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Raju Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1980CriLJ896
AppellantRaju
RespondentState of Rajasthan
Cases ReferredAbhinandan Jha v. Dinesh Mishra
Excerpt:
.....even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report setting out the facts constituting the offence. therefore, these circumstances will also clearly negative the power of a magistrate to call for a charge-sheet from the police, when they have submitted a final report. the knowledge that a person is poor, knowledge of his poverty. it may be a weak or strong belief. if strong, decided conviction, we may call it 'knowledge' and yet it is only belief. moreover, if the affidavit was defective in any manner, the high court, instead of dismissing the petition in limine, should have given the petitioner a reasonable opportunity to file a better affidavit which would comply with the..........of a crime, but is unable to proceed in the ordinary way owing to the absence of any complaint or police report about it. keeping in view the object of this clause, (1 am of the opinion that any restricted meaning put on the word 'knowledge is likely to defeat this salutary provision of law. i am, therefore, of the view that the magistrate can derive his own knowledge of the offence from the police records placed before him. the supreme court in the authority of abhinandan jha v. dinesh mishra : 1968crilj97 (supra) has observed that on the basis of police records placed before a magistrate, he can take cognizance, if he has reasons to suspect that an offence has been committed. thus, their lordships of the supreme court meant that cognizance under section 190(1)(c) can be taken on the.....
Judgment:
ORDER

S.N. Deedwania, J.

1. This revision in preferred against the order dated 21-8-1974 of learned Judicial Magistrate, Bikaner, dismissing the petitioner's application for revoking the order of taking cognizance dated 16-7-1973, against him under Section 304A, I.P.C.

2. The facts briefly stated are these: that in a case under Section 304A, I.P.C. the police presented a final report before the Judicial Magistrate, Bikaner. The learned Magistrate disagreeing with the opinion of the S. H. O. took cognizance of the offence under Section 304A, I.P.C. against the accused-petitioner, on 16-7-63 who, thereafter, presented an application that the Magistrate has no jurisdiction to take cognizance of offence under the Cr.P.C. 1973 (hereinafter referred to as the new Code) and therefore, the order should be revoked. The learned Magistrate rejected this application of the accused-petitioner while holding that even under the new Code, he has the power and jurisdiction to take cognizance of the offence under Section 190(1)(c) of it.

3. It was argued by the learned Counsel for the accused-petitioner that the learned Magistrate was in error in taking cognizance of the offence, because under Section 190(1)(c) of the new Code the words 'or suspicion', after the words 'his own knowledge' has been deleted, and therefore, the Magistrate could not take -cognizance on his own suspicion, against the accused-petitioner. The learned Publie Prosecutor opposed this contention and argued that the learned Magistrate could take cognizance of the offence on his own knowledge which is derived from the police papers and the final report submitted to him. This was permissible under Section 190(1)(c) of the new Code.

4. I have considered the rival contentions very carefully. It is no more open to doubt that in such eases the Magistrate could take cognizance under the Cr.P.C. 1898 (hereinafter referred to as 'the old Code'), as has been held by their Lordships of the Supreme Court in Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 . The relevant observation reads as under:-

Para 15: Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the Police, under Section 173, that no case is made out for sending up an accused for trial which report as we have already indicated, is called in the area in question, as a final report? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156(3), to make a further investigation. that is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The Police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b) notwithstanding the contrary opinion of the police expressed in the final report.

Para 16: In this connection, the provisions of Section 169 of the Code, are relevant. They specifically provide that even though, on investigation a police officer, or other investigating officer, is. of the opinion that there is no case for proceeding against the accused, he is bound, while releasing the accused, to take a bond from him to appear, if and when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police.

Para 17: We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh's case : 1955CriLJ526 that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is left to the Officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled notwithstanding the opinion of the police, to lake cognizance, under Section 190(1)(c) of the Code. that provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but; also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Section 190(1)(c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chap. XIV dearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the Officer in-charge of the police station and that opinion determines whether the report is to be under Section 170, being a charge-sheet or under Section 169, 'a final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate, The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. that will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either under Section 169 or under Section 170, depending upon the nature of the decision. Such a function has been left to the police under the Code.' It may be noted that in the original judgment Section 190(1)(c) exists and that. Section 190(1)(b) has been wrongly reported in Para. 15 See Ramchandra v. State of U. P. : AIR1971All155 .

5. However, it was argued by the learned Counsel for the accused-petitioner that in the aforesaid Supreme Court authority, it was observed that it was open to the Magistrate to take cognizance of the offence under Section 190(1)(e), alter having due regard to the final report and the police records placed before turn, if he has reason to suspect that an offence has been committed. Thus, the Magistrate could act on his suspicion that an offence has been committed, for taking the cognizance. Now, under the new Code the word ''suspicion' has been deleted from Section 190(1)(c), and therefore, cognizance of the offence could not be taken by the Magistrate on his suspicion regarding the commission of a crime.

6. On the other hand, it was argued that the Magistrate could derive knowledge of the offence on the basis of the final report and the police record placed before him, and thereafter might proceed to take cognizance of the offence.

7. I have considered the rival contentions carefully. In my opinion, the crucial question that arises for determination is with regard to the meaning of the word 'Knowledge', under Section 190(1)(c) of.the Code.

8. The learned Counsel for the accused-petitioner vehemently argued that the knowledge of the Magistrate would mean his ocular knowledge. In other words the knowledge must be based on witnessing of the event by the Magistrate The learned Counsel for the accused-petitioner drew my attention to the case of Autar Singh v. State 1978 Cri LJ NOC 15(c) (Delhi), wherein, it was thus observed:

In such situations the law as it stood prior to the new Code enabled the court to take cognizance of the offence under Section 190(1)(c) and also issue summons to persons other then the persons mentioned as accused in the police challan even on suspicion. In view of the expression 'on suspicion' the Magistrate had 'wide powers' but by the dropping of the expression 'or suspicion' the power of the Magistrate to act 'on suspicion' has been eliminated. In the circumstances of I he case allowing the proceedings to go on against the petitioner on the summons issued by the Magistrate would not on the facts yet unknown to the High Court be in consonance with law, justice or even fairness. The impugned order passed by Magistrate is, therefore, quashed under Section 482 of the Code.

I have gone through with these observations very carefully. The full report of the case is not available, and therelore, reasons which prevailed with his lordship, are not known. I beg to refer to another case Ganga Prasad v. State 1975 Cri LJ 1565 (All), wherein the observations are:

The word 'suspicion' means suspicion for which no cogent evidence or document is necessary, 'Knowledge' on the other hand includes either personal knowledge or knowledge derived from documents. Therefore, where on the first information report the investigating officer submitted a final report under Section 169 of the Code it is competent for the Magistrate to take cognizance of the offence on his own knowledge derived from the police papers and final report.

I am inclined to agree with this view. In my opinion, no restriction could be read in the word 'knowledge' that it ought to be derived by ocular seeing of the event. Such a restricted meaning of the word 'knowledge' is not warranted.

9. One of the meanings given in the Oxford Dictionary of the word 'knowledge'' is,

The fact of knowing a thing, state, etc., or (in general sense) a person; acquaintance; familiarity gained by experience.

Acquaintance with a fact, perception, or certain information of a fact or matter; state of being aware or informed; consciousness (of anything): The object is usually a proposition expressed or implied: e. g. the knowledge that a person is poor, knowledge of his poverty.

10. Knowledge has been variously explained as follows in Words and Phrases (Permanent Edition):

A person has knowledge of a fact if he has no sub-stantial doubt as to its existence. Restatement, Restitutien.

'Knowledge is defined as acquaintance with fact; state of being aware of something or of possessing information; hence, scope of information; as it has come to my knowledge. Autoni v. Fletcher. Mo-App 307 SW 2d 898, 905.

Knowledge' is the receiving of a mental, impression; the state of being aware, Crosby v. Wells 67 A 295, 302 73 NJ Law 790, Citing Wigmore, Evidence.

'Knowledge' means acquaintance with fact or truth; certain perception of truth; belief which amounts to, or results in, moral certainly, indubitable apprehension; information; intelligence. City of South Euclid v. Clapces 213 NE 2d 828, 832, 6 Ohio Misc 101.

A crime is 'made known' to an officer 'having jurisdiction', within statute requiring indictment to be filed within year after offence has been made known to such an officer, when facts which come to knowledge of the officer are such as to indicate to him that: it is his official duty to act or to see that an investigation of the alleged crime is instituted within his jurisdiction, 'knowledge' as used in the statute meaning actual notice as would put one upon inquiry. State v. Young 195 So 539, 541,.194 La 1061.

'Knowledge' as applied to a person receiving stolen goods, may be deduced from conduct and behavior, the character of the person from whom the goods are received, the character of the goods, and the hour when received. State v. Richmond 84 SW 880, 884, 186 Mo 71, citing Huggins v. People 25 NE 1002, 135 III 243, 25 Am St Rep 357; Frank v. State 6 So 842, 67 Miss 125; Hester v. State 15 So 857, 103 Ala 83; People v. Schooley 48 NE 536, 149 NY 99; Com v. Finn 108 Mass 466

'Knowledge' is nothing more then a man's firm belief, and is distinguished from 'belief' in that the latter includes things which do not make a very deep impression on the memory. The difference is ordinarily merely in degree. Hatch v. Carpenter 75 Mass' (9 Gray) 27 Ik 274.

'Knowledge' within the meaning of law, may consist of credible information on material facts and circumstances of transaction such as to enable litigant to form a reasonable belief in relation thereto. Sackett v. Farmers' State Bank of Boone 228 NW 51, 54, 209 Iowa, 487.

There is no solid distinction between 'knowledge' and 'belief'. Practioally and mataphysically, the difference is only in degree of conviction on the evidence of the fact. Belief is the conclusion of the mind as to the existence of a fact. It may be a weak or strong belief. If strong, decided conviction, we may call it 'knowledge' and yet it is only belief. State v. Brtkeley 23 SE 608, 610, 41 W Va 455.

'Knowledge' is the means of mental impression; state of being aware. It is that which is given by information or intelligence, and is not confined to what is personally observed. Corrupt Practice Act must have been violated in candidate's interest, and he must have had 'knowledge'' thereof to deprive him of his nomination or election. Howard v. Whittaker 64 SW 2d 173, 250 Ky 836.

'Knowledge' may mean that gained by information or intelligence, and is not confined to what is personally observed. Davenport v. Prentice 110 ' NYS 1056, 1063, 126 App Div 451.

The case of Dwarka Nath v. Income-tax Officer, Special Circle. D-Ward, Kanpur : [1965]57ITR349(SC) is also to the point, wherein it was thus observed:

'Deponent's own knowledge in Rule 1(2) of Ch. XXII of the Rules is wide enough to comprehend the knowledge of the writ petitioner derived from a perusal of the relevant documents.

The affidavit in support of the writ application sworn by the pairokar and relative of the petitioner in express terms disclosed and specified the documents as the source of his knowledge. He swore in the affidavit that the documents annexed to the affidavit were true copies of public documents:

Held that it could not be said that the facts stated in the affidavit were not based on the deponent's personal knowledge. Moreover, if the affidavit was defective in any manner, the High Court, instead of dismissing the petition in limine, should have given the petitioner a reasonable opportunity to file a better affidavit which would comply with the provisions of Rule 1 of Ch. XXII of the Rules.

11. The object of Section 190(1)(c) is to enable a Magistrate to see that justice is vindicated notwithstanding that the persons individually aggrieved are unwilling or unable to prosecute. Hence, the proper use of the power conferred by the Clause is to proceed under it when the Magistrate has reason to believe the commission of a crime, but is unable to proceed in the ordinary way owing to the absence of any complaint or police report about it. Keeping in view the object of this Clause, (1 am of the opinion that any restricted meaning put on the word 'knowledge is likely to defeat this salutary provision of law. I am, therefore, of the view that the Magistrate can derive his own knowledge of the offence from the police records placed before him. The Supreme Court in the authority of Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 (supra) has observed that on the basis of police records placed before a Magistrate, he can take cognizance, if he has reasons to suspect that an offence has been committed. Thus, their lordships of the Supreme Court meant that cognizance under Section 190(1)(c) can be taken on the basis of the information contained in police records, placed before a Magistrate, if that is enough to impart a suspicion or knowledge to the Magistrate about the commission of the crime. In my opinion, that would be the true import of the authority. The only restriction which can now be read is that a cognizance of the offence would be unwarranted if the information is not sufficient to import knowledge of the offence and only raises suspicion. The question thus is of degree only. However, it was contended that the Magistrate was precluded to take cognizance under Section 190(1)(c) upon the information received from a police officer. The final report and the police record along with it is nothing but an information submitted by the police officer to the Magistrate. This argument is misconceived inasmuch as, in the case of Abhinandan Jha, (Supra), the Supreme Court has decided that upon such a final report and the police records cognizance of the offence can be taken by the Magistrate, under Section 190(1)(c) of the Code. In my opinion, the reason for this decision is that the words 'upon the information received from any person, other then a police officer' must be read with the word 'that such offence has been committed.' If the information given by a police officer is that an offence has been committed by an accused the Magistrate cannot take cognizance under Section 190(1)(c). If, however, the information given by the police officer is to the effect that no offence has been committed and from this information received by the Magistrate, he derives knowledge that an offence has been committed, he has ample jurisdiction to take cognizance of the offence under this Clause:

Though information received from any person may form the basis for the taking cognizance under the first part of CI. (c), information received from a police officer has specifically been excluded from the ambit of that clause. A report of a police officer cannot therefore form the basis for the talcing cognizance under Clause (c). If cognizanee has to be taken on the basis of such report, that will be deemed to have been done under Clause (a) or (b). But in submitting the report, the police officer also in a way brings certain facts to the notice of the Magistrate, those facts having by themselves been reported to the police by other persons. The police may not act upon such information and submit a report to the Magistrate. When the papers reach the Magistrate, the information which was placed at the disposal of the police, comes to the notice of the Magistrate and the Magistrate may act upon such information and take cognizance of the offence. In doing so, he does not act upon the report of the police, nor does he act on the information given to him by the police, though it does reach him through the police. It has consequently been held that in such cases the Magistrate will be deemed to have taken cognizance under Clause (c). '(Code of Criminal Procedure by Sohoni, Page 1533).

In this view of the matter the Magistrate was justified in taking cognizance of the offence on the basis of the final report and the police records submitted along with it

12. To sum up, when a final report and police papers are placed berore a Magistrate, either he can agree with it or he can take cognizance of the offence under Section 190(1)(c) of the Code, because of his own knowledge which he derives from the final report and the police papers submitted along with it. I, therefore, hold that the Magistrate certainly can take cognizance under Section 190(1)(c) of the new Code upon the information submitted by a police officer that no offence has been committed if from the papers submitted along with the information the Magistrate derives the knowledge that an offence has been committed.

13. It was argued by the learned Counsel for the accused-petitioner that the learned Magistrate was in error in taking cognizance of the offence against the accused as there was no evidence worth the name against him. The argument is misconceived. Some of the witnesses definitely implicate the accused, connecting him with the crime in the sense that he was tire driver of the jeep, at the time of the accident. The contention is, therefore, rejected. No other point was argued or pressed before me.

14. In the result, the revision petition is dismissed.


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