ORDER
T. Ch. Surya Rao, J.
1. The petitioners seek to invoke the extraordinary jurisdiction of this Court under Section 482 of the Code of the Criminal Procedure (for brevity 'the Code') to quash the criminal proceedings initiated against them in P.R.C. No. 1 of 2003 on the file of the V Additional Munsif Magistrate, Guntur.
2. The petitioners are the accused along with two others in P.R.C. No. 1 of 2003 and have been arrayed therein as A1 to A3 respectively. A private complaint was filed by the first respondent herein against the petitioners and two others alleging inter alia the offences punishable under Sections 120B and 307 read with 149 of the Indian Penal Code (for brevity 'the IPC').
3. The complainant has been working as Head Constable at Kothagudem Police Station in Khammam District. A2 is his maternal uncle and father-in-law. A1 is the second son of A2. A5 is the wife of the complainant. A3 is the brother-in- law of the second accused. A4 is neighbour and close friend of A2. A5 filed the Maintenance Case in M.C. No. 3 of 2001 in the Court of the V Additional Munsif Magistrate, Guntur, which was eventually disposed of granting maintenance to her qua the complainant. The fifth accused also filed a complaint before Arundalpet Police Station on 16-10-1998 alleging harassment and cruelty against the complainant. The case was registered as crime No. 313 of 1998 under Section 498A of the IPC by the Women Police Station, Guntur. Eventually, charge-sheet was filed against the complainant and his two cousin sisters. When that case was pending before the V Additional Munsif Magistrate, Guntur in C.C. No. 504 of 1998 a memo was filed by the Public Prosecutor that the evidence recorded so far therein discloses the offence punishable under Section 307 of the IPC. The learned Magistrate basing on that memo converted the calendar case into P.R.C. No. 31 of 2000 and eventually committed the case to the Court of Sessions, Guntur. The said case is pending on the file of the Additional Assistant Sessions Judge, Guntur as S.C. No. 869 of 2001. When the complainant attended the Court in connection with the maintenance case, A2 and A5 who also attended the Court on that day threatened that they would see his end by killing him as he was not paying the maintenance properly. A5 also threatened the complainant that her brother A1 and father A2 would see his end. On 21-12-2000 when the complainant attended the Court A2, A5 and wife of A4 by name Srikumari attended the Court, when Srikumari gave evidence in the Court in favour of A5. A4 also attended the Court along with his wife. When the complainant was waiting outside the Court, A4 at the instigation of A2 and A5 threatened the complainant and said that his days were numbered as he was not paying the maintenance to A5 and he would be killed in a few days. The complainant did not take those threats seriously. On 26-12-2000 the complainant came to Guntur at about 2.15 PM to meet his counsel, by name, Sri B.Murali Mohan. He was with his counsel till 7.00 PM discussing about the pending cases. Along with them, one, Gummadi Raja Rao, was also present, who too attended the Court in connection with his cases.B. Murali Mohan wanted the complainant and Raja Rao to come to his office, situate at 4th line, Arundalpet, Guntur, for further discussion. The complainant and Raja Rao together started from the Court so as to go to the office of their counsel on foot. They proceeded up to medical college, whereat they crossed the railway track and reached a well situate at the 1st line, Bradipet, Guntur. Suddenly A1, A2 and A3 along with four other persons, who were unknown to the complainant, came opposite to them. A1 said to those unknown persons while pointing at the complainant that he was the person to be killed. As discussed earlier, A2 and A3 also told those persons to finish off the complainant pointing at him. Thereupon, one out of the four persons stabbed the complainant with a knife on his stomach, another person held the complainant's hand. When the complainant tried to wriggle out, again the first person stabbed him on the right arm pit. Another person stabbed him on the upper part of the right thigh. The complainant raised hue and cry and started running with bleeding injuries towards 2nd line, Bradipet. A1 to A3 and other accused left that place running away. The entire incident was witnessed by Raja Rao, who was along with the complainant. The complainant thereupon rushed to Arundalpet Police Station on a rickshaw. The Sub-Inspector of Police saw the complainant who was bleeding profusely and sent him to the Government General Hospital, Guntur, accompanied by a Constable in an auto rickshaw without recording his statement. Later, the Sub-Inspector arrived at the casualty and recorded the statement of the complainant. He took signatures of the complainant on the recorded statement and on some blank papers as well stating that they might be needed to record fair statement and other statements. The VII Additional Mobile Munsif Magistrate came and recorded the dying declaration of the complainant at 8.00 PM on that day. The complainant was later shifted to a private hospital, whereat he was operated upon. Thus, A1 to A5 who conspired to do away with the complainant engaged four hirelings who attacked the complainant at the instance of A1 to A5 and thus all of them are liable for punishment under Sections 120B and 307 read with 149 of the IPC. However, the Inspector of Police, who investigated the case, for the reasons best known to him, filed the charge-sheet against the four unknown persons, leaving A1 to A5. When the complainant attended the Court on 29-10-2002 to give evidence, he came to know that the case was filed against four persons only omitting A1 to A5. Hence, he filed a private complainant before the V Additional Munsif Magistrate, Guntur.
4. The learned Magistrate conducted an enquiry under Section 202 of the Code inP.R.C. No. 1 of 2003 by recording the statements of the complainant and other witnesses. Eventually, he had taken cognizance against A1 to A3 alone and directed the process to be issued. As aforesaid, the petitioners are assailing the said proceedings.
5. Sri P. Madhusudana Reddy, learned Counsel for the petitioners, represents that the case ought not to have been taken on file by the learned Magistrate having regard to the pendency of S.C. No. 877 of 2001 on the file of the Additional Sessions Judge, Guntur, and, therefore, it is nothing but sheer abuse of the process of the Court.
6. In support of his contention the learned Counsel for the petitioners seeks to rely upon the Judgments of the Apex Court in Nisar and Anr. v. State of U.P. 1994 (3) Crimes 871 and Anukul Chandra Pradhan v. Union of India 1997 (1) ALD (Crl.) 139 (SC). The ratio laid down therein seems to be that once a charge-sheet has been filed before the Court, it is for that Court to deal with the case on merits and any direction to further investigate or any decision to proceed against any other person, who also appears to have committed the offence, is within the domain of the said Court. The contention of the learned Counsel seems to be that the first respondent who had appeared before the Court and gave evidence in the Sessions case ought to have filed an application under Section 319 of the Code.
7. In view of the above contentions, the short point that arises for determination is whether the cognizance taken by the Magistrate on a private complaint filed by the complainant when already he had taken cognizance earlier on a police report and committed the case eventually to a Court of sessions, which is pending trial, is illegal and is liable to be quashed?
8. Although the point involved is short, but might crop up for consideration time and again before the Criminal Courts and in that view assumes greater significance in the administration of criminal justice. It needs, therefore, to look into the scheme of the Code and the background history. The scheme of the criminal procedure which is based upon French criminal procedure in this respect is that two parallel agencies have been set up for taking to Court of criminal offences; the police and the private aggrieved party are placed on a parallel foot. The object of the Criminal Procedure Code is to ensure the freedom and safety of the subject in that it gives him the right to come to Court if he considers that a wrong has been done to him or to the republic and be a check upon police vagaries. Vide Chinnaswami v. Kuppuswamy : AIR1955Mad534 .
9. Symbolizing the same, Section 190 of the Code incorporates inter alia three sources through which the Court can take cognizance of the offence. Section 190 reads as under:
190. Cognizance of offences by Magistrates:
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower and Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.
10. The criminal Court takes cognizance of any offence upon receiving a complaint of facts which constitute such offence, upon a police report of such facts and upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Of course, the Code engrafts certain limitations upon the power of the criminal Court to take cognizance of the offence in Sections 195 - 199 which are not germane in the present context. Clauses (a) to (c) of Section 190 thus provide the source for taking cognizance of an offence. A close scrutiny of the provision excerpted hereinabove shows that the Clauses (a) to (c) are not mutually exclusive having regard to the conspicuous absence of the word 'or'.
11. Turning to the law on the point, in Bharat Kishore v. Judhistir AIR 1929 Patna 473 the first judicial pronouncement was rendered thus:
While considering Section 190 it cannot be treated that the three alternatives upon which a Magistrate may take proceedings are mutually exclusive. It is not correct that a Magistrate while taking cognizance of an offence should have done it under some one of the alternatives to the exclusion of the other.
12. In Mukania v. Achalia it was held thus:
Under Section 190(1), it is open to a Magistrate to act on any one of the three grounds mentioned in the Clauses inSection 190(1) but these three grounds are not mutually exclusive and it is possible for a Magistrate to take cognizance of any offence upon two or more of such grounds e. g. both upon receiving a complaint and on a police report.
The Judgment of the Patna High Court in Bharat Kishore's case has been followed therein.
13. In The State v. Pancham 1957 Crl.L.J. 283 the Madhya Bharath High Court has taken the same view following the above two judgments.
14. In Shankarlal v. Mohd. Ayyub AIR 1960 Bombay 116 the Bombay High Court also has taken the same view.
15. In Bhaktavatsalam v. Govindarajulu : AIR1969Mad177 the Madras High Court had adverted to a problem which is well-nigh akin to the instant problem and held thus:
Even in a case where the police investigate a cognizable offence in respect of the information received by them and submit a final report underSection 173, Cr. P. C. of which the Magistrate having jurisdiction takes cognizance by virtue ofSection 190(1)(b), Cr. P. C., there is no bar for the Magistrate taking cognizance of a complaint filed by a party in respect of the same facts under Section 190(1)(a), Cr. P. C. and proceed with the enquiry or the trial, as the case may be, or the both. The investigation by the police of a cognizable offence has nothing to do with the Magistrate taking cognizance of the same matter on a complaint by a party.
16. In Gajendra Swaroop v. Baleshwar Prasad : AIR1988Pat15 a larger bench of Patna High Court has reiterated its earlier view in Bharat Kishore's case and inter alia in para 11 held thus:
Therefore, any hermetic sealing or compartmentalization of Clauses (a), (b) and (c) of Sub-section (1) of Section 190 and holding that these are mutually exclusive is neither justified on principle nor on authority.
17. From the above it is obvious that Clauses (a) to (c) of Section 190 are not mutually exclusive. Even when a report has been filed by the Investigating Agency and cognizance of the offence has been taken by the Court thereon, the aggrieved de facto complainant can still maintain a private complaint in writing before the Court and the Magistrate can take the complaint on file in accordance with the provisions contained in Sections 200 and 202 of the Code. While doing so, the Court is not certainly taking cognizance of the offence again having regard to the fact that it has already taken cognizance of the offence on a police report or charge sheet. In my considered view, it is nothing but an endeavour in the process to find who the offender is.
18. It is trite that criminal Court takes cognizance of an offence, but not the offenders. The Criminal Procedure Code 1973, provides for cognizance of an offence and committal of a case as contradistinguished from cognizance of an offender or committal of an accused to the Court of Session as per the old Code.
19. In Raghubans Dubey v. State of Bihar : 1967CriLJ1081 the Apex Court held thus:
In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; 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. Pravin Chandra Mody v. State of Andhra Pradesh's case : 1965CriLJ250 followed.
This was followed in Hareram Satpathy v. Tikaram Agarwala : 1978CriLJ1687 . This has also been followed by the Apex Court in Kishun Singh v. State of Bihar : 1993CriLJ1700 .
20. From the above it is obvious that the Court takes cognizance of the offence, but not the offenders. Once cognizance of the offence has been taken, it becomes the plain duty of the Court to find who the accused is/are. At the time when the perusal of the charge-sheet the Court finds that there are certain persons who are left out by the Police in the charge-sheet and there has been a prima facie case against them, the Court may issue the process against those accused also along with the persons named in the police report. Similarly, on being moved by the aggrieved party, namely, the de facto complainant by filing a complaint in writing, the Court may take the complaint on file against those accused named in the complaint who are left out in the police report filed earlier in respect of the same crime. At that stage the Court is not taking cognizance afresh, inasmuch as cognizance of the offence has already been taken on the police report filed earlier thereto. But, the endeavour of the Court then would be to find who the accused is/are. Thus, ample power is vested in the Court to find who the offenders are, once the Court has taken cognizance of the offence and it is not limited.
21. It is no doubt true that under Section 319 of the Code a person who has not been named inter alia in the police report can be added in the array of the accused provided there is evidence before the Court disclosing the involvement of such person. That provision could be availed of by the prosecuting agency and in its failure by the aggrieved de facto complainant. But that has no effect of excluding the other remedy of filing a complaint in writing by the de facto complainant before the Court of Magistrate.
22. The Code is exhaustive providing a complete machinery to investigate and try cases, appeals against the Judgments, and it has provisions at each stage of investigation, trial, appeal and revision, to correct errors, failures of justice and abuse of process, as held by the Apex Court in Popular Muthiah v. State : (2006)7SCC296 Paras 21 and 22. When the Code is replete with the necessary provisions, one or other such curative provisions can be availed of by the aggrieved persons. As discussed hereinabove, such provisions are not mutually exclusive. Therefore, Section 319 of the Code has, in my considered view, no effect of excluding the other remedy of filing a complaint in writing before the Court by the aggrieved de facto complainant. It all depends upon the fact situation of a given case. More often than not, the victim who is the de facto complainant will be always kept in dark and that perhaps is one conspicuous unforeseen side of the Code. The victim appears before the Court only pursuant to the summons issued at the time of trial and till such time from the day one on which he lodges the report and is examined by the investigating agency, he will not be knowing ordinarily about the progress in the investigation and proceedings before the Court. It is only at the time when he gives evidence certain facts will be disclosed before the Court and the omissions on the part of the investigating agency will be revealed clearly. Once any omission is thus disclosed unequivocally during the course of trial, it becomes the plain obligation of the Court to add so as to see who the real offender(s) is/are. Earlier, at the time when the Court takes cognizance of the offence on the police report under Section 190(1)(b) of the Code, the Court is obliged to give a notice to the victim, the de facto complainant, informing him about the omission of a person in the police report who has been named inter alia in the First Information Report launched by him earlier. Such notice is required and what is more mandatory not only at the stage when the investigating agency chooses to file a final report recommending for dropping of proceedings but also whenever there is exclusion of the names of some persons from the array of the accused inter alia in the charge sheet whose names have been mentioned earlier in the First Information Report. Indeed, it has been held by the Apex Court in Muni Kumari v. State of Bihar : 2006CriLJ2468 . In para 12, the Apex Court held thus:
When the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the F.I.R. becomes wholly or partially ineffective.
This Court in Bhagwant Singh v. Commissioner of Police : 1985CriLJ1521 held that where the Magistrate decides not to take cognizance and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the F.I.R., notice to the informant and providing him an opportunity of being heard becomes mandatory.
23. Turning to the matrix of the case, no such notice has been issued to the de facto complainant when the investigating agency filed the charge sheet against four out of the nine named persons in the First Information Report. Obviously the victim did not know the same till such time he appeared before the Court pursuant to the summons during the course of the trial. He is, therefore, aggrieved and can avail of either of the remedies by filing a petition under Section 319 of the Code or by filing a complaint in writing before the Court of Magistrate. Obviously, the criminal Court which is obliged to take appropriate action under Section 319 of the Code has not proceeded in that direction. Even the prosecuting agency failed in filing the necessary application before the criminal Court for addition of the left over persons as accused before the Court. It is, therefore, a clear case where the victim is an aggrieved party and he can file a complaint in writing before the Court of Magistrate. In view of this clear legal position with reference to the matrix of the case, the de facto complainant cannot be compelled to avail of only one out of the alternate remedies available to him under the Code. The contention of the learned Counsel appearing for the petitioners that the only remedy available to the de facto complainant is to file an application under Section 319 of the Code, for the above reasons, merits no consideration. The Judgment of the Apex Court in Nisar and Another (referred to supra) sought to be relied upon by the learned Counsel proceeded on different set of circumstances. In that case when an application was filed under Section 319 of the Code to summon the appellants an objection was taken on the ground that there was no committal qua the appellants and, therefore, the Sessions Court could not summon them. That contention was repelled. Similarly, the other Judgment of the Apex Court in Anukul Chandra Pradhan (referred to supra) has also no application to the matrix of the instant case. In that case, the Apex Court had to examine its earlier directions given in Vinweth Narain and Ors. v. Union of India were complied with or not. When it was reported before the Court that the C.B.I. filed charge sheets in two cases and Delhi Police filed a charge sheet in one case, the Apex Court held that it is for the Courts before which the charge sheets were thus filed to deal with them on merits and if any direction was considered necessary for further investigation if any or to proceed against any other person who also appeared to have committed any offence in that transaction was within the domain of the concerned Court according to the procedure prescribed by law. The Apex Court was primarily monitoring as to whether its directions given earlier in Vinweth Narain's case were in fact complied with or not. Obviously, in both the Judgments the Apex Court was of the clear view that it was within the domain of the concerned Court to proceed against any other person who appeared to have committed any offence but the Apex Court did not limit the remedy to one as envisaged under Section 319 of the Code out of the two remedies available to the de facto complainant and the other being approaching the Court of Magistrate by filing a complaint in writing. Therefore, the two Judgments of the Apex Court on which the learned Counsel appearing for the petitioners seeks to place reliance have no application to the fact situation obtaining in the instant case.
For the above reasons, the Criminal Petition fails and is dismissed.