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Smt. Kanthijabi Vs. P.S. Abdulla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1971CriLJ1474
AppellantSmt. Kanthijabi
RespondentP.S. Abdulla
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 439 (2): [k. sreedhar rao & l. narayana swamy, jj] cancellation of bail order of session court cancelling the bail without there being an application for cancellation and directing judicial custody of the accused held, without an application under section 439(2) cr.p.c, by the state and proper opportunity for the accused to meet the case, it is not proper for the sessions court to have cancelled the bail and remand the accused to judicial custody. it is evident that the state has not made any application for cancellation of bail. however, as a matter of routine in the objections statement, the state public prosecutor made allegations that the accused was not prompt in appearing before the court on hearing dates. the..........is not taken of offenders. as per the provisions of section 190 of the criminal procedure code, cognizance is taken of an offence. in fatta v. the state a.i.r. 1964 punj 351, their lordships have laid down that the expression takes cognizance of an offence cannot be equated to take cognizance of an offender and the normal rule is that when a magistrate takes cognizance of an offence he takes cognizance of the case as a whole.the same is the principle laid down in raghubansh dubey v. state of bihar : air1964pat487 . this decision has been affirmed by the supreme court in raghubansh dubey v. state of bihar : 1967crilj1081 . the supreme court has approved the decision in a.i.r. 1964 punj 351, it has also approved the decision in 1963 (2) cri lj 66 (all), ali ullah v. the state.in.....
Judgment:
ORDER

M.S. Nesargi, J.

1. This petition is directed against the order dated 22-9-1970 passed by the Additional First Class Magistrate, Bangalore, in C. C. No. 2555 of 1970 ordering that A-3 in the case is to be dropped from the proceedings and directing the complainant to proceed against the other accused persons i.e.. A-l, 2 and 4 at that stage. It is contended on behalf of the petitioner-complainant that this order is on the face of it illegal and unsustainable in law.

2. The few facts that have given rise to this petition may be narrated briefly as follows:

This petitioner as a complainant filed a private complaint on 17-11-1966 in the Court of the City Magistrate, Bangalore, against three persons alleging an offence punishable Under Section 420 of the Indian Penal Code. Her complaint was that the said three ac cused persons, of whom the present respondent-1 was not one, dishonestly and fraudulently secured her L. T.M. to a document which ultimately she came to be informed was a power of attorney and on the strength of that drew Rs. 10,000/- from the Life Insurance Corporation of India out of the Insurance sum insured by her husband.

The learned Magistrate recorded the sworn testimony of the petitioner complainant and directed enquiry and report under the provisions of Section 156 (3) of the Criminal Procedure Code. Thereafter, the police enquired into the matter and submitted their report in the form of a charge-sheet. In that they had involved the present respondent-1 as A-3 and the remaining accused persons mentioned in that complaint as A-l, 2 and 4. On receipt of this report, the learned Magistrate, issued process against all the four persons (including the present respondent No. 1). The present respondent-1 and two other accused appeared before the learned Magistrate, in response to the summons issued against them on 25-3-1969. The T remaining accused was not traced and: non-bailable warrant was issued. Ultimately on .23-8-1969 the learned Magistrate proceeded to dismiss the complaint Under Section 259 of the Criminal Procedure Code on the ground that the complainant was absent on that date.

The records go to show that as against that Order, the petitioner complainant preferred to a revision petition in the Court of the Sessions Judge, Bangalore, and that was allowed and the matter was sent back for trial. Ultimately, the case was transferred to the Court of the Additional First Class Magistrate, Bangalore, and there it was numbered as C. C. No. 2555 of 1970. The present respondent-1 continued to appear through his lawyer, and it appears that on 22-9-1970 the counsel appearing on behalf of respondent-1 put forward a contention before the learned Magistrate that in the original complaint filed by the Petitioner-complainant, the present respondent-1 had not at all been mentioned as an accused, and as such the proceedings against him should be dropped. The matter was argued and then ultimately the learned Magistrate ordered that A-3 be dropped from the proceedings.

3. The only reason given by the learned Magistrate, in support of his impugned order, is that the petitioner-complainant had not at all levelled any allegations in her complaint against present respondent-1.

4. The learned Advocate appearing on behalf of the petitioner vehemently contended that there is no provision in the Criminal Procedure Code by virtue of which a Magistrate can pass such an order of dropping proceedings in such matters. The learned Government Pleader supported this contention of the learned Advocate for the petitioner. The learned Advocate on behalf of Respondent-1 urged that the Magistrate had all powers and he, in the exercise of his discretion, has passed the impugned order for a substantial reason mentioned by him and as such it cannot be said that the order is. illegal.

5. In regard to the above contention, it must be observed that there is no provision in the Criminal Procedure Code empowering a Magistrate to drop proceedings against any of the accused that too after taking cognizance of the offence complained. In this connection, it is seen that though the learned Magistrate ordered enquiry Under Section 156 (3) of the Criminal Procedure Code after recording the sworn testimony of the petitioner-complainant and the police submitted charge-sheet after such enquiry, that charge-sheet should be regarded as a report submitted by the Police in pursuance of an order passed by the Magistrate Under Section 202 of the Criminal Procedure Code, and that in such cases the procedure provided Under Section 252 of the Criminal Procedure Code, would be applicable in regard to trial of the case. It is so laid down in the decision of this Court in K. V. Subbiah v. State of Mysore, (1968) 2 Mys LJ 604 : (A.I.R. 1969 Mys 184). It is therefore clear that in law the charge-sheet submitted by the police wherein they had stated that the present respondent-1 was also involved in the commission of the offence of which cognizance had already been taken by the learned Magistrate, is a report submitted by them as called for by the Magistrate Under Section 202 of Criminal Procedure Code. In a trial under the provisions of Section 252 of the Criminal Procedure Code, the only orders that can be passed by a Magistrate are: an order of discharge Under Section 253 of the Criminal Procedure Code, dismissal of the complaint Under Section 259 of the Criminal Procedure Code or judgment of conviction or acquittal. There is no provision to order dropping of proceedings against any particular accused. The order now in question is evidently not an order of discharge passed by the learned Magistrate by exercising powers vested in him Under Section 253 of the Criminal Procedure Code because nowhere has the learned Magistrate stated in his order that for the reasons mentioned by him he has found that the charge against the present respondent-1 who was A-3 before him, is groundless.

6. It was nextly contended by the learned Advocate for the petitioner that cognizance of the offence had already been taken by the Magistrate and that process had not been issued against any of the accused persons mentioned in the complaint filed by the petitioner-complainant and that such an order of issue of process came to be made not only against the three accused persons mentioned by the petitioner-complainant in her complaint, but also against the present respondent 1 whose name came to be mentioned in the report submitted by the police and, therefore, the learned Magistrate could not have proceeded to drop the proceedings against the present respondent.

The learned Counsel appearing on behalf of respondent-1 strenuously urged that the learned Magistrate had taken cognizance of the offence only as against three accused persons mentioned by the petitioner-complainant in her complaint and, therefore, the police had no powers to incorporate one more person as a person involved in the offence, while submitting their report Under Section 202 of the Criminal Procedure Code and as such the Magistrate could not have proceeded against the respondent-1. He also urged that having once taken cognizance under Clause (a) of Sub-section (1) of Section 190 of the Criminal Procedure Code, the learned Magistrate could not have taken cognizance once again against the present respondent-1 on the basis of the report filed by the police.

In my opinion, there is no force in this contention. It would not be legally correct to say that the Magistrate had taken cognizance of the offence in regard to particular offenders. Cognizance is not taken of offenders. As per the provisions of Section 190 of the Criminal Procedure Code, cognizance is taken of an offence. In Fatta v. The State A.I.R. 1964 Punj 351, their Lordships have laid down that the expression takes cognizance of an offence cannot be equated to take cognizance of an offender and the normal rule is that when a Magistrate takes cognizance of an offence he takes cognizance of the case as a whole.

The same is the principle laid down in Raghubansh Dubey v. State of Bihar : AIR1964Pat487 . This decision has been affirmed by the Supreme Court in Raghubansh Dubey v. State of Bihar : 1967CriLJ1081 . The Supreme Court has approved the decision in A.I.R. 1964 Punj 351, It has also approved the decision in 1963 (2) Cri LJ 66 (All), Ali Ullah v. The State.

In all these decisions, it has been clearly laid down that taking cognizance of an offence does not mean taking cognizance of offenders, and that by taking cognizance of an offence the Magistrate is seized of the whole case and he has powers to proceed even against persons as accused who are not disclosed or mentioned in the challan submitted by the Police. In the Punjab case, a complaint had been made by the injured to the police that six persons named by them had assaulted them and caused injuries. The police after investigation challaned only three out of those six persons for having committed offences punishable Under Sections 325, 324 read with Section 34 of the Indian Penal Code. When the prosecution witnesses were examined before the Magistrate, the evidence disclosed the complicity of the remaining persons and the learned Magistrate at that stage issued process against the said remaining persons and they challenged the validity of the order so passed by the learned Magistrate. As already mentioned above, it was held that the learned Magistrate had full powers in proceeding against these three persons also and that there was no legal impediment in the way of the trial Magistrate passing an order for summoning them as accused persons even though the police had challaned some other persons. In : 1967CriLJ1081 . Their Lordships have while affirming the decision of the High Court of Patna in : AIR1964Pat487 , laid down that summoning of additional accused is a part of proceeding initiated by taking cognizance of an offence and that a Magistrate has got to proceed against those offenders though not sent by the police.

The learned Advocate appearing on behalf of respondent-1 contended in this connection that the matter would be different when a case is instituted on report and these decisions deal with only proceedings instituted on a police report. I am unable to see any force in this contention because whether cognizance of an offence is taken by a Magistrate on the basis of the report submitted by a police officer or on a complaint or on the information received by him as provided in Clause (c) of Sub-section (1) of Section 190 of the Criminal Procedure Code, the Magistrate exercises the same powers in proceeding into that proceeding and meeting out justice in the case. There is no change made, on the basis of the manner in which the information is received by the Magistrate to enable him to take cognizance of an offence- in regard to powers exercisable by Magistrate while discharging his duties in trying the case concerned with the offence of which he has taken cognizance.

In the case on hand, the Magistrate had already taken cognizance of the offence on the complaint instituted by the petitioner-complainant. That would clearly go to show that cognizance has already been taken by the Magistrate as per the powers vested in him under Clause (a) of Sub-section (1) of Section 190 of the Criminal Procedure Code. Thereafter he became seized of the whole case because he had taken cognizance of the offence. Then on receiving the report sent by a police officer, he found that on the materials disclosed therein, there were reasons to believe that the present res-pondent-1 was also involved in the commission of the offence of which he had already taken cognizance. In the decisions referred to above, such information had come to the knowledge of the Magistrate because of the evidence of some of the prosecution witnesses. In my opinion, the way in which the information reaches the Magistrate is immaterial as long as he has grounds to rely on that information to enable him to issue process against the persons concerned. In view of these reasons, I am of the opinion that the contention put forward by the learned Counsel appearing on behalf of respondent-1, is to be rejected.

7. It is also seen from the facts narrated in the preceding paragraphs that after issue of summons to respondent-1, he appeared through a counsel and attended the court and he was also a party in the revision petition filed by the petitioner-complainant in the court of Session. While challenging the order of dismissal of the complaint passed by the learned Magistrate Under Section 259 of the Criminal Procedure Code, and he contested that revision petition. It is as late as 22-9-1979 that this objection was raised by respondent 1.

8. In view of the foregoing reasons, I find that the order in question passed by the learned Additional First Class Magistrate, Bangalore is clearly unsustainable in law, and as such is liable to be set aside. Therefore, this petition is allowed and the order passed by the Additional First Class Magistrate. Bangalore, on 22-9-1970 in C. C. No. 2555 of 1970 dropping the proceedings against the present respondent-1 who was A-3 before him, is set aside.


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