H.R. Khanna, J.
1. This case has been reported by learned Additional District Magistrate, Ambala, and the main question, which arises for determi nation, is whether the provisions of Section 190(1)(e) of the Code of Criminal Procedure (herein after referred to as the Code) apply when a Magistrate makes an order against a person under Section 351 of the Code. It has arisen in the following circumstances:--
2. A chalan under Section 420 and 406 of the Indian Penal Code was presented in the Court of Judicial Magistrate, Ambala City, by Naraingarh police against Lekh Raj and Baldev Singh accused on 13th March 1964. The learned Magistrate framed charge under two heads against both the accused on 2nd April 1964. One of the heads of the charge in English was under Section 420 read with Section 34 of the Indian Penal Code, while the language of the other head of the charge showed that it was under Section 406 of the Indian Penal Code, though that section was not specifically mentioned. The charge framed in Hindi was still more defective because it did not contain either the facts or the section of the Penal Code. Statements of 14 witnesses were recorded and the case was adjourned to 4th July 1964, for recording the evidence of the remaining prosecution witnesses. Subhash Chander was one of the witnesses who was to be examined on behalf of the prosecution on 4th July 1964. On that date Baldev Singh accused made an application praying that Subhash Chander be not examined as a witness but he be proceeded against under Section 351 of the Code, which reads as under:--
'351 (1). Any person attending a criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.
(2) When the detention takes place in the course of an inquiry under Chap. XVIII or after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard.'
The learned Magistrate passed an order on that application that Subash Chander, whose name had been mentioned by a number of witnesses as the executant of some receipts and the recipient of money should stand trial along with the other two accused. As the learned Magistrate appears to have been of the view that he was taking cognizance of the case against Subash Chander under Clause (c) of Sub-section (1) of Section 190 of the Code he adjourned the case to 9th July 1964 for recording the statement of Subash Chander under Section 191 of the Code. Sub-section (1) of Section 190 and Section 191 at the relevant time read as under:--
'190 (1). Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence--(a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.'
'191. When a Magistrate takes cognizance of an offence under Sub-section (1) clause (c) of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused if there be more than one objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate.'
On 9th July 1964 Subash Chander made a statement that he wanted the case to be transferred. The case was then sent to the Court of learned Additional District Magistrate.
3. Before the learned Additional District Magistrate argument was advanced on behalf of Baldev Singh accused that as the trial Magistrate had proceeded under Section 351 of the Code against Sub-hash Chander, Sections 190(3) (c) and 191 did not apply and the trial Court itself should have proceeded with the trial after framing charge against all the accused. This contention found favour with the learned Additional District Magistrate. He has, accordingly, recommended that the order of the trial Magistrate in this respect be set aside and the case be sent back to him. Guidance has also been sought on the point as to whether the trial in the case should proceed in accordance with Section 251-A of the Code which prescribes the procedure to be adopted in cases instituted on police report.
4. I have heard Mr. Shahpuri on behalf of Baldev Singh, Mr. J.S. Chawla on behalf of Subhash Chander and Mr. G.S. Chawla on behalf of the State, who have supported the recommendation to (of?) the Additional District Magistrate- that Clause (c) of Sub-section (1) of Section 190 and Section 191 of the Code do not apply to this case. The recommendation has, however, been opposed by Mr. Vinaik on behalf of Lekh Raj, and after listening to the learned counsel for the parties I am of the view that the recommendation of the learned Additional District Magistrate should be accepted.
5. Section 190 of the Code deals with taking cognizance of offences by Magistrate, and Sub-section (1) of that section provides the different modes in which proceedings before a Magistrate can be initiated when he takes cognizance of an offence. Section 191 provides that if a Magistrate takes cognizance of an offence under Clause (c) of Sub-section (1) of Section 190 he should in fairness to the accused, give him an opportunity of getting the case ivied by another Magistrate. Section 351 of the Code is an enabling provision which authorizes criminal Court to detain any person attending the Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which may appear from the evidence to have been committed. It is further provided that after detention the aforesaid person may be proceeded against as though he had been arrested or summoned in the case.
The language of the section makes it clear that an order under the section can be made only after cognizance of the offence has been taken by a Magistrate and he is seized of the case. After cognizance of the offence has been taken by a Magistrate he cannot be deemed to get divested of that cognizance merely because of his passing an order under Section 351, and it would, in my opinion, be an erroneous approach to hold that after the making of an order under Section 351 by a Magistrate, he takes fresh cognizance of the offence. The initial act of taking cognizance of the offence is complete and cannot be undone by the mere arraignment of another person as an accused consequent upon the making of an order under Section 351 of the Code, and the reason for that is that when a Magistrate takes cognizance he takes cognizance of the offence as a whole and not merely in respect of the person who, for the time being, is put in the dock as an accused. It is significant that the words used in Sub-section (1) of Section 190 are 'take cognizance of any offence' and not 'take cognizance of any offender', and it is, in my opinion not permissible to construe the words 'take cognizance of any offence' in such a manner as to mean 'take cognizance of any offender.' See in this connection Mehrab v. The Crown, AIR 1924 Sind 71 (FB) and Fatta v. State, 66 Pun LR 548: (AIR 1964 Punj 351) wherein stress was laid upon the fact that the words 'take cognizance of an offence' could not be equated to 'taking cognizance of an offender.'
6. The concluding words of Sub-section (1) of Section 351 'and may be proceeded against as though he had been arrested or summoned' show that apart from the necessity of commencing the proceedings afresh and rehearing the witnesses, the case against the aforesaid person is to proceed in the same manner as if he had been arrested or summoned initially. The words thus point to the conclusion that the person against whom an order is made under Section 351 is to be regarded in the same light and is to be proceeded against in the same manner as though he had already been arrested or summoned in pursuance of proceedings initiated under Section 190. Apart from that I find that Section 351 is an independent section in a Chapter of the Code distinct and separate from the one in which Sections 190 and 191 find mention and there is nothing in Section 351 to indicate that resort to it would bring the case under Section 190 (1) (c) and thus make compliance with Section 191 imperative.
7. In Emperor v. Sakhia, (1909) 3 Ind Cas 568 (Nag), the relevant head note, which is based upon observations in the body of the judgment, reads as under:--
'A Magistrate proceeding under Section 351 (1) Criminal Procedure Code, against any person, who may appear, upon the evidence taken, to be concerned in the offence under investigation, cannot properly be regarded as taking cognizance of the case upon information received or upon his own knowledge or suspicion, within the meaning of Clause (c) of Sub-section (1) of Section 190, so as to enable the accused to object to that Magistrate proceeding Further with the case. Section 351 is self-contained, complete in itself and independent of Section 190 and consequently of Section 191.' Similar view was taken in Imperator v. Lalu, (1911) 12 Cri LJ 399 (Sind). The correctness of the view taken in Sakhia's case, (1909) 3 Ind Cas 568 (Nag) (supra) was questioned in Nga Chan Tha v. Emperor, AIR 1923 Rang 31 (FB), and the matter was referred to the Full Bench. Robinson C. J., who spoke for the majority, observed:--
'The addition of a new accused does not, in my opinion, necessitate fresh proceedings in initiation. The evidence, it is true, must be recorded de novo, but that is merely in order that the witnesses, whose evidence has already been recorded, may be used against the new accused. The Magistrate having taken cognizance of the offence, it is right and proper that he should bring to justice all those persons, whether originally mentioned or not, who the evidence shows were guilty of that offence. It has been held that in such cases, the Magistrate should be regarded as taken cognizance under the same clause of Section 190 as he did against the original accused and if it were necessary to apply Section 190 at all, I would hold that that is the correct view to take for the reasons that 1 have given above. But, in my opinion, Section 351 applies to such cases, and is intended to apply to them. The offence being one and the same, and the Magistrate, having cognizance of that offence acting under Section 190 (b), has full seisin of the offence. He takes action on the evidence given for the prosecution to establish the offence, and there is apparently no need, therefore, to refer back to Section 190 at all.'
Maung Kin J., who wrote a separate judgment, observed that Section 190 (1) (c) of the Code did not apply to a case if a person was proceeded against under Section 351 of the Code. The above Full Bench case was followed in Maung Thet v. Maung Chit Kywe, AIR 1941 Rang 30.
In Kachu Gogoi v. State, (1951) 52 Cri LJ 1457: (AIR 1951 Assam 151), a Magistrate, after examining a few witnesses in a case against 'B' ordered the police to send charge-sheet against 'K' also, A charge-sheet against 'K' was submitted and 'B' and 'K' were found guilty and were convicted. In revision before the Assam High Court it was contended on behalf of ''K' that the Magistrate in directing the police to submit the charge-sheet against him exercised his powers under Clause (c) of Sub-section (1) of Section 190 of the Code. There was a difference between Thadani C. J. on one side and Ram Labhaya, T. on the other, on the point as to whether the cognizance of a case having already been taken, Section 191 was applicable. The matter was then 'referred to Deka, J. and he agreed with Thadani C.J. that the cognizance of the case having already been taken, Section 191 was not applicable, and that the Magistrate could proceed against both the accused. I thus find that there is overwhelming authority for the proposition that a Magistrate does not act under Clause (c) of Sub-section (1) of Section 190 of the Code when he passes an order against a person under Section 351 of the Code. He having taken cognizance of the offence can proceed against the person against whom the order under Section 351 is made, and the question of recording the statement of the person newly added as accused under Section 191 does not arise.
8. In view of the above, I would hold that the Judicial Magistrate, Ambala City who made the order, under Section 351 of the Code against Subash Chander, could proceed with the case and he was in error in considering that he was taking cognizance of the case against Subhash Chander under Clause (c) of Sub-section (1) of Section 190. He was also, in the circumstances, not justified in recording the statement of Subhash Chander under Section 191 of the Code. The order of the learned Magistrate in this respect is set aside.
9. So far as the procedure to be adopted by the learned Magistrate is concerned I find that as cognizance of the offence in the present case was taken upon a report in writing made by a police officer it would follow that the learned Magistrate took cognizance of the offence under Clause (b) of Sub-section (1) of Section 190 of the Code. Further as warrant cases instituted on police report are to be tried in accordance with the procedure laid down in Section 251-A of the Code, and as the present case was initially instituted upon police report, it would have to be governed by the procedure laid down in Section 251-A. The mere fact that one of the accused was added' because of an order made under Section 351 would not affect the nature of the case which would remain to be one instituted on police report. I, therefore, direct that the learned Magistrate shall follow the procedure laid down in Section 251-A of the Code. Care may be taken to rectify the mistakes pointed out above in the charge against the accused.
10. I may observe that Mr. Vinaik has argued that Section 351 of the Code contemplates that the person against whom the order is made under that section, should be tried separately and not along with the accused who are already standing trial in the case. It is accordingly, contended that the case should proceed against Lekh Raj and Baldev Singh accused and there should be a separate trial against Subash Chander. This contention is not well-founded, because once an order is made under Section 351 the person against whom that order is made becomes an accused at the trial of that very case in which the order is made. All that is required is that proceeding will have to commence afresh and witnesses re-heard so that the aforesaid person may not suffer because of any proceedings taken in his absence and before he is arraigned as an accused. It is not, however the object of the law that the aforesaid person should have a trial separate from the one in which the order against him is made.
11. I, therefore, set aside the impugned order of the trial Magistrate and direct him to proceed with the case in accordance with law in the light of observations made above. As the matter is getting old, steps should be taken to expedite the disposal of the case.