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Kesavan Natesan Vs. Madhavan Peethambharan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1984CriLJ324
AppellantKesavan Natesan
RespondentMadhavan Peethambharan and ors.
Cases ReferredMunicipal Corporation of Delhi v. Ram Kishan Rohatgi
Excerpt:
- - section 202 of the 1898 code empowered the magistrate on receipt of a complaint to postpone the issue of process for compelling the attendance of the person complained against and either enquire into the case himself or direct an enquiry or investigation by a subordinate magistrate or a police officer or such other persons as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. this would clearly show that the scheme of the code does not inhibit taking cognizance of an offence twice. it is well recognised by judicial decisions that even where a final report by an investigating officer is laid, the person concerned, who is aggrieved by one or the other aspect of the police report, is entitled to approach the court with a private complaint. a.....u.l. bhat, j. 1. one of us (bhal. j.) who heard the ease originally referred it to a division bench of this court in view of the importance of the questions arising in the case. a division bench of this court heard the case and referred the same to a full bench.2. the facts of the case have been summarised, succinctly by balagangadharan nair, j., speaking for the division bench in the order of reference and we quote the same with advantage:the sub-inspector of police, mararikulam registered a case, crime 185 of 1978 against the petitioner and the 2nd respondent for the offence under section 324 read with section 114, i. p.c. on the allegation that at the instigation of the petitioner, the 2nd respondent stabbed one udayabhanu. udayabhanu subsequently died on account of the stab injury and.....
Judgment:

U.L. Bhat, J.

1. One of us (Bhal. J.) who heard the ease originally referred it to a Division Bench of this Court in view of the importance of the questions arising in the case. A Division Bench of this Court heard the case and referred the same to a Full Bench.

2. The facts of the case have been summarised, succinctly by Balagangadharan Nair, J., speaking for the Division Bench in the order of reference and we quote the same with advantage:

The Sub-Inspector of Police, Mararikulam registered a case, Crime 185 of 1978 against the petitioner and the 2nd respondent for the offence under Section 324 read with Section 114, I. P.C. on the allegation that at the instigation of the petitioner, the 2nd respondent stabbed one Udayabhanu. Udayabhanu subsequently died on account of the stab injury and thereupon Section 324, I. P. C. was substituted by Section 302, I. P. C. After completing the investigation the police filed a charge-sheet against the 2nd respondent alone - dropping the petitioner - for the offence under Section 302, I. P. C. in the court of the Judicial Magistrate of the 2nd Class, Shertallai. The Magistrate took cognizance of the case as O. P. 5 of 1979 and duly committed the 2nd respondent to the Sessions Court, Alleppey, The case was numbered, as S. C. No. 31 of 1979. Thereafter the 1st respondent instituted a private complaint in the same committing court. The complaint was transferred to the Judicial Magistrate of the 2nd Class, Alleppey, where it was numbered as O. P. 14 of 1979 against the petitioner and the 2nd respondent. The Magistrate took cognizance for offences under Sections 323 and 302 read with Section 114, I. P. C. Thereafter the case was committed to the Court of Session and, was registered as S. C. 5 of 1980. The petitioner appeared before the Sessions Court and objected to cognizance of the case having been taken on the ground that the court had already taken cognizance of the case in S, C. 31 of 1979. The learned Sessions Judge overruled the objection and ordered that the two cases would be clubbed together and that as S.C. 5 of 1980 takes in both the accused S. C. 31 of 1979 would, be clubbed with it. The learned Judge also posted the case for framing charge against both the accused. Petitioner seeks to set aside the order.

3. The learned Sessions Judge directed the two Sessions cases arising on the police report and on the private complaint to be clubbed together and a single trial held on the strength of the decision of a Division Bench of this Court in Asokan v. Narayanan 1972 Ker LT 728. That decision was given in the light of the provisions of the Cri. P. C, 1898. While Section 193 of the 1898 Code provided for 'committal of the accused' to the Sessions, the corresponding section in the Code of 1973 contemplates 'committal of the case' to the Sessions. In this connection, the order of reference states:

Counsel for the petitioner contends that the change has made a substantial difference in the legal position and that when a 'case' is committed, it takes in all the relevant facts and the accused and that once there is a commitment there is no scope for committing the 'case' over again even if it involves a different accused on a subsequent private complaint as here, whatever other machinery there might be to join fresh accused in the Sessions trial. This aspect did not naturally fall to be considered in 1972 Ker LT 728. On account of that circumstance and on account of the importance of the question we think it desirable that the case is considered by a Full Bench.

4. The facts and, circumstances in Asokan's case were more or less similar to those in the present case. There were two committal orders, one on the basis of a police report and the other on the basis of a private complaint. In the private complaint case, there were certain additional accused besides the accused in the police charge case. The accused wanted the two cases to be clubbed together and a single trial held and that request was turned down by the Sessions Judge. When the order was challenged in revision before this Court, it came up for consideration before a Division Bench which dismissed the revision but took notice of the hardship that was likely to be caused to the common accused in facing two separate trials on the same charge arising from the same transaction, and observed that it could be possible for the Sessions Judge to devise ways and means to eliminate the hardship. The Division Bench also observed that there could be no difficulty in evidence being recorded in one case in the presence of all the accused and the same being treated as evidence in the other case. Of course, it was not a direction but only a suggestion. The learned Sessions Judge, evidently acting on the suggestion, recorded evidence of all the witnesses in one case in the presence of all the accused and treated the evidence as evidence in the other case. Both the cases ended in acquittal and the State challenged the acquittal before this Court. It was argued before the Division Bench that the procedure adopted by the Sessions Judge was illegal and this argument was accepted by the Division Bench which proceeded to hold that the only proper procedure to be adopted was to consolidate the two cases and to hold a single trial of all the accused. Since the procedure for committal proceeding arising on a police report and a private complaint was not the same the Magistrate could not have clubbed the cases. But once the committal orders are passed, the Sessions Judge should have clubbed the two cases together and held a single trial. The Sessions Judge was not required by law to hold separate trials unless a single trial was inhibited by Sections 232 - 239 of the Code and there was no prejudice to the accused. In arriving at this conclusion, the court sought support from the decisions of the Supreme Court in Banwari v. State of U.P. : AIR1962SC1198 and Khetra Basi Samal v. State of Orissa : [1970]1SCR880 where identical propositions had been accepted.

5. We have to state at this stage that the correctness of the above decisions in the light of the provisions of the 1893 Code has not been challenged before us. The contention urged by learned Counsel for the revision petitioner is that in view of the material changes brought about in the 1973 Code, the decision could not be applied to the trial of the Sessions cases after the enactment of 1973 Code and it is this question that we are called upon to examine in this case. We may also mention that learned Counsel for the revision petitioner contended, on the basis of certain observations in the judgment in Asokan's case (1972) Ker LT 728 and certain other decisions that where cognizance is taken by a Magistrate on the basis of a police report, cognizance cannot be taken for the second time on the basis of a private complaint and that being so, there could not be two committal proceedings or orders and the second committal order in the private complaint case itself would be illegal and consequently there could not be two sessions cases before the Sessions Court and if at all persons not figuring as accused in the police report are to be treated as additional accused, that could be done only under Section 319 of the 1973 Code corresponding to Section 351 of the 1898 Code.

6. It thus becomes necessary to have an idea about the relevant provisions in the two Codes. Section 2(d) of the 1973 Code defines 'complaint' as any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The identical definition is obtained in Section 4(h) of the 1898 Code except that it excludes the 'report of a police officer'. Section 170 of the 1973 Code deals with cases to be sent to Magistrate when evidence is sufficient and the procedure to be adopted therefor. The identical provision is obtained in Section 170 of the 1898 Code. Section 173 of the 1973 Code deals with the report of an officer on completion of investigation and the procedure to be adopted in that regard. The scheme of this provision was the same in Section 173 of the 1898 Code. However, the present Code incorporates Sub-section (8) which is a new provision, making it clear that even after submission of a final report, upon further investigation if further evidence is obtained further report or reports shall be forwarded to the Magistrate regarding such evidence and in this regard the other provisions of the section would apply.

7. Taking cognizance is covered by Section 190 of the 1973 Code and also Section 190 of the 1898 Code. The Magistrate may take cognizance upon receiving a complaint of facts constituting an offence or upon a police report (1898 Code mentioned a report by a police officer) or upon other information received. The further proceedings on the Magistrate taking cognizance are dealt with in the succeeding provisions and in this behalf there has been no substantial change in the 1973 Code. Section 193 of the two Codes deals with the taking of cognizance of offences by Sessions Courts in the same manner. Except as otherwise exclusively provided by the Code or by any other law, no Sessions Court can take cognizance as a court of original jurisdiction unless the accused has been committed to it by a competent Magistrate. We may mention that Section 351 of the 1898 Code and Section 319 of the 1973 Code are, so to say, exception to this rule. Section 351 of the 1898 Code empowered all criminal courts to detain any person attending the court for the purpose of enquiry into or trial of any offence and to proceed, against him, as though he has been arrested or summoned. In the corresponding provision of the 1973 Code namely, Section 319, there is a marked change. Under Section 319. any court, in the course of enquiry or trial, may proceed against any person not being the accused if it appears from the evidence that such person has committed any offence for which he could be tried together with the accused. This provision is not confined to persons who are actually in attendance in court. Sub-section (4) (b) states that the case may proceed, as if such person had been an accused person when the court took cognizance of the offence, upon which the enquiry or trial was commenced. In other words, with reference to the proceeding in Sessions Court, it has to be taken that the person against whom process is issued by the Sessions Court, though not figuring as an accused till then, is deemed to have been an accused when the Sessions Court takes cognizance of the offence. It is needless to say that the Sessions Court takes cognizance on committal by the competent court.

8. Section 200 of the two Codes explains how the Magistrate taking cognizance of an offence on complaint should proceed. The complainant except in cases indicated in the section, has to be examined on oath and. the witnesses present, if any, have to be examined. Section 202 of the two Codes deals with postponement of issue of process. Section 202 of the 1898 Code empowered the Magistrate on receipt of a complaint to postpone the issue of process for compelling the attendance of the person complained against and either enquire into the case himself or direct an enquiry or investigation by a subordinate Magistrate or a police officer or such other persons as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. The only change made in the corresponding provision, Section 202. of the 1973 Code consists in mentioning the purpose as deciding whether or not there is sufficient ground for proceeding. Sub-section (2) (a) of Section 202 of the 1898 Code empowered the Magistrate if he thinks fit to take evidence of witnesses on oath. This provision has been retained in Sub-section (2) of Section 202 of the 1973 Code. But there are some changes brought about in this Code. In the case of an offence triable exclusively by the Sessions Court, no direction for investigation can be made. In the case of such an offence, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. This more or less corresponds to Section 208 of the 1898 Code.

9. Section 203 of the two Codes deals with dismissal of complaints, where there is no sufficient ground for proceeding. Section 204 of the two Codes deals with issue of process where, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. Section 207 of the 1973 Code requires, in the case of a proceeding instituted on a police report, the Magistrate to furnish to the accused copies of relevant documents. It has to be noticed that Section 207 applies to all cases, including cases involving an offence exclusively triable by Sessions Court. Section 208 deals with supply of relevant documents in the case of a proceeding instituted otherwise than on police report and involving an offence exclusively triable by court of Session. Section 209 states that in a case instituted on a police report or otherwise, when the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit the case to the Court of Session. The section also indicates the other procedure to be followed by the Magistrate in such cases. These provisions of the 1973 Code are in replacement of Sections 207, 207(a), 208, 213 etc. of the 1898 Code. There is a marked departure in this behalf in the 1973 Code. The committal proceeding as contemplated in the 1898 Code has been drastically pruned. There is no longer any question of recording evidence in a case arising on police report. What the provisions of the 1898 Code contemplated was an order committing the accused for trial by the Sessions Court and not an order committing the case for trial by the Sessions Court.

10. Section 210 of the 1973 Code is a totally new provision. According to this provision, when a complaint case is instituted before a Magistrate and it appears to him that a police investigation is pending in relation to the same offence, the Magistrate has to stay the proceedings arising on the complaint and call for a police report. Where the police officer makes a report under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate has to enquire into or try together the complaint case and the case arising under the police report as if both the cases were instituted on the police report. This provision is intended to prevent duplication of proceedings. Chapter XVIII of the 1973 Code deals with trial before Court of Session. The corresponding chapter in the 1898 Code is Chapter XXIII. Consistent with the changes in relation to committal proceedings brought about by the 1973 Code, there are corresponding changes in relation to trial before Court of Session also. But both the Codes are uniform in laying down that in every trial before the Court of Session, the prosecution shall be conducted by the Public Prosecutor.

11. Though the 1973 Code has brought about substantial change in regard to committal proceedings, the essential distinction between committal proceedings arising on police report and on private complaint has been maintained even now. Of course, in both cases, there is to be a sort of enquiry. In the case of committal proceeding arising On police report, the scope of enquiry is very limited. That is to find out if the averments in the police report disclose an offence exclusively triable by the Sessions Court. That, of course, is part of the process of enquiry. But in the case of committal proceedings arising on a private complaint, the procedure is substantially different and the complainant is required to bring all his witnesses to Court, to have their evidence recorded. Therefore, even under the 1973 Code, as under the 1898 Code, the question of consolidating committal proceedings, though relating to the same offence but arising on police report and private complaint, does not arise. Multiplicity of committal proceedings was something which could not be avoided under the 1898 Code and is something which cannot be avoided under the 1973 Code. Necessarily, passing of two separate committal orders is very much in the contemplation of the scheme of the 1973 Code also.

12. The argument advanced on behalf of the revision petitioner that where committal proceedings are initiated on the basis of police report, no party has a right to file a private complaint and consequently there could not be a parallel committal proceeding on the basis of a private complaint, does not stand scrutiny. Where an offence exclusively triable by Sessions Courts, leads to a police report and a private complaint, it is not quite correct to say that initiation of two different proceedings of committal cases involves taking cognizance twice. To hold otherwise would be to approach the concept of taking cognizance in a mechanical way. As explained by the Supreme Court in Ajit Kumar Palit v. State of West Bengal (1963) Supp 1 SCR 953 : 1963(1) Cri LJ 797, 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 judicially. The word 'cognizance' has been used in the Code to indicate the point when a Magistrate or Judge takes judicial notice of an offence. It does not involve any formal action or indeed action of any kind, but occurs as soon as the court applies its mind to the suspected commission of an offence. As explained by the Supreme Court in Raghu Bans Dubey v. State of Bihar : 1967CriLJ1081 , cognizance is taken of the offence and not merely of particular persons named in the charge-sheet. The same idea has been carried forward by the Supreme Court in Joginder Singh v. State of Punjab : 1979CriLJ333 while dealing with the significance of committal of an accused and committal of a case. Tulzapurkar J. speaking for the court, observed (Para 6):

It is true that there cannot be a committal of the case without there being an accused person before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once the case, in respect of the offence qua those accused who are before the Court is committed then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led, during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it;

(Emphasis supplied)

13. If 'taking cognizance' means only 'becoming aware of' or 'taking judicial notice of' an offence, whatever might be the situation in a given case, in law the Magistrate takes cognizance or becomes aware of an offence only once. In that sense, it is correct to say that Magistrate cannot take cognizance of an offence twice. When on the basis of a police report or private complaint or otherwise, a Magistrate takes cognizance of an offence, he becomes aware of the commission of the offence and that awareness will certainly continue or at any rate in the eyes of law, be deemed to continue. In such state of affairs, the commission of an offence is again brought to his notice, say by way of private complaint; strictly speaking, he does not take cognizance of the offence again but exercises his judicial power and proceeds with that case in pursuance of the cognizance already taken by him on the previous occasion. It may, perhaps, be that where the provisions of the Code compel adoption of two different procedures in two cases arising with reference to the same offence, he may have two cases on his file and- proceed differently; or where consolidation of the two cases is allowed, he may have to hold a single enquiry or trial. Either way, it cannot be said that he takes cognizance of the same offence twice. Having taken cognizance of an offence once, he applies his judicial mind, follows the procedure prescribed by the Code and decides whether to issue notice or to drop the proceedings. Where he decides to proceed with a case and meanwhile the commission of the offence is again brought to his notice by another agency or person with a contention that the offence involves certain more acts and more persons than as alleged in the case originally brought to him, it is his duty to look into those allegations and decide if he is to issue process and conduct an enquiry or trial, as the case may be. This, in the eye of law, does not amount to taking cognizance of the same offence twice and if, broadly speaking, it can be said to amount to taking cognizance of the offence twice, we are unable to find any provision in the Code (whether of 1898 or 1973) inhibiting such an action. We find, that the observations to the contra in Asokan's case 1972 Ker LT 728 are too broadly stated. This, however, does not mean that in all such cases, Magistrate is to hold two separate enquiries or trials. Whether separate enquiries or trials are to be held or whether the proceedings are to be consolidated is a matter for the Magistrate to decide in the light of the relevant provisions of the Code.

14. We are supported in this view by the provision in Section 210 of the 1973 Code, a provision which was absent in the 1898 Code. The section reads as follows:

210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. - (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case) it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under Section 173 and, on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both these cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

The section contemplates a particular situation to which the provisions are applicable. A case instituted otherwise than on a police report, say on a complaint, must be pending before a court. During the course of the inquiry or trial held by the Magistrate, it must appear to him that an investigation by the police is in progress in relation to the offence involved in the case pending before him. In such a contingency, the Magistrate has to stay the proceedings of inquiry or trial and call for a police report. If such a report is made under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the pending case, that is. the complaint case, the Magistrate has to inquire into or try both the cases together, as if both were instituted on the police report. Of course, if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial pending before him. When it is stated that a complaint case must be pending before the Magistrate and he gathers some information during the course of the inquiry or trial, it must necessarily follow that he had already taken cognizance of an offence in the complaint case. Where he calls for a police report, it is for him to consider whether the police report does or does not relate to any accused in the complaint case and whether to take cognizance of any offence on the police report or not. Where he takes cognizance of an offence on the police report and the report relates to any accused in the complaint case, then consolidation follows. There is no provision to the effect that he shall not take cognizance of the offence once again on the police report. Evidently, the expression 'taking cognizance' in this context is used in the broad and general sense of 'becoming aware of' the commission of an offence. This would clearly show that the scheme of the Code does not inhibit taking cognizance of an offence twice. The provision is not that the case on the police report alone shall proceed and that the complaint case should be thrown out. Under the scheme of the provisions of the Code, any person is entitled to approach the criminal court with a view to bring to the notice of the court the commission of an offence punishable under law. The only restriction appears to be the restrictions contained in Sections 195 - 199 of the Code. Perhaps, there would be other restrictions found elsewhere in the Code or in other laws. Subject to these and other similar restrictions, an aggrieved person has a right to approach the criminal court to bring to the notice of the court the commission of an offence. That right is preserved, by Section 210 of the Code even where the police investigation is pending. It is well recognised by judicial decisions that even where a final report by an investigating officer is laid, the person concerned, who is aggrieved by one or the other aspect of the police report, is entitled to approach the court with a private complaint. This right has been upheld, by a Full Bench of this Court in a recent decision in Augustine v. State 1982 Ker LT 351 : 1982 Cri LJ 1557. It is no doubt true that the criminal court has been invested with the power under Section 319 of the Code, during the course of an inquiry or trial into an offence, to proceed against any person who does not figure as an accused. This is an enabling provision conferring power on the court. That does not take away the right of an aggrieved person who is dissatisfied with the police report to approach the criminal court. Our attention has not been invited to any provision in the Code or any other law (barring of course the restrictions already referred to) which are to the effect of denying an aggrieved person the right to approach the criminal court even when police investigator has submitted a final report. This, of course, does not necessarily mean that a citizen has control over the conduct of the case at any or all stages. We have already indicated the unambiguous provision in the Code to the effect that the prosecution in every trial before the Court of Session shall be conducted by the Public Prosecutor. The prosecution cannot be conducted by a private prosecutor. To that extent, the rights of the citizen are, no doubt, curtailed. But his right to approach the criminal court, that is, the Magistrate's court, cannot be denied,.

15. In this case, the complainant was dissatisfied with the police report inasmuch as according to him, the police report excluded from the array of accused some persons who were really guilty. Whether the Magistrate purported to take cognizance of the offence for the second time on the private complaint or not, he was justified in taking the case, on private complaint, on file and conducting the committal proceedings in accordance with the provisions of the Code parallel to the committal proceedings on the police report. In these circumstances, there will be nothing wrong in the Magistrate passing two separate committal orders.

16. Learned counsel for the revision petitioner places reliance on the decisions in Ram Lagan Singh v. State of Bihar 1980 Cri LJ NOC 62 and Essakutty Haji v. Raman 1974 Ker LT 744. The former is a decision of a learned single Judge of the Patna High Court. In the first paragraph of the short notes, it is stated, and it appears to us, with respect, rightly too, that:

Where cognizance taken on police report does not relate to a person against whom complaint is pending, the Magistrate after taking cognizance on the' police report can proceed with the enquiry relating to that person. Section 210(3) does not prohibit the Magistrate from proceeding under Section 209 with regard to an accused against whom there is neither a police report nor cognizance on such report.

In a later paragraph, the learned Judge observed that:

Where cognizance is taken of an offence on police report filed pursuant to information given to them and subsequently with regard to the same offence a protest petition of the complainant is treated as a complaint and cognizance is taken, it is obvious cognizance cannot be taken twice over on the same offence. It is no argument that the police case and the complaint case are two distinct proceedings.

We have already dealt with the controversy in this behalf and have taken the view that it does not involve taking cognizance once again and even if it is so interpreted, there is no bar against any such proceedings. With respect, we are unable to agree with the view taken by the learned single Judge.

17. Essakutty Haji's case did not deal with any offence triable exclusively by the Sessions Court. The offences involved were all offences triable by a Magistrate. The Magistrate took cognizance of the offence on the basis of a police charged and refused to take cognizance on the basis of a later private complaint where certain additional person were shown as accused. It has to be seen that the facts in the case were reverse of the situation contemplated under Section 210 of the Code. A Division Bench of this Court observed that Section 210 incorporated only a preventive measure to avoid as far as possible taking cognizance of the same offence again and to avoid separate trials for the same offence and if the preventive measure proves successful, occasion may not arise at all to resort to the curative process and the provisions in Section 210 are in perfect accord with the principles laid down in Asokan's case (1972 Ker LT 728), that the proper course for a Magistrate taking cognizance under Section 191 of the Code, of any offence, irrespective of the nature of its trial, is to take cognizance of it only once and since that was what the Magistrate did in the case, the court declined to interfere in revision. We have already indicated that the observations in this behalf contained in Asokan's case are formulated in too broad a manner and that where a Magistrate acts on a subsequent private complaint, it does not amount to taking cognizance twice and even if it be so, there is no bar provided by the Code against such action. Further the facts in Essakutty Haji's case did not attract the provisions of Section 210 of the Code. Section 210 of the Code deals with a case where pending a case arising on a private complaint, it is brought to the notice of the court that a police investigation is in progress. That does not cover a case where after the police charge is filed, an aggrieved person approaches a criminal court with a private complaint with a slightly different version of the same transaction or implicating more persons than are found as accused in the police charge. In such a situation, the provisions in Section 210 of the Code are not attracted. We are not called upon in this case to state in what manner the Magistrate has to dispose of the two cases arising on police report and a private complaint in relation to an offence not exclusively triable by the Sessions Court. We arc concerned in this case only with an offence exclusively triable by Sessions Court. We have already indicated that in such instances, there could be two criminal cases each arising on a police report and a private complaint followed by two committal orders and the two cases being clubbed together for a single trial by the Sessions Court. In our opinion, the Division Bench in Essakutty Haji's case was not called upon to decide what exactly is the position in regard to such cases involving offences exclusively triable by Sessions Court, and the observations, therefore, did not actually arise on the facts of the case and do not represent the correct position,

18. Much is sought to be made out of the change in phraseology in Sections 193 and 209 of the Code of 1973 com-pared with the parallel provisions in the Code of 1898. The former Code contemplated 'committal of the accused' to the Sessions, while the latter contemplates committal of the case', to the sessions. The argument is that since the 1898 Code contemplated 'committal of the accused' there could be plurality of committal proceedings and since the 1973 Code contemplates only 'committal of the case' there could not be plurality of cases and committal proceedings. This depends on the meaning of the expression 'case' used in the present provision. As we understand the expression, it only means 'case presented to court and taken on file' and nothing more. The expression 'case' is not synonymous with occurrence of crime or transaction. The court can commit an accused to the Sessions or a case to Sessions but cannot commit a transaction or crime or an offence to the Sessions. 'Case' only means the case taken on file by the Magistrate on taking cognizance. Cognizance might have been taken on a police report or otherwise. Having taken cognizance of the offence under one of the provisions of Section 190 of the Code, the Magistrate may take on file another case initiated under the other clauses of Sections 191. We are unable to agree that substitution of the expression 'accused' by the expression 'case' in these provisions postulates an inhibition against taking two cases on file or having two committal proceedings or passing two committal orders.

19. This view in regard to the meaning of the expression 'case' finds support in the observations of the Supreme Court in Joginder Singh's case 1979 Cri LJ 333. That case dealt with the application of Section 319 of the Code and the powers of the Sessions Court to apply the provision. Dealing with the changes in Sections 173 and 209 and their significance, the Supreme Court observed as follows (Para 6):

It will be noticed, that both under Sections 173 and 209, the commitment is of the case and not of the accused whereas in the equivalent provision of the old Code, namely, Sections 173(1) and 207A, it was the accused who was committed and not the case. It is true that there cannot be a committal of the case without there being an accused person before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once the case in respect of the offence qua those accused who are before the Court is committed) then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed) must be regarded as incidental to such cognizance and a part of the normal process that follows it;

(Empasis supplied)

The idea is expressed in the words 'the case in respect of the offence qua those accused'. This only indicates the particular case before the court and not the entire case relating to a particular offence. So, there could be plurality of cases in regard to the same offence leading to plurality of committal proceedings and orders. The word, 'case' cannot be interpreted in a narrow and technical way. It has to be understood in the general sense of the term and if so understood, provides an adequate answer to the question involved in the case, as we have already shown. We are not prepared to accept as correct, the proposition that the jurisdiction of the Magistrate is exhausted, once he passes a committal order.

20. This conclusion is strengthened by an understanding of Sub-section (8) of Section 173 of the Code of 1973. Section 173 of the Code of 1898 did, not contain a parallel provision. Section 173(8) reads thus:

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forward-ed to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further re-port or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

It deals with a situation after a police charge or a final report is submitted as contemplated, under Sections 173(2). There could be further investigation in respect of the same offence, that is, offence covered by the police report already submitted and where further evidence is obtained ,the investigating officer has to forward to the Magistrate further report or reports regading such evidence and in regard to such further report or reports, the provisions of Sub-sections (2) to (6) shall apply as far as may be, as they apply regarding the original report. We can conceive of a situation where the Magistrate has taken cognizance on the basis of an original police report and subsequently further report or reports arc submitted, by the investigating officer indicating more evidence or implicating additional accused. Such further report or reports shall be treated as police reports within the meaning of Section 173(2). Naturally, that has to be followed by the application of provisions of Chapter XVI of the Code, such as issue of summons or warrant, supply of copies of records to the additional accused etc., and enquiry or trial, as the case may be. There is no reason to hold that Sub-section (8) of Section 173 of the Code applies only to an offence triable by Magistrates and not to offences exclusively triable by Sessions Courts. Where such reports are submitted in relation to offences exclusively triable by Sessions Courts and where a committal order has already been passed on the basis of the original report, necessarily, there must be another committal proceeding followed by a fresh committal order, Thus, plurality of committal proceedings and committal orders are within the contemplation of the provisions of the Code.

21. The result is, we hold that in situations like the present, there could be two committal proceedings followed by two committal orders. The Sessions Judge has to take cognizance on such committal orders and once he takes cognizance, he has to consolidate the two cases and hold a single trial and that is precisely what the Sessions Judge in this case directed. We find no ground to interfere.

22. The last contention urged by learned Counsel for the revision petitioner is that in the F. I. R., the persons subsequently shown as additional accused in the private complaint were also shown as accused, that in the final report of the police these persons were dropped from the array of accused and the Magistrate took cognizance of the offence on the basis of such final report and that involves an implied discharge of such persons. Therefore, it is contended that against such persons, there cannot be a fresh proceeding. We are unable to agree, with this contention. In a parallel situation which arose in Dr. S. S. Khanna v. Chief Secretary Patna : [1983]2SCR724 . the Supreme Court declined to countenance such a contention. In that case, a complaint was preferred, against two persons, that is the appellant and another. The Magistrate took the view that there was no prima facie case to proceed against the appellant and declined to proceed against him but took cognizance of the offence against the other person and issued process against him. However, in the course of the enquiry, evidence was placed before the court implicating the appellant also and under Section 319 of the Code, the Magistrate issued process against the appellant and the legality of this proceeding was challenged. Following the decision of the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohatgi : 1983CriLJ159 , the Supreme Court held that there was no legal bar and the autrefois principles cannot apply to the facts of the case. In Delhi Municipality case, the Food Inspector laid a complaint against three respondents and the Supreme Court agreed that process should not have been issued to one of them. However, the Supreme Court made it clear that notwithstanding the decision of the Court not to issue process against one of the accused, at a later stage if evidence would be available against that person, the court would have jurisdiction to proceed against hint also. We also refer to another decision of the Supreme Court in Raghu Bans Dubey's case (1967 Cri LJ 1081). In that case. F.I.R, implicated 15 persons and during investigation one of them set up an alibi, the investigator accepted the alibi and ommitted his name from the final report and cognizance of the offence was taken on the basis of the final report and processes were issued only against others. Subsequently, the court issued process against him also on the basis of the evidence before it. The Supreme Court held that there is nothing illegal in the procedure adopted; by the Magistrate. We therefore reject this contention.

In the result, we dismiss the criminal revision petition.


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