K.S. Lodha, J.
1. The two accused petitioners have filed this application Under Section 482 Cr. P.C. against the order of the learned Chief Judicial Magistrate, Chittor Garh dated 15-10-82 by which cognizance of the offences Under Sections 467, 468, 471 read with 120B I.P.C. has been taken against them.
2. Briefly stated the facts of the case are that one Trilok Singh filed a FIR against Harjinder Singh alleging that a truck No. RJZ 2115 was registered in the name of Mohd. Sharif who sold it to Habib and Ramesh Chandra and Ramesh Chandra in his turn sold it to Trilok Singh and the accused Harjinder Singh. It was further alleged that Trilok Singh invested a sum of Rs. 18, 000/- and Harjinder Singh invested a sum of Rs. 17,000/- for the purchase of this truck and it was agreed that the rest of the amount shall be paid at the time of the transfer of the registration to Ramesh Chandra. The truck was kept in the custody of Harjinder Singh and he was to maintain the accounts. However, it was further alleged that when Trilok Singh asked for accounts. Harjinder Singh told him that the truck was not plying properly and there were losses. On this account some disputes arose between the two. However, that matter was later compromised between them and it was agreed that the ownership of the truck shall be transferred to Trilok Singh alone on certain agreed payments.
3. It was further alleged that when Triloksingh went with the amount to Harjinder Singh, he found that the said truck had been converted into truck No. RJQ 6469. He there upon lodged a report to the police. The police after investigations filed a challan. On investigations the police found that truck No. RJQ 6469 originally belonged to one Krishna Gopal and was registered in his name. It was out of order and had been surrendered. However, Harjinder Singh and his brother Manjeet Singh purchased this truck from Krishna Gopal. As the registration of that truck had already been surrendered, a fresh registration was to be obtained and, therefore, they converted truck No. RJZ 2115 into truck No. RJQ 6469 with the help of Krishna Gopal as also a mechanic Mohan Suthar and on this converted truck they obtained fitness certificate after getting it inspected by Bagh Singh M.T.O. The police after completing the investigations put up a challan for offence Under Sections 406, 420, 467, 468, 471, 484 and 403 I.P.C. against Harjinder Singh and Manjeet Singh. The learned Chief Judicial Magistrate, Chittorgarh before whom the challan was put up took cognizance of the offences against these two accused persons on 31-7-82 when he directed that the case may be registered and also passed orders regarding the bail of the two accused persons. The matter then went on for further proceedings. Copies of the challan papers were given to the accused and it was then fixed for considering the question of framing charges against the two accused persons on 15-10-82. While thus considering the papers for the purpose of framing charges, the learned Magistrate formed an opinion that these offences could not have been committed by the two accused put up by the police before him without the connivance and conspiracy of Krishana Gopal, the registered owner of RJQ 6469, Bagh Singh the M.T.O. and Chandra Bhusan DTO who issued the fitness certificates on the basis of the report of Bagh Singh. He, therefore, took cognizance of the offences Under Sections 467, 468 and 471 read with 120B I.P.C. against these three persons by his order dated 15-10-82 and directed bailable warrants to be issued in their names. The accused Bagh Singh and Chandra Bhusan have challenged this order by the present application Under Section 482 Cr. P.C.
4. I have heard the learned Counsel for the petitioners and the learned P.P. and have gone through the record.
5. The only contention urged by the learned Counsel for the petitioners is that once when on the police report put up before the learned Magistrate, he had taken cognizance of the offences against the two accused Harjinder Singh and Manjeet Singh on 31-7-82, he could not on the basis of the same evidence take cognizance against the present petitioner at a later stage and could have only acted Under Section 319 Cr. P.C. if after having taken cognizance as aforesaid, he received further evidence during the course of enquiry or trial. In this connection he placed reliance upon two decisions of this Court, namely, Sheoram Singh v. State of Rajasthan 1982 RLR 550 and Mahendra Kumar v. State of Rajasthan 1984 RLW 172.
6. On the other hand the learned P.P. has supported the order of the learned Magistrate and has urged that on 31-7-1982 the learned Magistrate had only taken cognizance of the offences and it was only thereafter that he could find out the offenders and when during the course of consideration of the question of framing charges against the accused who had been put up by the police, he found that there was material before him to show the complicity of the present petitioners in the said offences, he was perfectly justified in taking cognizance against them also. In this connection he has placed reliance upon Raghubans Dubey v. State of Bihar : 1967CriLJ1081 and Hareram v. Tikaram AIR 1978 SC 1968.
7. I have given may careful consideration to these contentions. The question before me is as to till what stage the learned Magistrate could have acted Under Section 190 and thereafter could have acted only Under Section 319 Cr. P.C. and I am clearly of the opinion that the authorities of this Court relied upon by the learned Counsel for the petitioners clearly go to show that it was only upto 31-7-1982 when the learned Magistrate took cognizance of the offences against Harjinder Singh and Ranjeet Singh that he could have acted Under Section 190 and thereafter he could not have taken cognizance against the present petitioners on the basis of the police report already filed before him 31-7-82 & thereafter he could have acted only Under Section 319 if the evidence during the course of an enquiry or trial before him, there cams to his notice some evidence implicating the present petitioners. The provisions of Sections 190, 173 and 319 Cr. P.C. and the other relevant provisions under the Code of Criminal Procedure came up for consideration before a Division Bench of this Court in Sheoram Singh's case (supra) and after a careful examination of these provisions and the various authorities bearing upon it, the court observed as under:
The stage of invoking the jurisdiction Under Section 190 Cr. P.C. is well known and it is only when the police papers which are known as police reports and the statements and documents annexed to it, are placed before the Magistrate by virtue of Section 173, Cr. P.C. The Magistrate Under Section 190, Cr. P.C. at this stage can exercise one of the options of taking cognizance by resort to Section 190(1). Once the case proceeds further either by way of recording of evidence by the Magistrate or commitment to the sessions, as the case may be, the Magistrate becomes functus officio so far as his powers under Section 190, Cr. P.C. are concerned.
8. Now there is no doubt that the police papers or the police report in this case had already been placed before the learned Magistrate before 31-7-82 and he had considered it when he directed registration of the case against the accused Harjinder Singh and Manjeet Singh and directed further proceedings to be taken against them by way of delivery of the copies of the police report to them. There is no dispute before me that the cognizance of an offence can be said to be taken when the Magistrate applies his mind to the matter before him and decides to proceed further with the matter. Now when once he has applied his mind to the police report which has been placed before him and he decide to take cognizance of the offences only against some of the accused persons it cannot be envisaged that he will have further opportunities of re-considering the same police report again and again and on the basis thereof he would take cognizance against other accused persons who may appear to be involved in the commission of some offence because if it is allowed to be done, there would be no end to the re-consideration of the police papers from time to time. In other words, it will also amount to say that at the first instance the learned Magistrate took cognizance of the offences against some of the accused persons, he did not clearly and properly apply his mind to the police report. When the learned Magistrate considers the police report for the purpose of taking cognizance of the offence, it is expected of him that he would properly apply mind to the report, the evidence and documents placed before him by police along with report. Having once properly considered the police report and the evidence and documents filed along with it, the learned Magistrate must be able to make up his mind whether cognizance of any offence is to be taken and if so against which of the accused persons on the basis of the material that has been placed before him.
9. It may of course be stated that in Sheoram Singh's case referred to above, the court has observed that once the case proceeds further either by way of recording of evidence by the Magistrate or commitment to the sessions, as the case may be, the Magistrate becomes functus officio so far as his powers under Section 190 Cr. P.C. are concerned but in my opinion these stages are only illustrative and not exhaustive because as already stated above after having once taken cognizance of an offence and ascertaining the offenders on the basis of the police report, the learned Magistrate would not have any occasion for re-consideration of the same report for taking cognizance under Section 190 Cr. P.C. and, therefore, the stage of Section 190 Cr. P.C. must be deemed to be the stage when the Magistrate first applies his mind to the police report and takes cognizance of the offences and identifies the offenders. In Mahendra Kumar's case (supra) the learned Single Judge of this Court relying upon the decision in Sheoram Singh's case (supra) had also taken a similar view. In that case also after cognizance had been taken against one of the accused persons Under Section 190 Cr. P.C., the Addl. P.P. moved an application Under Section 319 Cr. P.C. for taking cognizance against some other persons. This application was filed before evidence had started and the learned Judge was of the opinion that in these circumstances recourse to Section 319 Cr. P.C. could not have been made and cognizance could not have been taken against the other persons at that stage.
10. It may be mentioned here that merely because the stage of Section 190 Cr. P.C. has passed and, therefore, the Magistrate cannot take cognizance against any other person on the basis of the police report already submitted before him, the prosecution would not be put to any prejudice in as much as after some evidence, may be even of a single witness is recorded during the course of enquiry or trial before the learned Magistrate or before the learned Sessions Judge if the case is committed to him, the court will be free to take cognizance against any other person if it finds his involvement in any offence.
11. The authorities relied upon by the learned P.P. do not appear to take any different view are thus not of much help. Ragubans Dube's case (supra) has already been considered by the Division Bench of this Court. It may be pointed out that in that case, it has been observed by their Lordships of the Supreme Court that the Magistrate takes cognizance of an offence and not the offenders and once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. On the basis of these observations the learned P.P. urged that taking cognizance of the offences and ascertaining the accused are two different stages and, therefore, even after taking cognizance Under Section 190(1)(b) of the Code of Criminal Procedure of the offences against some of the accused persons, the Magistrate can take cognizance against other accused persons at a later stage and, therefore, merely because he failed to take the cognizance against the present petitioners on 31-7-82 'Under Section 190(1)(b) Cr. P.C., he cannot be precluded from taking cognizance against the other accused persons at a later date. This contention appears to be only partially correct. It is true that cognizance is taken of an offence and on the cognizance having been taken of the offence, the court has a duty to find out who the offenders are. That duty can be performed either simultaneously with the taking of the cognizance of the offence if the offenders can be ascertained from the police papers but if they cannot be so ascertained from those papers, then the only other stage is Under Section 319 Cr. P.C.
12. In Hareram's case (supra) also, I do not find any thing contrary to this. In that case the F.I.R. named number of accused. After investigations the police put up a challan against some of them regarding the others it filed a FR as according to it no offence was made out against them. As the police did not proceed against these persons, the first informant filed a complaint in the court of Sub-divisional Magistrate reiterating his allegations against those persons who had not been put up by the police and thereupon after going through the statement made Under Section 161 Cr. P.C. the court found a prima facie case against those persons also and when this order of the learned Magistrate was challenged, the Orissa High Court after a meticulous scrutiny of the evidence found that there was no material to make out a prima facie case against them and the order of the Magistrate taking cognizance and issuing process against them was without jurisdiction. When the matter came up before the Hon'ble Supreme Court, the Hon'ble Supreme Court observed as under:
From the foregoing it is crystal clear that under Section 190 of the Code of Criminal Procedure the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders-involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence.
In the instant case the Sub-divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondent. In so doing the Magistrate did not in our judgment exceed the power vested in him under law.
13. It does not appear from the facts of the case that the Magistrate had earlier taken cognizance against some of the accused and later took cognizance against the other accused on a second consideration of the same police report and, therefore, this authority does not appear to be in point.
14. I am, therefore, clearly of the opinion that the order of the learned Chief Judicial Magistrate, Chittorgarh dated 15-10-82 taking cognizance of the offences against the petitioners was without jurisdiction as the stage of Section 190(1)(b) had passed and the stage Under Section 319 Cr. P.C. had not been reached.
15. I, therefore allow this application and set aside that part of the order of the learned Chief Judicial Magistrate by which the cognizance has been taken of the offences against the present petitioners. It may, however, be made clear that this will not bar the jurisdiction of the court to act Under Section 319 if and when the occasion arises.