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Madhavan Nambiar and ors. Vs. Govindan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1982CriLJ683
AppellantMadhavan Nambiar and ors.
RespondentGovindan and anr.
Cases ReferredManiyani v. State of Kerala
Excerpt:
- - there are instances where aggrieved persons not satisfied with the investigation of their cases by the police approach the magistrate for redress by filing private complaints. the more reasonable course will be to hold that while it is open to the magistrate to drop proceedings and decline to take cognizance of an offence on the basis of a refer report by the police, in appropriate cases it is perfectly within his competence to ignore the police report and decide to take cognizance of the offence mentioned in the complaint......of an offence (a) upon receiving a complaint of facts which constitute such offence (b) upon a police report of such fact and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. under section 156(3), a magistrate empowered under section 190 may order the investigation of any complaint by the police. if any such case is sent for investigation, the police officer investigating the case should send a final report as provided in section 173 of the code, the argument put forward by the petitioner is that if the final report is to the effect that no offence has been committed the court should treat the matter as closed and should not to fall back upon the complaint and proceed with it (as provided in.....
Judgment:
ORDER

Ku. P. Janaki Amma, J.

1. On 7-2-1981 the first respondent filed a complaint before the judicial Magistrate of First Class, Theli-paramba alleging that the five petitioners formed themselves into an unlawful assembly and committed criminal trespass, theft and other offences. The Magistrate, on receipt of the complaint, passed the following order: 'Forwarded to the S. I. of Police, Irikur. for investigation and for report Under Section 156(3) Cr.P.C. Call on 23-2-1981'. Crime No. 8 of 1981 was registered on the basis of the complaint. The police, after investigation, referred the case as false. A report to that effect was presented before court on 13-4-1981. The Magistrate, on receipt of the report, posted the case for taking the sworn statement of the complainant. The sworn statement was recorded on 7-5-1981 and the case was being proceeded with as per the procedure in Chap. XV of Criminal P. C. (hereinafter referred to as the Code). The present petition filed Under Section 482 of the Code is for quashing the proceedings initiated by the Magistrate after receipt of the refer report. The stand taken by the petitioners is that once the court sent the case for investigation to the police Under Section 153(3) of the Code, there is a merger of the complaint with the investigation and the court is bound to accept the refer report which is the result of investigation and put an end to the proceedings. Further action by way of cognizance of the offence is to be taken by the Magistrate only in case a fresh complaint is filed on the same facts, challenging the refer report.

2. The point to be considered is whether the Magistrate can take cognizance of an offence after the police filed a refer report on a complaint sent for investigation Under Section 156(3). Section 190 of the Code deals with powers of the Magistrate to take cognisance of an offence. Under that section the Magistrate may take cognizance of an offence (a) Upon receiving a complaint of facts which constitute such offence (b) upon a police report of such fact and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Under Section 156(3), a Magistrate empowered Under Section 190 may order the investigation of any complaint by the police. If any such case is sent for investigation, the police officer investigating the case should send a final report as provided in Section 173 of the Code, The argument put forward by the petitioner is that if the final report is to the effect that no offence has been committed the court should treat the matter as closed and should not to fall back upon the complaint and proceed with it (as provided in Chap, XV of the Code) except in cases where a fresh complaint on identical facts is received. No doubt the practice followed in most of the courts is to close the matter on the basis of the refer report and to take it up afresh if and when a protest complaint is filed. The practice has its basis on the assumption that when the police finds the case to be false and reports accordingly, the Magistrate is not in legal seisin of anything. He gets seisin of the matter again only if a fresh complaint is filed. (See Akshoy Kumar v. Jogesh Chandra AIR 195(5 Cal 76 :1956 Cri LJ 505(2)). There is however no provision in the Code which prescribes the above procedure or debars the Magistrate from taking further action. Since the word used in Section 190 is 'may', it is no doubt open to the Magistrate to decline to take cognizance of an offence if after investigation the police reports the case as false. That does not mean that it is incumbent on the Magistrate to accept the police report and refuse to take cognizance of the offence disclosed in the complaint.

3. The Code does not define the expression 'take cognizance'. But that expression has been judicially interpreted in a series of decisions. A Magistrate is said to have taken cognizance of an offence when he takes judicial notice of the offence and decides to deal with it himself. The oft quoted dictum of Das Gupta J., in Supdt. & Remembrancer of Legal Affairs, W. B. v. Abani Kumar : AIR1950Cal437 is of much assistance in understanding the expression;

What is taking cognizance has not been defined in the Cri, P, C. and have no desire to attempt to define it. It seems to be clear however that before it can be said that any Magistrate has taken cognizance of any offence Under Section 190(1)(a), Cr.P.C. he must 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 inquiry and report Under Section 202. When the Magistrate applies his mind not for the puspose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e. g. ordering investigation Under Section 156(3), or issuing a search warrant for the purpose. of the investigation he cannot be said to have taken cognizance of the offence.' ; The above dictum has been approved by . the Supreme Court in R. R. Chari v. i State of U. P. : 1951CriLJ775 and also in Naravandas' Bhagwandas v. State of W. B. : 1959CriLJ1368 . In the latter case the Supreme Court Droceeded to say:As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance, issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding Under Section 200 and subsequent sections of Ch. XVI of the Code of Criminal Procedure or Under Section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.

To the same effect are the subsequent decisions of the Supreme Court; See Gopal Das v. State of Assam AIR 1981 SC 986:1961(2) Cri LJ 39): Jamuna Singh v. Bhadal Shah : 1964CriLJ468 : Darshan Singh Ram Kishan v. State of Maharashtra, 1971 SCC (Cri) 628:1971 Cri LJ 1697) Mown v. Supdt. Special Jail, Now-gong, 1972 SCC (Cri) 184; and Nirmal-jit Singh Hoon v. State of W. B. : [1973]2SCR66 .

4. When a complaint is received by a. Magistrate he has two courses open before him: he may send it for investigation Under Section 156(3) or he may examine the complainant and follow the procedure in Chap. XV and Chap, XVI of the Code, In the former case there is no application of the mind by the Magistrate for proceeding Under Section 200 and subsequent sections of Chap. XV or Section 204 of Chap. XVI of the Code, (which correspond t0 Chaps. XVI and XVII of the Code of 1898). In the latter case there is such application of the mind, ft follows that in the former case the Magistrate does not take cognizance of the offence while in the latter case he does, Even after examination of the complainant it is open to the Magistrate to postpone the issue of process and to send the complaint for investigation by the police under Section 202(except in cases triable exclusively by the Court of Session). The power of the Magistrate to order investigation by the police can thus, be exercised either at the pre-cognizance stage or at the post cognizance stage, The purpose of investigation at the pre-cognizance stage is only to enable the Magistrate to decide whether he should take cognizance of the case. What the Magistrate does in such cases is to keep aside the complaint and postpone his decision whether he should take cognizance of the offence. There is no merger of the complaint with the investigation, and therefore there is no question of revival of the complaint. Since the investigation by the police and trial by the Magistrate are mutually exclusive, there is nothing standing in the way of the Magistrate in ignoring the police report Under Section 156(3) and proceeding with the complaint. It must be borne in mind that the Magistrate cannot compel the police to submit a charge-sheet on a final report being submitted by the police. If that be so, to hold that the Magistrate has no power to take cognizance of a case once the police files a refer report, will be to leave the disposal of the case exclusively to the hands of the police. There are instances where aggrieved persons not satisfied with the investigation of their cases by the police approach the Magistrate for redress by filing private complaints. In such cases it is open to the Magistrate to send the complaint for further investigation and report. Very often the police would file a report consistent with the action already taken. To hold that the Magistrate should accept the police report and drop further action would be to defeat the purpose of the private complaint. The more reasonable course will be to hold that while it is open to the Magistrate to drop proceedings and decline to take cognizance of an offence on the basis of a refer report by the police, in appropriate cases it is perfectly within his competence to ignore the police report and decide to take cognizance of the offence mentioned in the complaint. If he decides to take cognizance he may examine the complainant, and then proceed further as provided in Chapters XV and XVI of the Code. That this is what the Magistrate has done on this case is clear from the fact that pending reports of investigation he posted the case to 23-2-1981.

5. The Supreme Court had occasion to decide a similar question in Tula Ram v. Kishore Singh, 1977 SCC (Cri) 621 : 1978 Cri LJ 8. In that case the Magistrate received a complaint alleging offences triable by Court of Session. On receipt of the complaint the Magistrate ordered the case to be investigated by the police. The police filed a final report indicating that no case was made out against the accused. The court after considering the report directed the complainant to appear before court. When the complainant appeared, the court examined him and issued process against the accused. The accused moved the High Court for quashing the proceedings. The matter ultimately came before the Supreme Court. The Supreme Court held (at p. 12);

Where a Magistrate orders investigation by the police Under Section 156(3) before taking cognizance and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action Under Section 190. On the facts of the case there is nothing to show that the Magistrate had taken cognizance of the complaint. Even though the complaint was filed before the Magistrate, he did not pass any order indicatinfl that he had applied his judicial mind to the facts of the case for the purpose of proceeding with the complaint. What he had done was to keep the complaint aside and order investigation even before deciding to take cognizance on the basis of the complaint. After the final report was received the Magistrate decided to take cognizance of the case on the basis of the complaint and accordingly issued notice to the complainant.

The Supreme Court further held:

The action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the accused.

6. Identical is the position in the present case. The contention, that the Magistrate had no jurisdiction to issue process, after the police filed a refer report, is therefore not sustainable.

7. It is then pointed out that the complainant in this case has not furnished a list of witnesses and therefore there has been contravention of Section 204(2) of the Code, which directs that as summons or warrant should be issued against the accused until a list of prosecution witnesses has been filed. It is however noted that even though a separate list of witnesses has not been filed, the complaint itself mentions the details of the persons who witnessed the occurrence. The purpose of Section 204(2) is to convince the court that there are proper materials to support the case and to enable the accused to know in advance what are the materials that the complainant is likely to produce against him. If this purpose is served otherwise, the omission to file a list of witnesses will not vitiate the proceedings. At the most what can be stated is that the court may insist on a list of witnesses being filed and refuse to issue process before such a list is made available. Reference. may be made to the decision of the Supreme Court in Mowu v. Supdt. Special Jail, Nowgong, 1972 SCC (Cri.) 184, a case which arose Under Section 204(1-A) of the Code of 1898. A similar contention was raised in that case regarding the non-production of the list of witnesses. The Supreme Court overruled the objections and observed:

It is true that Section 204(1-A) requires that a Magistrate shall not issue a process until a list of the prosecution witnesses has been filed before1 him. This provision is intended to be a safeguard for an accused person so that he knows beforehand what evidence is likely to be produced against him. Before the Magistrate issued the warrant he had both the complaint and the first information report before him which presumably contained particulars of the various offences charged against the petitioner, and in this particular case, the manner and the circumstances in which he was arrested as also the persons who apprehended him, the materials, that is to say, the arms and ammunition, and various documents seized from him at the time of his arrest. The complaint and the first information report, therefore, would disclose the evidence which would be relied upon by the prosecution although a list of witnesses might not have been filed before the Magistrate. Section 204 has also been the subject matter of interpretation by this Court in Maniyani v. State of Kerala, 1979 Ker LT 183. It was held that mention in the complaint itself of the names of witnesses would be sufficient compliance of Section 204(2) of the Code and that non-compliance of the provision does not automatically result in invalidating consequences or vitiate the entire trial, unless it has resulted in preiudice to the accused. In the light of the above decisions the contention that the complaint should not have been acted upon in view of the non-compliance of Section 204(2) of the Code has no force.

In the result, the petition is dismissed.


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