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State of Gujarat Vs. Saubhabjyachand Kanji and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR138
AppellantState of Gujarat
RespondentSaubhabjyachand Kanji and anr.
Excerpt:
- .....mandvi-kutch took cognizance on a police report of an offence under rule 125(9) of the defence of india rules. the learned sessions judge of kutch has made a reference saying that the offence is a non-cognizable offence and no cognisance should be taken by the magistrate upon a police report. under section 190(1) of the criminal procedure code, the magistrate can take cognisance 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; and (c) upon such information received from any person other than a police officer or upon his own knowledge or suspicion, that such offence has been committed. when a magistrate can take the cognisance of an offence even on suspicion, it is not open to any.....
Judgment:

V.B. Raju, J.

1. The learned Judicial Magistrate, First Class, Mandvi-Kutch took cognizance on a police report of an offence under Rule 125(9) of the Defence of India Rules. The learned Sessions Judge of Kutch has made a reference saying that the offence is a non-cognizable offence and no cognisance should be taken by the Magistrate upon a police report. Under Section 190(1) of the Criminal Procedure Code, the Magistrate can take cognisance 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; and (c) upon such information received from any person other than a police officer or upon his own knowledge or suspicion, that such offence has been committed. When a Magistrate can take the cognisance of an offence even on suspicion, it is not open to any one to say that the Magistrate erred in taking cognisance of a particular offence. In this case, there was a report of the police. That itself is sufficient to create suspicion in the mind of the Magistrate that such an offence may have been committed. So cognisance of the offence may have been taken under Section 190(1)(c) of the Cri. P. C. This is sufficient to dispose of these References.

2. In addition, however, I might say that the present offence is a cognisable offence because as stated in Schedule II to the Cri. P. C, the police can arrest the accused without a warrant for any offence punishable with imprisonment for more than three years, and the offence under Rule 125(9) of the Defence of India Rules is punishable with three years' R.I. and therefore that offence is a cognisable one. It is true that Rule 152 of the Defence of India Rules enumerates certain offences against the Defence of India Rules, in which the police can arrest the offender without a warrant. As originally stood, the object of Rule 152 of the Defence of India Rules was to enlarge the area of offences in which the police could arrest the offender without a warrant. In the case of certain rules also, the police can arrest the offender without a warrant under the Cri. Pro. Code and under Section 190(1)(c) Cr. P. C. the Magistrate can take cognisance of the offence. As originally stood, in Rule 152 of the Defence of India Rules the offences enumerated are punishable with less than 3 years' imprisonment. But it appears that in 1962 an amendment was made by adding Rule 126A of the Defence of India Rules. We are not now concerned with the scope of the amendment or the object of the amendment. That amendment does not change the original intention of the original rule. It is therefore clear to my mind that the offence under Rule 125(9) of the Defence of India Rules is a cognisable one under the Cri.P.C. and there is nothing in Rule 152 which is inconsistent with that position.

3. The reference are therefore rejected.


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