Section 190 of the Code enables him to act on a private complaint it is Section 200 of the Code which provides as to how he should, on receiving a complaint, proceed in the matter, if he wants to probe into the veracity of the facts contained in the complaint. That Section says that 'a Magistrate taking cognizance (may in the contextmean' deciding to probe into the veracity of the allegations') of an offence, alleged on complaint , shall examine, upon oath, the complainant '.The moment he decides to probe he can be said to have taken cognizance of the offence(s) alleged, The first thing a Magistrate, deciding to probe into the allegations, does is he will record the sworn statement of the complainant. That fact of recording the statement, on oath, is the clear indication that he has taken cognizance of the offence(s) alleged.

14. The term 'any Magistrate ....may take cognizance of' or 'a Magistrate taking cognizance of' are used in Sections 190, 200 and 204 of the Code. Nowhere does the Code define as to what the term 'taking cognizance of' means.

15. There is a plethora of case law on this question. In view of the authoritative pronouncement of the Supreme Court in several decisions there cannot be any controversy as to the meaning we have to assign to this term - 'taking cognizance of'.

16. In this connection in R. R. Chari -v.- The State of Uttar Pradesh : 1951CriLJ775 Kania, C. J., approvingly referred to a decision of the Calcutta High Court reported in Remembrance of Legal Affairs, Superintendent and Remembrancer of Legal Affairs v. Abani Kumar Banerjee : AIR1950Cal437 which reads thus :

'What is taking cognizance has not been defined in the Cr. P.C., and I have no desire 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) Cr. P. C. he must tot 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.

In our opinion that is the correct approach to the question before Court.

17. Also the observations of that Court in Narayandas Bhagwandas Madhavdas -v.- The State of West Bengal : 1959CriLJ1368 may be noted:

'As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be registered as acts by which cognizance is taken of an offence. It is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent Sections of Chapter XVI of the Code of Criminal Procedure or under Section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance. '

18. In Jamuna Singh and others -v.- Bhadai Shah : 1964CriLJ468 the question is considered in greater detail. In that case, on a private complaint having been filed before him, the Magistrate had examined the complainant, on oath, under Section 200 and had recorded the substance of his statement and thereafter had directed the police to investigate into it. The question before that Court was as to whether cognizance had been taken on a private complaint or on a subsequent police report? The following observations of the Supreme Court be noted :

'When on a Petition of complaint being filed before him the Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When, however, he applies his mind not for such purpose but for purposes of ordering investigation under Section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.

Where the Magistrate after completing the examination of the complainant on oath under Section 200 and recording the substance of it. made the order in these words :

'Examined the complainant on s. a. The offence is cognizable one. To S. I. Baikunthpur for instituting a case and report by 12-12-56.'

Held that if the Magistrate had used the words 'for investigation' instead of the words 'for instituting a case' the order would clearly be under Section 202 of the Code. The fact that he used the words 'for instituting a case' did not make any difference. The Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under Section 156(3). Once, however, he took cognizance he could order investigation by the police only under Section 202 and not under Section 156(3). As it was clear here 'from the very fact that he took action under Section 200 that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only underSection 202 and not under Section 156(3). It would be proper, in these circumstances, to hold that though the Magistrate used the words 'for instituting a case' in this order he was actually taking action under Section 202 that being the only Section under which he was, in law, entitled to act.

The fact that Sub-Inspector of Police treated the copy of the Petition of complaint as a first information report and submitted 'charge-sheet' against the accused persons could not make any difference. The report made by the Police Officer though purporting to be a report under Section 173 should be treated in law to be a report only under Section 202.

The Magistrate had already examined the complainant under Section 200. That examination proceeded on the basis that he had taken cognizance and in the face of this action it was not possible to say that cognizance had not already been taken when he made the order 'to Sub-Inspector, Baikunthpur, for instituting a case and report by 12-12-1956.'

Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the Police Officer's report was received. There was thus no escape from the conclusion that the case was instituted on private person's complaint and not on the police report submitted later by the Police Sub-Inspector. The contention that the appeal did not lie under Section 417(3) must therefore be rejected.'

(Underlining supplied)

19. The observations in Ajit Kumar Palit -v.- State of West Bengal & others : AIR1963SC765 may also be noted :

'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 or Judge, to take notice of judicially. Taking cognizance docs 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. Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled. But statutory provision apart, there is no set material which must exist before the judicial mind can operate. '

20. If a complaint is filed before the Magistrate and, as already stated, he proceeds in accordance with Section 200 and examines, upon oath, the complainant and witnesses, if any present, he can be said to have taken cognizance of the offence, and this is clear from what is stated in Jamuna Singh's case (supra). In that case the Magistrate had recorded the sworn statement of the complainant and had directed the police, exercising his powers under Section 202 of the Code, to investigate into the matter further. The Supreme Court observes that ''it was clear from the very fact that he took action under Section 200 that he had taken cognizance of the offence mentioned in the complaint' and therefore the investigation he had ordered was in exercise of his powers under Section 202 and not under Section 156(3). What had been done in that case was the Magistrate had only recorded the statement, on oath, of the complainant.

21. Now, to consider the decisions of this Court. A few decisions, all rendered by Benches of learned Single Judges were noted. A view, somewhat different from the views of the Supreme Court referred to above, has been taken in those cases. But, there is a later Division Bench ruling of this Court and the decision therein on this question is in accordance with the views of the Supreme Court. Though the head-note in D. P. Shanna -v.- C.R. Gowda 1982 (2) K.L.C. 358 at para-10 does not clearly spell out the ratio of the Division Bench, para-10 of the judgment is clear on the point. Para-10 reads thus:

''Thers is a note on the front page of. the complaint itself that 'the complaint is presented at 3 P. M., register it as P. C., and call on 6-2-1980.' This endorsement clearly goes to show that the Magistrate has applied his mind to the contents of the complaint and, therefore, he adjourned the case for recording the sworn statement of the complainant as required under Section 200. This endorsement coupled with the fact that the Magistrate adjourned the case for recording the sworn statement of the complainant, leaves no doubt in our mind that the Magistrate did apply his mind to the contents of the complaint and found that it was a fit case for taking cognizance and therefore, he adjourned the case for recording the sworn statement of the complainant. Therefore, the argument of Sri Desai that there was no material to show that the Magistrate took cognizance of the offence first before he recorded the statement on oath of the complainant, does not appeal to us in the least.'

22. In view of the authoritative pronouncements of the Supreme Court and the ruling of the Division Bench of this Court it is not necessary to refer to the other decisions of. this Court cited at the Bar.

23. Is it necessary or does the law provide that the Magistrate should expressly state that he had taken cognizance If the law says that a certain thing happens or a certain result is achieved by the performance of an act or series of acts, the thing happens or result is achieved the moment the act is performed. It does not await anyaffirmation in writing. If a question arises as to whether a Magistrate has taken cognizance of a complaint, as in these cases, that can be answered by examining as to what he had done on receiving the complaint. If he had recorded the sworn statement of the complainant and his witnesses, if any, it means he has taken cognizance of the offence alleged. We can say so even if he does not say anywhere in his proceeding that be had taken cognizance or even if he says, after taking cognizance of the offence, as stated above, i.e., after recording the sworn statement of the complainant and his witnesses, if any, that 'I have now taken cognizance and issue process.' It is so in view of the fact that, in law, he will have already taken cognizance.

24. In the instant cases the Magistrates, on receiving the complaints, have recorded the sworn statements of the complainants in accordance with Section 200 of the Code. Therefore, they can be said to have taken cognizance of the complaints. After thus taking cognizance and considering the facts placed before them, the learned Magistrates have ordered issue of process acting under Section 204 of the Code. They have not committed any error of law or procedure in the matter of issuing process summoning the accused.

25. In the course of their arguments the Counsel for the Petitioners also urged another point challenging the orders issuing process. What they say is that there was 'no sufficient ground' within the meaning of Section 204 for issuing process and therefore the orders should be quashed. They were not able to show that fact. There is no basis for that submission.

26. There being no merit in these two Petitions they are rejected not having been admitted.


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