Judgment:
ORDER
A. Pasayat, J.
1. These two applications are inter-linked and are disposed of by this common order.
2. Criminal Revision No. 103 of 1997 has been filed by Damodar Mishra questioning correctness of order dated 13-6-1997 passed by the learned Sub-Divisional Judicial Magistrate, Puri (in short, 'SDJM') in C.R. case No. 97 of 1996 corresponding to Puri Town P.B. case No. 26 of 1996 recalling the order relating to cognizance of offences punishable under Sections 406/506 of the Indian Penal Code, 1860 (in short, 'IPC') allegedly committed by opposite party Nos. 2 to 5, and coming to the conclusion that in respect of Dhadi Rana (opposite party No. 6) there was no material to proceed for the alleged commission of offence punishable under Section 498A/506, IPC.
In Criminal Misc. @ase No. 2281 of 1997 the accused persons have questioned correctness of said order. After cognizance, process has been issued to accused persons for alleged commission of offences punishable under Sections 498A/420 read with Section 34, IPC, and under Section 4 of the Dowry Prohibition Act, 1961 (in short, the 'Dowry Act'). Prayer is made to quash the prosecution and cognizance dated 13-6-1997.
3. The background in which the impugned order came to be passed is as follows :
Damodar's daughter Sunanda was married to Umakanta, the third son of accused Trilochan and Shantilata on 23-1-1995. Accused Prasanna Kumar Mishra was the mediator of the marriage, Certain articles were given as dowry on the demand made by the groom and his relatives. It was not known to the bride's family that Umakanta was a diseased person suffering from Portal hypertension and damaged lever and kidney and his spleen had been removed by operation in All India Institute of Medical Sciences, New Delhi on 12-1-1988. After 20 days of marriage, Umakanta became unconscious and in coma stage was admitted in the S.C.B. Medical College Hospital, Cuttack on 23-2-1995. Thereafter he continued to be treated in the said hospital for certain periods and ultimately breathed his last on 3-11-1995 due to hepatic coma. Sunanda was ill-treated by the accused persons, was subjected to various types of physical and mental cruelties and demand for dowry continued. With the dowry articles received from the bride's family, accused persons got Dipti, daughter of accused Trilochan, married on 20-4-1995. By playing a dirty trick and in a deceitful manner accused persons-managed to get Umakanta married to Sunanda. After death of Umakanta, tortures were continued being afraid that Sunanda may take recourse to Court of law, object was to drive sense of fear to her heart. She was forced to sign on five blank papers. Lot of valuables were taken by force from her. There was even an attempt to burn her by pouring kerosene and leakage of gas. However, she was rescued by her father on 6-1-1995. The accused persons did not return the articles they had taken and promised to give them back on 26-11-1995 at Bhubaneswar. But they did not keep the promise. On 10-12-1995, accused Laxmikanta was found out at Cuttack, and he promised to return all the articles to Sunanda on 24-12-1995. When she was accompanied by her father, elder brother and others went to his place of stay at Cuttack on 24-12-1996, there was physical assault on her for which written report was lodged at Cantonment Police Station and Station Diary Entry No. 864 dated 24-12-1995 was recorded. Finding no other alternative, an FIR was lodged in Puri Town P.S. on 17-1-1996 by Damodar Misra which was registered in respect of offences alleged to have been convicted under Sections 498A/420 read with Section 34, IPC and Section 4 of the Dowry Act. It was registered as P.S. case No. 26 of 1996 corresponding to G.R. Case No. 97 of 1996. In the said case charge-sheet was submitted by the Human Rights Protection Cell, Orissa. When there was delay in making the search and seizure of the concerned articles, the Human Rights Protection Cell, Orissa, transferred the aforesaid case from Puri Town P.S. for its own investigation and charge-sheet was submitted as referred to above. Learned SDJM, Puri took cognizance of the offences on 27-11-1996. four accused persons, namely, Trilochan, Shantilata, Laxmikanta and Ramakanta did not appear in the Court of S.D.J.M,, Puri, but filed Crl. Misc. Case No. 56 of 1996 purportedly under Section 482 of the Code of Criminal Procedure, 1973 (in short, the 'Code') challenging the cognizance taken. In the said case, the informant Damodar was not impleaded as a party. In the case this Court directed the learned SDJM, Puri to consider the prayer of the accused persons keeping in view the guidelines indicated by the Apex Court in K. M. Mathew v. State of Kerala (1992) 3 OCR 66 : (1992 Crl LJ 3779). An application was filed by the accused persons for recalling the order of cognizance in the Court of S.D.J.M. and it was heard at length on several dates. On 13-6-1997 order was passed in which the earlier order relating to offences punishable under Sections 406/506, IPC was varied in respect of all the accused persons, and in respect of accused Dhadi Rana, who was charged with the offences punishable under Section 498A and 506, IPC.
4. It is the stand of petitioner Damodar that while considering the question whether the cognizance is to be taken and/or there is any material for taking the cognizance, the Court is not supposed to proceed as if it is trying to find out innocence or otherwise of the accused persons.
5. In Criminal Misc. Case No. 2231 of 1997, the stand taken is that FIR lodged on 27-1-1996 was not maintainable in terms of Section 162 of the Code, and the learned SDJM should not have acted on it.
6. When a report forwarded by the Police to the Magistrate under Section 173(2)(i) of the Code is placed before him, several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop and proceeding, or (3) may direct further investigation under Section 156(3) of the Code, and require the police to make a further report. The report may on the other hand State that accordingly to the police, no offence, appears to have been committed, when such a report is placed before the Magistrate, he has again an option of adopting one of the three courses open, i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3) of the Code. The position is, therefore, now well-settled that upon receipt of police report under Section 173(2) of the Code a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it be open to him to act under Section 200 or Section 202 also (See India Carat Pvt. Ltd. v. State of Karnataka AIR 1989 SC 885 : (1989 Cri LJ 963).
These aspects were highlighted by a Division Bench of this Court to which I was a party in Srinibas Balabantaray v. Additional Sessions Judge, Koraput, Jaypore 1990 (I) OLR 179.
7. Though the expression 'may take cognizance of the offence' is used in Section 190 of the Code, there is no definition of the expression in the Code. But from the scheme of the Code, the content and heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when it takes cognizance of the offence alleged therein. Clauses (a), (b) and (c) lay down the ways in which such cognizance can be taken. In its broad and liberal sense, cognizance means taking notice of an offence and would include the intention of initiating judicial proceeding against the offender in respect of that offence or taking steps to show if there is any basis for initiating judicial proceedings or for other purposes. Criminal proceedings are initiated by the Magistrate by taking cognizance of an offence. Section 190 is one out of a group of Sections appearing in Chapter XIV under the heading 'Conditions requisite for initiation of proceedings'. There is a difference between 'taking cognizance of an offence' and 'prosecution of the offender'. Under Section 190 cognizance of an offence is taken and not necessarily of the individual offender whose name transpired during the course of investigation. The section does not empower the Magistrate to deal with the offenders, but to take cognizance of the offence. Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as the Magistrate applies his mind to the suspected commission of an offence. It is a threshold act, when the Magistrate takes Judicial notice of an offence. The duty of the Magistrate at the time of taking cognizance is to examine the statements of the complainant and the witnesses whenever any enquiry is held not with a view to be satisfied that on such material conviction must result. He has to come to a conclusion about existence of a prima facie case. Section 190 provides that cognizance has to be taken of any offence and as indicated above no reference is made to the offender. At the stage of taking cognizance the sine qua non is the existence of a prima facie case and not the possibility of conviction or acquittal. The Magistrate at that stage is not required to make an indepth analysis of the evidence on record. But when the materials on record do not prima facie show commission of any offence the Magistrate would be perfectly justified in refusing to take cognizance. Cognizance has no esoteric or mystic significance in criminal law or procedure. It merely means to become aware of and, when used with reference to a Court or Judge to take notice of judicially. It cannot be a mechanical act. There may be cases where the Magistrate finds that the materials which the prosecutor proposed to adduce to prove guilt of the accused, even if fully accepted before it challenged in crossexamination, does not show existence of any prima facie case. In that case it may be a sufficient ground in not proceeding with the case. As observed by the Apex Court in Eastern Spinning Mills v. Rajiv Poddar AIR 1985 SC 1668: (1985 Cri LJ 1858) and State of Bihar v. Raj Narain Singh AIR 1991 SC 1308 : (1991 Cri LJ 1416), when considering the purpose and ambit of Sections 227 and 228 of the Code, evidence is yet to be taken and the aspects which accused terms vulnerable can very well be clarified by evidence when the prosecution has its opportunity of placing the case through witnesses in Court. It would be hazardous to act on the discrepancies unless they are so fatal and glaring as to affect the credibility of the prosecution case without affording reasonable opportunity to prosecution to substantiate the allegations.
8. The Scheme of the Criminal Procedure which is based upon French Criminal Procedure in this respect is that few 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 footing. The object of the 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 society and be a check upon police vagaries. A Court can take cognizance of an offence only when conditions requisite for initiation of proceedings before it as set out in Chapter XIV are fulfilled otherwise the Court does not obtain jurisdiction to try the offence (See Mohomed Safi v. State of West Bengal AIR 1966 SC 69 : (1966 Cri LJ 75). However, the expression 'may take cognizance' in the context of Clause (b) of Sub-section (1) means 'must take cognizance'. The Magistrate has no discretion in the matter. Otherwise the Section will be violative of Article 14 of the Constitution. (See A.C. Aggrawal, Sub-divisional Magistrate, Delhi v. Mst. Ramkali AIR 1968 SC 1 : (1968 Cri LJ 82), Jagarlamudi Suriya Prasad v. State of Andhra Pradesh 1992 Cr LJ 597 (AP). In Tularam v. Kishore Singh AIR 1977 SC 2401 : (1978 Cri LJ 8) and H.S. Bains v. The State (Union Territory of Chandigarh), AIR 1980 SC 1883 : (1980 Cri LJ 1308), it was observed that what Section 190 contemplated is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint, and decides to examine or test the validity of the said allegations.
9. Section 190 of the Code deals with power of the Magistrate to take cognizance. It provides that subject to the provisions of Chapter XIV, 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 the facts, which constitute such offence; (b) upon a police report of such facts; and upon information received from any person other than a police officer, or upon his knowledge, that such offence has been committed. Section 191 obliges the Magistrate when he takes cognizance of an offence under Clause (c) of Sub-section (1) of Section 190 to inform the accused when he appears before him, that he is entitled to have the case inquired into or tried by another Magistrate. Section 193 provides that except as otherwise expressly provided in the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.
10. 'Cognizable offence' has been defined in Section 2(c) of the Code to mean' an offence for which, and cognizable case means a case in which, a police officer may in accordance with the First Schedule or under any law for the time being in force, arrest without warrant'. 'Complaint' is defined in Section 2(d) of the Code to mean 'any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or Unknown, has committed an offence, but does not include a police report'. There is an explanation appended to the said section. Section 3(1) defines 'non-cognizable offence' and 'police report' is defined in Section 2(r) to mean a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 of the Code.
11. 'Cognizance' is defined in Wharton's Law Lexicon (14th Ed.) as taking note judicially. Taking cognizance includes the intention of initiating a judicial proceeding against an offender in respect of an offence or taking steps to see whether there is basis for initiating judicial proceeding or for other purpose. Till the process is issued, the accused does not come into the picture at all. He may physically attend but is not entitled to take part in the proceeding. (See Smt. Nagawwa v. Veeranna Shivalingappa Konjhalgi AIR 1976 SC 1947 : (1976 Cri LJ 1533). The process of securing presence of an accused is mentioned in Section 204 of the Code. Taking cognizance implies and imperates at application of judicial mind for the purpose of finding out whether there is suspected commission of an offence. It is a matter of substance and not formality. The Magistrate is not supposed to act in mechanical manner to take cognizance. The Code makes distinction between taking cognizance of a case and its subsequent trial. There was some amount of controversy as to whether the Magistrate is bound to take cognizance as soon as a complaint is filed before him, or it is open to him to take other steps. The position, however, is not settled in the sense that it has been held by the Supreme Court that as soon as complaint is filed, the Magistrate is not bound to take cognisance of the offence and proceed under provisions of Chapter XV of the Code (See Tula Ram's case (supra)). Once the Magistrate takes cognizance of an offence, he acquires the jurisdiction and duty to proceed against those who are really involved in the commission of offence. He has also have to proceed against those whose names do not find place in the complaint or are stated to be not known. Cognizance is something prior to and does not necessarily mean commencement of a judicial proceeding against any one in particular. At the stage of taking cognizance, the Magistrate is not required to find out or evaluate whether there is any material against a particular person. (See Sharda Prasad Singh v. State of Bihar AIR 1977 SC 1754 : (1977 Cri LJ 1146); Trilok Singh v. Satya Deo Tripathy AIR 1979 SC 850 : (1980 Cri LJ 822) and Municipal Corporation of Delhi v. Purshotam Dass Jhunjhuwala AIR 1983 SC 158 : 1983 Cri LJ 172.
12. Since the act of taking cognizance is not a matter of empty formality, a revisional Court can interfere with an order of the Magistrate to issue process - (a) where the allegations made in the complaint or statements of witnesses recorded in support of the same taken on the face value do not make out any case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (b) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can never reach a conclusion that there is sufficient ground for proceeding against the accused; (c) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (d) where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of complaint by legally competent authority and the like.
13. The jurisdiction to quash the order taking cognizance can be exercised in rarest of rare cases. It should be the exception, but not the rule. The object behind this view is that the accused at the stage of framing charge can bring to the notice of the Court that there is no acceptable and/or legal material to proceed against him. The apex Court expressed similar view in Hareram Satpathy v. Tikaram Agarwala AIR 1978 SC 1568 ; (1978 Cri LJ 1687). Obviously, the person seeking for revision would be the accused because he is the person primarily prejudiced by an order taking cognizance. At his instance a revision is maintainable. But as indicated above, the scope of interference is very limited and the Court should be slow to exercise the jurisdiction, unless the continuance of the proceeding would be abuse of the process of the Court and/or the order taking cognizance is the result of complete nonapplication of mind. If the allegations do not constitute the offence, or the ingredients of the offence are non-existent or the allegations are mala fide, frivolous or vexatious, there may be justification for interference (See Mrs. Dhanalakshmi v. R. Prasanna Kumar AIR 1990 SC 494 :'(1990 Cri LJ 320). Appropriately, therefore, in a case where the accused feels that the order taking cognizance is unwarranted, he can raise the dispute at the time of framing charge. It is not without reason, legislature has prescribed two stages; one for taking cognizance and other for framing charge. There is no overlapping. In the former stage, accused has practically no role to play, while in the latter stage he comes to the forefront.
14. After delienating the legal position, it is to be seen how far the order passed by the learned trial Magistrate can be maintainable. The learned Magistrate has observed that there are materials to proceed against the accused persons, namely, Trilochan, Shantilata, Laxmikanta and Ramakanta in respect of the offences punishable under Sections 498A/420 read with Section 34, IPC, and Section 4 of the Dowry Act. It was observed that there was no material against accused Dhadi Rana and in respect of accused Prasanna Kumar Mishra there are materials only in respect of offence punishable under Section 420, IPC. Perusal of materials already on record shows that the conclusions cannot be faulted. However, if at any subsequent stage materials surface action as sanctioned in law shall be taken.
15. Coming to the applicability of Section 162 of the Code, as contended by the accused persons, the object and scope of the said provision has to be noted. Under said provision, no statement made by any person to a police officer in the course of an investigation can be referred to or used for any purpose by the Court or any one else at an enquiry or trial in respect of an offence under investigation at the time when such statement was made, except as provided in the provision itself. When the statement has not been made in the course of investigation of the offence in respect of which the trial is held, neither the main part of Section 162 nor the proviso thereto has any application. The provision does not prohibit the use of statements made by any person to a police officer in the course of an investigation under Chapter XII of that Code, in proceedings under the Code, in cases where the alleged offence which is under consideration in the proceedings, was not under investigation at that time when the statements were made. The investigation under Section 162 refers to an investigation with regard to the commission of either a non-cognizable offence in which order is given by a Magistrate to a police officer to enquire, or a cognisable offence in which a police officer is entitled to make an investigation without the order of a Magistrate; and the investigation refers to the commission of an offence, which was under investigation at a time when such statement was made. 'Investigation' as defined in Section 2(h) of the Code starts when the police officer takes a proceeding to the collection of evidence in relation to matters of fact under enquiry. Unless and until the matters of fact to be enquired into are known or ascertained, investigation cannot, be begun. It starts after such ascertainment when the police officer begins to collect evidence on those matters. Section 162 refers only to statements in the course of an investigation under Chapter XII into cognizable and non-cognizable offences. The ban under Section 162 does not apply to any statement to the police before starting investigation. All information received after the commencement of investigation is covered by Section 162. Statements prior to commencement of investigation will not be hit. A statement made to a police officer authorised to investigate a case before the investigation was begun by him, is not a statement made to an investigating officer as contemplated by Section 162. An Investigating Officer means an officer who is carrying on an investigation. Thus, there cannot be an investigating officer before the investigation begins. The words 'in the course of an investigation' in Section 162 mean in the course of an investigation made after the police officer decides to act under Section 150, and until he takes such a decision, his action under Sections 154 and 155 including recording of questions and answers in elucidation of an F.I.R. cannot be regarded as anything done in the course of an investigation. The question whether a statement was recorded during investigation or not is a question of fact. What is contemplated by Section 162 is an investigation under Chapter XII, namely, Sections 154 to 176. Any investigation under any other Chapter, for instance, investigation under Section 202 of the Code is outside the purview of Section 162. The first information report against the accused is clearly not a statement within the contemplation of Section 162, because it is not made in the course of an investigation.
16. In view of the above analysis, the plea about applicability of Section 162 of the Code is clearly not tenable. There is no material to show that the investigation was in progress. In any event, lodging of a first information report subsequently in a contextually different context and with the allegations which are dissimilar cannot bring in application of Section 162 of the Code.
17. In view of the aforesaid, both the Criminal Revisions and the Criminal Misc. Case are without any merit and are dismissed. However, any conclusions arrived at this juncture shall not weigh at the stage of trial, as they have been expressed while considering the cases presently presented by the parties.