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O.P. Singhi and ors. Vs. State of Sikkim and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1978CriLJ1650
AppellantO.P. Singhi and ors.
RespondentState of Sikkim and anr.
Cases ReferredAjoy Krishna v. S.G. Bose
Excerpt:
- - , sitting singly, was observed that the rule of practice 'that the accused shall surrender to the processes of the court below before being entitled to invoke the revisional jurisdiction of the high court is a wholesome and well-known rule of practice which has assumed a sanctity imparted to it by an imprimatur of judicial decisions' and should not be deviated from. i am aware of this rule of practice of the calcutta high court, but i do not know this to be an inflexible rule of universal application and i am of opinion that rigorous application of this rule, without consideration to the facts and circumstances of a case, may result in flagrant failure to administer justice in deserving cases on the ground of technicalities. there is no dispute that the present application would be.....ordera.m. bhattacharjee, actg. c.j.1. i have heard mr. a. p. chatterjee, the learned advocate appearing for the petitioners and the learned advocate-general appearing for the state and have examined the records of the case and i am of opinion that the revisional application should be dismissed.2. the facts of the case, shorn of such details as are not necessary for the present purpose, are that on receipt of a complaint filed by the respondent no. 2 against the petitioners and two others, the learned district magistrate, without examining the complainant or his witnesses, decided, by his order dated 5th aug., 1977, to hold enquiry and fixed 17th aug., 1977, as the date therefor, but on the date so fixed, that is on 17th aug., 1977, the learned district magistrate by order transferred the.....
Judgment:
ORDER

A.M. Bhattacharjee, Actg. C.J.

1. I have heard Mr. A. P. Chatterjee, the learned advocate appearing for the petitioners and the learned Advocate-General appearing for the State and have examined the records of the case and I am of opinion that the revisional application should be dismissed.

2. The facts of the case, shorn of such details as are not necessary for the present purpose, are that on receipt of a complaint filed by the respondent No. 2 against the petitioners and two others, the learned District Magistrate, without examining the complainant or his witnesses, decided, by his order dated 5th Aug., 1977, to hold enquiry and fixed 17th Aug., 1977, as the date therefor, but on the date so fixed, that is on 17th Aug., 1977, the learned District Magistrate by order transferred the case to another Magistrate for proceeding according to law. The transferee Magistrate on receipt of the complaint fixed 23rd Aug., 1977 for the examination of the complainant and his witnesses and after examining them on several dates, the learned Magistrate issued process against the petitioners and two others under Section 323 of the Indian Penal Code. The petitioners have come up in revision against this order of the learned Magistrate issuing process against them.

3. The learned Advocate-General in opposing the revisional application has raised two preliminary objections as to the maintainability of the application, the first being that the petitioners not having surrendered to the process issued against them by the learned Magistrate have no right or locus standi to come up in revision and the second being that the application is barred by limitation.

4. In order to appreciate the first objection raised by the learned Advocate-General it is necessary to state that after process was issued by the learned Magistrate requiring the petitioners to appear before him on 1st April, 1978, the petitioners on that date filed applications before the learned Magistrate through their lawyers praying that another date be fixed for their appearance as they were not in a position to appear on that date due to various pre-occupations and other reasons and that prayer was allowed and 6th June, 1978 was fixed for their appearance in Court. But on 5th June, 1978, the petitioners moved this Court in revision and further proceeding in this case before the Magistrate was stayed. The learned Advocate-General has, therefore, urged that the revisional application is not maintainable in as much as the accused-petitioners have not surrendered to the process of the Court below and the learned Advocate-General has relied on the decision of the Calcutta High Court in Lakshmi Kanta Sen v. State (1971) 75 Cal WN 601. In that case Talukdar, J., sitting singly, Was observed that the rule of practice 'that the accused shall surrender to the processes of the Court below before being entitled to invoke the revisional jurisdiction of the High Court is a wholesome and well-known rule of practice which has assumed a sanctity imparted to it by an imprimatur of judicial decisions' and should not be deviated from. But, as Talukdar, J. has himself pointed out, and in my view rightly, there is no such rule of law nor any absolute rule of practice that a person summoned to appear must appear and submit to the process of the Court below before he can invoke the revisional jurisdiction. I am aware of this rule of practice of the Calcutta High Court, but I do not know this to be an inflexible rule of universal application and I am of opinion that rigorous application of this rule, without consideration to the facts and circumstances of a case, may result in flagrant failure to administer justice in deserving cases on the ground of technicalities. If in a case any process has been issued by the Court illegally or without jurisdiction and the High Court feels that justice requires that such an illegal process should be cancelled or quashed, then it is difficult to understand what further principle of justice should invariably require that the person concerned must submit and surrender to such an illegal process before he can be heard to pray for justice and be administered justice by quashing such illegal process.

5. In Sunilakhya v. H.M. Jadwet : AIR1968Cal266 , the accused-petitioner, before moving the High Court in revision, sent telegrams to the Court below praying for adjournment and it was held by Talukdar, J., that it was sufficient submission to the process of the lower Court to entitle the accused to invoke the revisional jurisdiction of the High Court. In the case at hand, as already noted, the petitioners engaged lawyers who were present in Court and moved the petitions for adjournment on behalf of the petitioners. If sending of telegrams praying for adjournment could be regarded as sufficient submission to the process of the Court to enable one to move the High Court in revision, as held in Sunilakhya's case, then filing of adjournment petitions through lawyers is surely no less submission. Be that as it may, I am of opinion that a revision petition at the instance of the accused is not to be invariably dismissed simply on the ground that the accused has not submitted to the process of the Court below before moving the High Court in revision. I am further of opinion that in the instant case the petitioners have in fact submitted to the process of the Court by filing adjournment petitions through their lawyers and are, therefore, entitled to move this Court in revision, even assuming that prior submission to the Court's process is necessary to entitle them to invoke the revisional jurisdiction of this Court.

6. The second objection pressed by the learned Advocate-General relates to the question of limitation for a criminal revision. By a Notification No. 3112-80/ AC dated 6th May, 1950, the period of limitation for filing Appeals, Reviews and Second Reviews has been fixed as two months from the date of delivery of the judgment. In Sikkim there is no period of limitation fixed for filing Criminal Re-visional Applications as was the position in the other States in India under the Limitation Act of 1908, which has now been repealed and replaced by the Limitation Act of 1863. It may be noted that neither the Act of 1908 was nor the Act of 1963 is extended to or adopted in Sikkim. By the Limitation Act of 1963, under Article 131 thereof, a period of ninety days has now been fixed for application to any Court for the exercise of its powers of revision under the Code of Civil and Criminal Procedure; but, as already noted, no such period was fixed under the Limitation Act of 1908. But even then, it became the usual practice of several High Courts not to entertain Criminal Revisional Applications made after the period fixed for filing appeals including the time taken for obtaining the copy of judgment and also the time, if any, occupied in prosecuting with! due diligence any application to the Court of Sessions for a reference to the High Court and obtaining its decision,

7. Dealing with this question of limitation it has been observed by this Court in Kinzang Dahdul v. State 1978-1 Sikkim LJ 13 at pp. 16-17 as hereunder:

So far as this High Court is concerned there is, as yet, no rule of practice that Criminal Revisions, which are filed after the expiry of the period allowed for appeals, are to be rejected simply on the ground of delay or laches. The admission or non-admission of applications for revision is entirely discretionary and we do not think that it is necessary for us to prescribe any hard and fast rule for the purpose. We may, however, observe that where the law prescribes, a period of limitation for any action, a party may come to the Court at the last moment before the expiry of the period allowed under the law and need not be diligent or show his diligence during the period so allowed or prescribed. But where the law allows an action but does not prescribe any period for initiating such action, a party must initiate such action with all due diligence and reasonable promptitude. It is, therefore, trite to say that a revisional application is to be filed within a reasonable period and ordinarily the period allowed for filing appeals may be regarded as the standard for reasonable time within which applications for revision should ordinarily be filed. In our opinion, when an application for revisions has been made after the expiry of the period allowed for an appeal, the Court should ask the applicant to give reasons for and to explain the delay and not to entertain the revisional application if the reasons and explanations are not found to be satisfactory or sufficient.

8. The reasons put forward by the petitioners for explaining the delay is that the petitioners' lawyer, who was entrusted with the filing of the revisional application, and who practises law in West Bengal, was under bona fide impression that the period of limitation for Criminal Revision was ninety days. As already pointed out, under Article 131 of the Limitation Act, 1963, which now contains the law on this point for the whole of India except the State of Jammu and Kashmir and this new State of Sikkim, the period of limitation for application for the exercise of powers of revision under Criminal Procedure Code is ninety days and, therefore, I am quite inclined to believe that it is likely for any lawyer practising in such other States to entertain a bona fide, even though erroneous, belief that the Central Law of limitation would have all India application and legal proceedings in the Courts in Sikkim would also be governed by the provisions of the said Central Law. There is no dispute that the present application would be within time under the provisions of the said Central Law, being the Limitation Act of 1963. Though it cannot always be put into a strait-jacket of a general doctrine, it has been repeatedly held by the Courts that the mistaken advice given by a lawyer is a good ground for condoning the delay and eaves the parties from the result of wrong advice. No authority is necessary for this well-established proposition, but yet reference may be made to the decision of the Supreme Court in Punjabi University v. A.S. Ganesh : AIR1972SC1973 , referred to by Mr. Chatterjee, and also to the decision of the Supreme Court in State of West Bengal v. Administrator, Howrah Municipality : [1972]2SCR874a and to the decision of the Privy Council in Kunwar Rajendra Bahadur Singh v. Rajeswar Bali AIR 1937 PC 276. Furthermore, as I have already pointed out, statutory laws of Sikkim do not provide for any period of limitation for criminal revision and it is only in the recent case of Kinzang Dahdul (1978-1 Sikkim LJ 13) that we have for the first time settled the point by laying down that the period of limitation prescribed for appeals shall ordinarily be regarded as the period within which revisional applications are to be filed. While we hope that the law laid down by us in Kinzang Dahdul's case would, as it must, be followed by all concerned in future cases, I am inclined to think that in considering the question as to whether there is good ground or sufficient cause for condoning the delay made in this case due to lawyer's mistake, I would be failing in my duty if I do not take into consideration the uncertain position of the law on the point until our recent decision in Kinzang Dahdul's case, reported only a few months before I am, therefore, not inclined to dismiss the revisional application on the ground of limitation and would condone the delay. Both the preliminary objections raised by the learned Advocate-General are, therefore, overruled.

9. This brings me to the merits of the application. On merits, Mr. Chatterjee has firstly urged that the learned District Magistrate had expressly stated in his order on the first date, being 5th Aug. 1977, that he had not taken cognizance of the case and, therefore, his order on the next date, being 17th Aug. 1977, transferring the case to another Magistrate was illegal and without jurisdiction, According to Mr. Chatterjee, such a transfer could only be made under Section 192 of the Code of Criminal Procedure, 1898, and under the express terms of the Section, could only be made by a Magistrate who had taken cognizance of the case. It should be noted here that the Code of Criminal Procedure, 1898, hereinafter referred to as 'the Coda', is still the law relating to criminal procedure in Sikkim. Mr, Chatterjee has, therefore, argued that the purported transfer being illegal and without jurisdiction, the transferee Magistrate could not get any authority to proceed with the case and all subsequent proceedings, therefore, were bad and are liable to be quashed as such.

10. The question as to whether the learned District Magistrate actually took cognizance of the case before the case was transferred by him by his second order dated 17th August, 1977, is very much material, for as Mr. Chatterjee has fairly conceded, if the learned District Magistrate took cognizance of the case at any stage before the transfer, neither the transfer nor the proceedings subsequent thereto can be said to suffer from any infirmity. I may, however, note that at one stage Mr. Chatterjee submitted that even if the learned District Magistrate took cognizance of the case before transfer, the order issuing process passed by the transferee Magistrate in this case would still be illegal as under Section 204 of the Code, only the Magistrate 'taking cognizance' can issue process. It is no doubt true that Section 204, dealing with issue of process, provides that 'the Magistrate taking cognizance' is to issue process. But it is, however, clear from the provisions of Section 202 of the Code, that the Magistrate to whom the case is transferred under Section 192 by a Magistrate taking cognizance thereof, may, if he thinks fit. postpone the issue of process and such a power to postpone the issue of process must obviously include the power to issue process. That is why the Supreme Court has held in Rajendra Nath Mahato v. Deputy Superintendent : 1972CriLJ268 that 'the power of a Magistrate to issue process under Section 202 of the Code is not limited by the terms of Section 204 of the Code of Criminal Procedure to issue process' and that 'the issue of process is by the Magistrate who has taken cognizance or the Magistrate to whom the case has been transferred.' This question has been debated in the Courts in India almost from the time of the commencement of the Code of 1898 and in view of the difference of opinion among the different High Courts and also the necessity of a Supreme Court decision on the point as late as in 1972, it was expected that the new Code of Criminal Procedure of 1973 would express the matter in clearer terms. But it appears from the corresponding Section, being also Section 204, of the new Code that the same expression has been retained. The learned Advocate-General has referred me to a recent Division Bench decision of the Calcutta High Court in Asiatic Oxygen v. State, 80 Cal WN 378 : 1976 Cri LJ 1596 where, after referring to and relying on several earlier decisions of that Court and also the Supreme Court decision in Rajendra Nath Mahato's case, it has been held by the Calcutta High Court, construing the similar provision of the new Code of 1973, that a Magistrate to whom the case has been transferred under Section 192 by another Magistrate, who has taken cognizance of the case, stands In the shoes of the original Magistrate and has full authority to deal with the case and issue process as if he himself had taken cognizance of it. This point, however, has not been seriously pressed by Mr, Chatterjee and need not detain me any further,

11. The most material question for my consideration in this case is when, how and by whom the cognizance in this case was taken. I would like to quote hereinbelow the orders, being two in number, of the original transferring Magistrate and also the four relevant orders of the transferee Magistrate, to enable me to consider the question in its proper perspective.

5-8-77. Seen the complaint of Rambi-lish Agarwala. Before takingany cognizance I deem it pro-per to hold an enquiry. Summon Rambilash Agarwala, To : 17-8-77 Sd/- Sonam Wangdi District Magistrate, Gangtok. 17-8-77 I am very busy with other works. Hence the file is trans-ferred to the learned Judicial Magistrate, 1st Class for action according to law. Sd/- Sonam Wangdi, 17-8-77. The complainant present in person. Let him produce his witness on 23-8-77. Register it as Crl. Misc. Case. Sd/- T. Dorjee Judicial Magistrate Gangtok, 17-8-7723-8-77 Complainant present. Examin-ed three P. Ws. including the complainant. Complainant wants to examine one more witness Le., Sh. K.S. Karki, MLA. To come up on 30-8-77 for fur-ther evidence. To : 30-8-77 Sd/- T. Dorjee. Judicial magistrateGangtok. 23-8-7716-12-77 Complainant present. Examin-ed the M.O. as the last wit-ness. For orders.To: 24-1-76 Sd/- T. DorjeeJudicial Magistrate Gangtok. 7-3-78 Complainant present,Case Under Section 323 I.P.C. registered against the Opposite parties. Order in separate sheets of paper. Accused be summoned. To: 1-4-78 Sd/- T. DorjeeJudicial Magistrate,Gangtok.

12. But for the words 'Before taking cognizance' used by the learned District Magistrate in the order of the first date, which), according to Mr. Chatterjee, mean that whatever the learned District Magistrate did on that date, he did without taking cognizance of the case, I would have held, without any hesitation, that the learned District Magistrate took cognizance of the case on the first date and decided to hold enquiry under Section 202 of the Code. It is no doubt true that the learned District Magistrate did not examine the complainant as required under Section 200 of the Code; but as the proviso to Section 202 (1) of the Code makes it clear, examination of the complainant is a must when the Magistrate directs an inquiry or investigation by some other Magistrate subordinate to him or by a police officer or other person and not when he decides to inquire himself. From as early as 1951, the Supreme Court has in a series of cases considered the question as to what is meant by the expression 'taking cognizance' and has approved and adopted the observations of Dasgupta, J, (as his Lordship then was) made in Superintendent and Remembrancer of Legal Affairs v. Abani Kumar Banerjee : AIR1950Cal437 and reference may be made to the decisions of the Supreme Court in R. R. Chari v. State of Uttar Pradesh : 1951CriLJ775 . Narayandas Bhagawandas v. State of West Bengal : 1959CriLJ1368 , Gopal Das v. State of Assam AIR 1961 SC 986 at p. 989 : 1961 (2) Cri LJ 39 at pp. 42-43. The relevant portion of the observations of Dasgupta, J., is quoted hereinbelow:

It seems to be clear however that be-fore it can be said that any Magistrate has taken cognizance of any offence under Section 190 (1) (a), Criminal Procedure. Code, he must not 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 search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence.

13. The same view has been reiterated by Dasgupta, J., himself in the decision of the Supreme Court in Jamuna Singh v. Bhadai Shah : 1964CriLJ468 and the later decisions of the Supreme Court in Nirmaljit v. State of West Bengal : [1973]2SCR66 and in D. Lakshminarayana v. V. Narayana : 1976CriLJ1361 have also restated the same view.

14. It is clear that even on the first date, i.e., on 5th August, 1977, the learned District Magistrate applied his mind to the contents of the petition of complaint and decided to hold enquiry, which he could do only under the provisions of Section 202 of the case and, therefore, it can be said that the learned District Magistrate applied his mind for the purpose of proceeding in the way indicated in Section 202 of Chapter XVI and, therefore, according to the ratio of the Supreme Court decisions referred to hereinbefore, the learned District Magistrate can be held to have taken cognizance of the case. I am inclined to think that the learned District Magistrate intended to proceed and did proceed under Section 202 of the Code, and, therefore, took cognizance of the case on that date and by the expression 'before taking cognizance', inadvertently used by him, he really meant to say 'before issuing any process'. As already noted, if the learned District Magistrate took cognizance of the case on the first date or at any time before transferring the case, then, even according to Mr. Chatterjee, no infirmity would attach to the proceedings in this case. But I would like to consider that, even if we go literally by the words 'before taking cognizance' used by the learned District Magistrate and hold that the learned District Magistrate did not take cognizance on the first date i.e., on 5th August, 1977, whether the subsequent proceedings would be bad.

15. By the second order dated 17th August, 1977, quoted hereinbefore, the learned District Magistrate transferred the case to another Magistrate for 'action according to law'. Can it not be held that, even assuming that no cognizance of the case was taken by the learned District Magistrate on the first date, on the second date at least he took cognizance of the case and transferred it under Section 192 of the Code? When a Magistrate applies his mind to the contents of the petition of complaint and transfers it to another Magistrate for 'action according to law', does he not take cognizance of the case and proceed under Section 192 of the Code? In all the Supreme Court decisions referred to hereinabove it has been held that before a Magistrate can be said to have taken cognizance of a case, he must apply! his mind to the contents of the petition] for the purpose of proceeding under the 'various provisions of Chapter XVI of the Code of Criminal Procedure', or in other words, under 'Section 200 and subsequent Sections of Chapter XVI of the Code of Criminal Procedure'. Section 192 is not a section in Chapter XVI, but is in an earlier chapter and is obviously not a section 'subsequent' to Section 200. If one is to go literally by the expression 'various provisions of Chapter XVI of the Code of Criminal Procedure or 'Section 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure', etc., as used in all the Supreme Court decisions referred to hereinbefore, then one would have to conclude that when a Magistrate applies his mind to the contents of a petition and proceeds to transfer the case under Section 192, which is not a section in Chapter XVI of the Code or a section subsequent to Section 200, the Magistrate does not take cognizance of the case. But the very terms of Section 192 make it clear that transfer under Section 192 can be only by a Magistrate who has taken cognizance of the case, With the greatest respect, I feel that the observations of the Supreme Court in the decisions referred to above to the effect that before a Magistrate can be said to take cognizance of a case, he must apply his mind for the purpose of proceeding under one or the other section of the Chapter XVI of the Code, are to be read in the particular contexts of those cases where the question as to whether a Magistrate can be held to take cognizance when he applies his mind, not for the purpose of proceeding under Section 200 or other succeeding section of Chapter XVI. but only for transferring the case under Section 192, did never arise for consideration and the Supreme Court cannot be regarded to have held, against the express terms of Section 192, that the Magistrate applying his mind to the contents of the petition and then transferring the case under Section 192, does not take cognizance. My view finds support from the decision of the Supreme Court in Narayandas Bhagwandas v. State of West Bengal AIR 1959 SC 1148 at p. 1122 : 1959 Cri LJ 1368 at p. 1372 where a similar order by a Magistrate transferring a case to another Magistrate for 'disposal according to law' after the receipt of the complaint, was considered as an order taking cognizance of the case. But even then I would like to consider that, even assuming that no cognizance was taken by the learned District Magistrate on the first date or the second date and the order of transfer was, therefore, not a post-cognizance order of transfer under Section 192 of the Code, whether the proceedings suffer from any legal infirmity to warrant interference in revision.

16. During the course of argument I asked Mr. Chatterjee that even assuming that the learned District Magistrate did not take cognizance of the case and as such the transfer made by him was not a transfer under Section 192 of the Code, whether or not the transfer can be regarded as an administrative transfer as was held by the Supreme Court in Copal Das v. State of Assam AIR 1961 SC 986 : 1961 (2) Cri LJ 39 and whether, after the case was so transferred by an administrative order, the transferee Magistrate, if he was otherwise competent to take cognizance, would be a Magistrate who, 'on receipt of complaint to an offence of which he is authorised to take cognizance', within the meaning of Section 202 of the Code, would be competent to enquire into the case himself under that section before issuing any process, as has been done by the transferee Magistrate in this case. In reply, Mr. Chatterjee referred to the decision of the Supreme Court in A. C. Aggarwal v. Ram Kali : 1968CriLJ82 and submitted that now that the Supreme Court has held in that case that the expression 'may take cognizance' in Section 190 means 'must take cognizance' and that a Magistrate is bound to take cognizance if a case therefor is made out, the order of transfer by the Magistrate must also be an order after he has taken cognizance, which 'he is bound to take' and, therefore, any pre-cognizance order of administrative transfer must be held to be bad in view of the aforesaid decision. If the Supreme Court in that A. C. Aggarwal's case has laid down that the expression 'may take cognizance' means 'must take cognizance' and, therefore, whenever a petition of complaint disclosing commission of some offence is received a Magistrate must always and immediately take cognizance straightway and cannot, therefore, without taking cognizance, even send the case to the Police under Section 156 (3) of the Code or take any other action, the position would be really startling in view of what has been categorically stated by the Supreme Court in several other decisions, both prior and subsequent to the aforesaid A. C. Aggarwal's case.

16-A. In Gopal Das v. State of Assam AIR 1961 SC 986 : 1961 (2) Cri LJ 39 it has been observed by the Supreme Court (at p. 989 of AIR) : (At p. 42 of Cri LJ) as hereunder:

We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the com-plaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. A complaint disclosing cognizable offence may well justify a Magistrate in sending a complaint under Section 156 (3) to the Police for investigation.

17-18. In Jamuna Singh v. Bhadal Shah : 1964CriLJ468 it has been observed by the Supreme Court (at p. 1544 of AIR) : (At page 471 of Cri LJ) as hereunden

It has been noticed that the Magistrate was not bound to take cognizance of the offence on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under Section 156 (3) of the Code of Criminal Procedure. Once he however took cognizance...

19. In Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 it has been observed by the Supreme Court (at p. 123 of AIR) : (at pp. 102-103 of Cri LJ) that even if the police submits a chargesheet disclosing the com' mission of a cognizable offence, 'the Magistrate is not bound to accept the report.'

20. In State of Assam v. Abdul Noor : 1970CriLJ1264 it has been observed by the Supreme Court (at p. 1367 of AIR) : (At p. 1266 of Cri LJ) that the Magistrate can always, without taking cognizance, send the complaint for investigation by the police under Section 156 (3) of the Code.

21. In D. Lakshminarayana v. V. Narayana : 1976CriLJ1361 it has been observed by the Supreme Court (at p. 1677 of AIR) : (at pp. 1365-66 of Cri LJ) that even if the complaint discloses the commission of a cognizable offence 'the power under Section 156 (3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190 (1) (a).'

22. In the case of Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee : AIR1950Cal437 referred to hereinbefore, which as already noted, has been approved by the Supreme Court in a series of decisions, the real question, as pointed out by Dasgupta, J. (as his Lordship then was) (at page 437), was 'whether.... when a petition of complaint was filed before the Chief Magistrate, he was bound to take cognizance under Section 190 (1) (a), Criminal Procedure Code' and Dasgupta, J. observed (at page 438) that the Magistrate was not so bound and his Lordship further negatived the contention that the Magistrate cannot take any action with regard to a petition of complaint without taking cognizance.

23. In view of this impressive array of authorities, both prior and subsequent to A. C. Aggarwal's case (1968 Cri LJ 82) (SC). I do not think that it should be held that the Supreme Court has laid down in that case that a petition of complaint is to be immediately and Invariably followed by taking of cognizance and that, before taking such cognizance, the Magistrate cannot take any other action like issuing a search warrant or asking the police to enquire and investigate or making an administrative order of transfer to some other Magistrate.

24. Let me, however, consider the decision in A. C. Aggarwal's case (1968 Cri LJ 82) (SC) in some details. In that case a police report was submitted before the Sub-Divisional Magistrate of Delhi which disclosed offences punishable under Section 3 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, namely, keeping or allowing a premises to be used as a brothel and also under Section 7 of the Act, namely, for prostitution in or near certain public places. The Sub-Divisional Magistrate, however, did not take cognizance of the offences, but still proceeded to act under Section 18 of the Act by issuing notices against the persons complained against to show cause as to why the premises in question should not be attached for improper user thereof. The Supreme Court, on an examination of the relevant provisions and the scheme of the Act, held that when the police report clearly disclosed the commission of offences under Section 3 and Section 7 of the Act, it was not right for the Sub-Divisional Magistrate merely to take recourse to Section 18 which was in the nature of preventive measure and that it was necessary for the Sub-Divisional Magistrate first to proceed against the persons concerned under Section 3 or Section 7 of the Act and only after the conclusion of a regular trial thereunder, he should have proceeded under Section 18, if there was occasion for it. It was in this context that the Supreme Court held that the Sub-Divisional Magistrate was bound to take cognizance of the cognizable offences disclosed in the police report. The decision was given in the context of the special provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956 and is not to be construed to have laid down any blanket proposition that in every case in which a cognizable offence is disclosed, the Magistrate must immediately and invariably take cognizance and cannot take any other action whatsoever with regard thereto without taking cognizance. It should be noted that even in the said decision (at p 5, column 2) it has been observed that it would be open to the Magistrate 'to direct fresh investigation by competent police officers before deciding whether the facts placed before him disclosed any cognizable offence.'

25. The Patna High Court in Shiva Shiv Pd. v. State 1975 Cri LJ 187. after considering the aforesaid decision in A. C. Aggarwal's case (1968 Cri LJ 82) (SC) and also the earlier decision of the Supreme Court in Gopal Das's case and other decisions of the Calcutta and the Assam High Courts, has come to the conclusion that A. C. Aggarwal's case cannot be construed as laying down that a Magistrate cannot take any other action or pass any other order with regard to a complaint disclosing commission of an offence, but must at once and invariably take cognizance,

26. As I read the decision of the Supreme Court in A. C. Aggarwal's case (1968 Cri LJ 82) (SC). I am inclined to think that what the Supreme Court decided in that case was that once a clear offence under the relevant law is disclosed, the Magistrate acting under Section 190 'must' take cognizance of the offence before initiating any supplementary, incidental or other proceedings under that law and in that view, the action of the Magistrate in that case in proceeding under ;S. 1'8 of the aforesaid Act without taking cognizance of the offence under S 3 or Section 7 of the Act was deprecated. But I cannot read the decision as laying down that a petition of complaint or a police report, if it discloses the commission of an offence, must invariably and immediately be followed by taking of cognizance and that there cannot be in such a case any pre-cognizance order like transfer to another Magistrate by an administrative order, as was done in Gopal Das's case (1961 (2) Cri LJ 39) or issuing search warrant or sending it to the police under Section 156 (3) of the Code. I am, therefore, inclined to think that even if the learned District Magistrate is held not to have taken cognizance of the case before he made the order of transfer dated 17th August, 1977, the order would amount to a good and valid administrative order of transfer and would enable the transferee Magistrate to take cognizance and to proceed under Section 202 and to decide to hold enquiry before issuing process.

27. The order of the transferee Magistrate dated 17th August 1977 can surely be construed as an order of taking cognizance as the learned Magistrate on receipt of the complaint, applied his mind thereto and decided to inquire in the matter under Section 202 of the Code and asked the complainant to produce all his witnesses. It is no doubt true that under Section 202, Criminal Procedure Code, a Magistrate is to record in writing the reasons if he decides to postpone the issue of the process and to hold an inquiry; but as will appear from the order-sheet, the transferee Magistrate has nowhere recorded any reason for holding inquiry before issuing the process. There can be no doubt that if the Magistrate feels that the case of the complainant needs testing and as such postpones issue of process to enable him to inquire into the case and to be satisfied as to its truth before issuing process, he ought to record the reasons therefor in the order-sheet, not only because that is the mandate of Section 202 itself, but also because that would enable the superior Court to decide as to the propriety of the order postponing the issue of processes, if and When the same is challenged before the superior Courts. Such an order postponing the issue of process and to hold inquiry, without recording the reasons therefor, if challenged immediately or at an early stage, is liable to be set aside; but when such an order is ultimately followed by an order issuing process or dismissing the complaint, the infraction of law will amount to an irregularity curable under the provisions of Section 537 of the Code. This is also the view of the Calcutta High Court as will appear from the Division Bench decision in Ajoy Krishna v. S.G. Bose AIR 1929 Cal 176 at p. 177 : 30 Cri LJ 705 where it was held that the failure to record reasons for postponing the issue of process under Section 202 'would at most be an irregularity and would not justify setting aside of the order.'

28. On a consideration of the facts and circumstances of this case and the law on the point, I feel that three views are possible and they are as hereunder:

(1) The learned District Magistrate took cognizance of the case on receipt of the complaint on 5th August, 1977 and decided to hold inquiry under the provisions of Section 202 of the Code, notwithstanding the expression 'before taking cognizance' used by him in the order.

(2) The learned District Magistrate did not take cognizance of the case on the first date but took cognizance of the case on the second date, i.e., on 17th August, 1977, when he passed the order of transfer which was passed under Section 192 of the Code.

(3) The learned District Magistrate did not take cognizance of the case on any date and transferred the case by an administrative order of transfer on 17th August, 1977 and the transferee Magistrate took cognizance of the case on that date on receipt of the complaint and decided to hold enquiry under the provisions of Section 202 of the Code and issued the process after concluding the enquiry.

29. It is not necessary for me to decide in this case as to which of these three possible views is most appropriate or proper as I feel that whichever of the three possible views is taken, the proceedings do not suffer from any infirmity justifying any intervention in revision.

30. The revisional application, therefore, fails and is dismissed. Let the records be sent back to the Court below as early as possible.


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