Indresh Sharma and Another Vs. Heera Bai and Another - Court Judgment

1. In this writ petition under Article 226/227 of the Constitution of India preferred by the accused persons, the question arises for consideration is; when a Magistrate is said to have taken cognizance of any offence; and whether once having taken cognizance of the offence, it is open for the Magistrate to proceed under Section 156 (3) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'), for directing investigation by the Police and submitting a report.

2. Complainant Smt. Heera Bai has filed a complaint against the petitioners and three accused persons under Section 200 of the Cr.P.C. alleging commission of offence under Sections 420, 467, 468 and 471 read with Section 34 of the Indian Penal Code (for short 'the IPC'). When the complaint was filed on 03.05.2012 the Magistrate, instead of proceeding to examine the complaint, postponed the issue of process and directed the Police to submit a report. The concerned police sought adjournment on further dates of hearing to produce the report. On 01.05.2013 the complainant moved an application under Section 156 (3) of the Cr.P.C. and the matter was posted for submission of report by the police and for primary evidence. The report was submitted by the police on 27.05.2013. The matter was then posted for examination of the complainant's witnesses on 03.06.2013 and 02.08.2013, however, on this date the Magistrate heard the parties on the complainant's application under Section 156 (3) and the same was allowed by the impugned order dated 19.08.2013, consequently, a direction has been issued to the Station House Officer, Baloda Bazar to investigate the matter and submit the final report.

3. It is contended by Shri Sharma, learned counsel appearing for the petitioner, on the strength of the judgment of this Court rendered in Smt. Rakhi Patel v. State of C.G. and Others (2013 (3) C.G.L.J. 638), that once the Magistrate has taken cognizance, it was not open for him to proceed under Section 156 (3) of the Cr.P.C.

4. Per contra, Shri Bhaduri, learned counsel appearing for the respondent No.1/complainant, would argue that on the relevant date the Magistrate had not taken cognizance of the offence when the application under Section 156 (3) was allowed, therefore, the impugned order does not suffer from any infirmity.

5. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

6. The order sheets of the trial Court would reveal that initially the Magistrate did not examine the complainant on the date when the complaint was filed and instead it postponed the issue of process and sought a report from the police. Pending submission of report by the concerned police, the matter was fixed for examination of complainant, however, in the meanwhile the complainant also moved an application under Section 156 (3). The order sheets further reveal that the concerned police submitted the report, but the Magistrate did not consider the report and again fixed the matter for recording of the evidence of the complainant witnesses, but later on proceeded to deal with the application under Section 156 (3) of the Cr.P.C.

7. This Court in Smt. Rakhi Patel (supra) has referred the decisions of the Supreme Court in Tula Ram and others v. Kishore Singh (AIR 1977 SC 2401)and Mohd. Yousuf v. Afaq Jahan (Smt) and another and concluded that in the said case, the Magistrate having taken cognizance of the offence it could not have later on exercised the jurisdiction under Section 156.

8. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and others ((2008) 2 SCC 492)the Supreme Court held that the expression “cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. The Supreme Court further held that “taking cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.

(Emphasis supplied)

9. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (AIR 1950 Cal 437)the High Court of Calcutta had an occasion to consider the ambit and scope of the phrase “taking cognizance” under Section 190 of the Code of Criminal Procedure, 1898 which was in pari materia with Section 190 of the present Code of 1973. Referring to various decisions, Das Gupta, J. (as His Lordship then was) stated: (AIR p. 438, para 7)

“7...… What is ‘taking cognizance has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC, 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 enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose 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.....”.

(Emphasis supplied)

10. In R.R. Chari v. The State of Uttar Pradesh (AIR 1951 SC 207), the Supreme Court had an occasion to consider the circumstances under which cognizance of offence under sub-section (1) of Section 190 of the Cr.P.C. can be taken by a Magistrate. After referring to the decision of Calcutta High Court in Abani Kumar Banerjee (supra), the Supreme Court held thus:

“3. It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in CrPC on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate. Under Section 167(b) CrPC the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore, in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate..... ”

11. Once again in Narayandas Bhagwandas Madhavdas v. The State of West Bengal (AIR 1959 SC 1118), the Supreme Court observed that the question as to when cognizance is taken of an offence depends upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance.

12. In Gopal Das Sindhi and others v. State of Assam and another (AIR 1961 SC 986), the Supreme Court held thus:

“7....…We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ‘may in Section 190 to mean ‘must. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code......”

13. In a very recent decision rendered in Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian and Others ((2014) 2 SCC 62), the issue as to when cognizance is said to have been taken by the Magistrate again fell for consideration and the Supreme Court after referring to umpteen number of previous judgments including R.R. Chari (supra), Jamuna Singh and others v. Bhadai Shah (AIR 1964 SC 1541)and Gopal Das Sindhi (supra) held thus :

32. In Jamuna Singh v. Bhadai Shah, relying on R.R. Chari and Gopal Das Sindhi v. State of Assam, this Court held that: (Jamuna Singh case, AIR p. 1544, para 8)

“8. … It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Criminal Procedure Code, he must be held to have taken cognizance of the offences mentioned in the complaint.”

The Supreme Court then took note of its judgment rendered in Videocon International Ltd. (supra) particularly paras 19 and 20 of the said judgment which have been discussed by me in para 8 of this judgment. The Supreme Court thereafter, in para 34, concluded thus :

“34. Thus, a Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term “cognizance” and it has to be given the same meaning wherever it appears in Chapter XXXVI. It bears repetition to state that taking cognizance is entirely an act of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrates personal reasons.”

14. While dealing with the power directing investigation, pre and post taking cognizance by the Magistrate under Section 156 (3) and 202 of the Cr.P.C., the Supreme Court in Tula Ram (supra) has held that where a Magistrate chooses to take cognizance, he has following options (a) in case he is satisfied that there is sufficient ground for further proceeding, he can straightway issue process to the accused after complying with the requirement of Section 200 of the Code; (b) postpone the issue of process and direct an enquiry by himself; and (c) postpone the issue of process and direct an enquiry by any other person or an investigation by the police, and thereafter pass order, but the Magistrate not taking cognizance of the offence is empowered to order for investigation by the police under Section 156 (3) of the Cr.P.C.. The Supreme Court has observed in para 14 of the said judgment as follows:-

“14. In these circumstances we are satisfied that 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 appellants. The High Court has discussed the points involved thread-bare and has also cited a number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge:

1. That a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.

2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

4. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above.”

(Emphasis supplied)

15. Like in the present case, in the matter of Smt. Rakhi Patel (supra) also the Magistrate had initially summoned for police report and fixed the matter for recording complainants evidence before registering the matter. Thus, the facts are similar. The Magistrate having fixed the matter for recording the evidence of complainants witnesses to examine as to whether process needs to be issued to other party, he cannot, later on, invoke powers under Section 156 (3) of the Cr.P.C. and choose different nature of enquiry/investigation before issuing the process.

16. As a sequel, the writ petition is allowed. No order as to costs.