ORDER
B.P. Das, J.
1. This application under Section 482 of the Code of Criminal Procedure. 1973 (in short 'Cr.P.C.') is directed against the order dated 9.11.2000 (Annexure-2) passed by the learned Judicial Magistrate of First Class. Khallikote, in G.R. Case No. 341 of 1998 taking cognizance against the petitioners.
2. Bereft of unnecessary details, the facts leading to the present application are that basing on an F.I.R. lodged on 28.11.1998 at Rambha Police Station, a case under Sections 323/379/437/34, I.P.C. was registered against the accused persons including the present petitioners being Ramba P.S. Case No. 145/98 and the same was subsequently registered as G.R. Case No. 341/98 on the file of the learned J.M.F.C., Khallikote. After the investigation was completed, final form was submitted in terms of Section 173, Cr. P.C. for the offences under Sections 143/323/325/427/149, I.P.C. Thereafter the learned Magistrate took cognizance of the aforesaid offences by order dated 6.3.1999.
On 9.11.2000 the informant filed an application before the learned Magistrate with a prayer to take cognizance under Sections 148/452/354/325/323/395/427/149, I.P.C. The learned Magistrate considering the aforesaid application passed the impugned order (Annexure-2) taking cognizance against the petitioners and Ors. under Sections 452/459/395, I.P.C. in addition to the other offences of which cognizance had already been taken and fixed a date for production of the accused persons. This order is under challenge in the present application on the grounds, namely, (i) the learned Magistrate cannot take cognizance for the second time because of the reason that the order of cognizance is a final order and review/alteration/amendment of such order is not permissible; and (ii) no prima facie case was made out under Section 395, I.P.C. During the course of argument, it was submitted that Section 362, Cr. P.C. is a bar to alter/ amend the order.
3. Let me take up the first ground for consideration.
In this regard, learned counsel for the petitioners relies upon a decision of this Court in District Manager, F.C.I. v. Jayashankar Mund. 67 (1989) C.L.T. 426, wherein it was held thus :
'..the learned Chief Judicial Magistrate, Berhampur, had no jurisdiction to review his own order passed earlier and practically setting aside the, same, thereby assuming the role of a Court of revision. If he had any doubt about the correctness of the earlier order, it was open to him to draw the attention of the Court of Session or the High Court so as to initiate a suo motu criminal revision under Sections 399 and 401 of the Code.....'
In the above case, final report was submitted by the investigating agency finding therein that no prima facie case for an offence under Section 409. I.P.C. was made out. Thereafter a protest petition was filed by the informant on perusal of which the learned Chief Judicial Magistrate taking cognizance under Section 406, I.P.C. issued summons to the accused persons. The accused persons challenged the same before the C.J.M., who after hearing both the parties came to hold that the protest petition was in the nature of a complaint petition under Section 190(1)(a) of the Cr. P.C. and after acceptance of the final report in the vigilance case, the Court could not have taken cognizance on the basis of the protest petition. Accordingly, he reviewed the order of cognizance passed on 14.12.1983, set aside the same and dismissed the protest petition and discharged the accused persons. This order was negatived by this Court in the aforesaid decision.
The learned counsel for the petitioner relies upon another decision of the apex Court in Hari Singh Mann v. Harbhajan Singh Bajwa, reported in AIR 2001 S.C. 43, wherein it was held that - 'There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.' It was further held therein that - 'Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error.'
In support of his contention the learned counsel next relies upon the decision of the apex Court in Abhinandan Jha v. Dinesh Mishra, AIR 1968 S.C. 117, and draws my attention to the following observations :
'Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial.'
Lastly the learned counsel refers to a case of this Court in Gobinda Chandra Kuanr v. State of Orissa, *(2001) 21 OCR 549, where a similar question was dealt with and it was held in para 5 as follows :
'5. In view of what has has been stated by the Apex Court and the language used in Section 323, Cr. P.C. I am of the view that it was open for the Magistrate to take cognizance of offence under Section 316 of the Penal Code after submission of charge-sheet looking into the case record. If the learned Magistrate failed to take cognizance at that stage and took cognizance of offences in respect of which charge-sheet had been filed, he has no authority to take further cognizance on the basis of an application filed by the A.P.P. in exercise of powers under Section 323 of the Cr. P.C. as by that time enquiry was over and trial had not commenced. It was open for the learned Magistrate to take cognizance of the other offence at the time of trial and has no jurisdiction to take cognizance again in respect of any other offence after conclusion of inquiry and before commencement of trial.'
4. Before going to examine the correctness of the submission made by the petitioners and whether the aforesaid decisions are applicable to the facts and circumstances of the present case, it is worthwhile to have a look at the provisions of Section 190 of the Cr. P.C. which are re-produced below :
'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 any 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.'
The sum and substance of the argument of the learned counsel for the petitioners is that the three alternatives available under Clauses (a), (b) and (c) of Sub-section (1) of Section 190, Cr. P.C. upon which the Magistrate may take the proceeding are mutually exclusive. In other words, the Magistrate can take cognizance under one of such clauses or alternatives to the exclusion of others.
In this regard I may refer to a Division Bench decision of this Court in Hrushikesh v. Krushna Chandra Ghadei, AIR 1958 Orissa 104, wherein a similar question was raised and it was argued that once the Magistrate had accepted the final report of the police and declared the case to be false, he had no jurisdiction. on the basis of the protest petition filed by the complainant, to revise his previous opinion, while deciding the issue raised above. The Division Bench of this Court in the aforesaid case referred to a Single Judge decision in Mahabir Prasad Agarwalla v. The State. AIR 1958 Orissa 11, wherein a view was taken that the provisions of Section 190, Cr. P.C. are not mutually exclusive. Reliance in both the aforesaid decisions of this Court was placed upon a Full Bench decision of the Patna High Court in Bharat Kishorelal v. Judhistir Modak. AIR 1929 Patna 473. wherein it was held that Clauses (a), (b) and (c) of Sub-section (1) of Section 190. Cr. P.C. are not mutually exclusive. In Hrushikesh's case (supra), while affirming the view taken by the learned Single Judge in Mahabir Prasad's case (supra) it was held that 'even though the final report of the Police may be accepted by the Magistrate in the first instance, there is nothing illegal if subsequently he revises his opinion and calls for charge-sheet.....'
Another Full Bench of the Patna High Court in Gajendra Swaroop Srivastava v. Baleshwar Prasad Kesari, 1988 (2) Crimes 334, summarised the aforesaid point taking the aid of Bharat Kishorelal's case (supra) and decided as follows :
'It is in the light of the above that one has to see the width with which the power to take cognizance of offences by Magistrate has been couched in the three Clauses (a), (b) and (c) of Section 190(1), It nowhere follows from the language that these three clauses are mutually exclusive and hermetically sealed from each other. It is perhaps significant to note that the three clauses are not devided by the word 'or' from each other. In the well known case of R.S. Nayak v. A.R. Antulay. 1984 (2) SCC 183, their Lordships elaborated the four methods of taking cognizance of an offence. That these are not mutually exclusive indeed seems manifest both from the language of Section 190 and equally from precedent. There appears no legal mandate whatsoever that cognizance must be taken either under Clause (a) or Clause (b) or Clause (c) separately and that they do not intermingle or overlap each other. Yet again in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 11 7, their Lordships clearly held that even in the case of a police report under Section 190(1)(b) although the Magistrate cannot direct the filing of a charge sheet, he can nevertheless take cognizance under Section 190(l)(c). It is thus plain that on high authority clauses (b) and (c) may overlap and on parity of reasoning there can possibly be no legal bar with regard to clauses (a) and (b) or (a) and (c). It thus seems manifest that at least for the purposes of taking cognizance there is no watertight compartmentalisation of the said clauses under which a Magistrate may choose to issue process. Therefore, any hermetic sealing or compartmentalisation 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. To conclude on this aspect, the answer to question No. (i) framed at the outset is rendered in the negative and it is held that Clauses (a), (b) and (c) of Sub-section (1) of Section 190 of the Code of Criminal Procedure, 1973 pertaining to cognizance of offences by the Magistrate under the said section are in no way mutually exclusive.'.
Even in Abhinandan Jha's case (supra), which was cited by the learned counsel for the petitioners, the apex Court while visualising an eventuality where the Magistrate disagrees with the opinion of the police, held as follows :
'.......There is certainly no obligation, oh 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 take 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__..'
(The word suspicion', after' the amendment, has been omitted in the new Cr. P.C.)
5. In the light of the aforesaid judicial pronouncements it is to be considered, whether it can be construed that the order of cognizance taken in the present case is sacrosanct or cannot be touched even by the same Magistrate, even though some materials were brought to his notice by way of a petition filed by the informant drawing his attention that a case under Section 395, I.P.C. is made out.
Section 190, Cr. P.C. contemplates taking cognizance which occurs as soon as the Magistrate applies his mind to the suspected commission of an offence. At the time of taking cognizance, sine quo non is the existence of a prima facie case and not the possibility of conviction or acquittal. The Magistrate has to be satisfied about the existence of a prima facie case.
6. As the three clauses of Section 190(1) are not mutually exclusive, even after taking cognizance under Section 90(l)(b), Cr. P.C the Magistrate would be well within his jurisdiction to take cognizance of the offence not included in the charge-sheet by exercising his power under Section 190(l)(c), Cr. P.C., as has been rightly done in the case at hand.
7. The bar of Section 362, Cr. P.C. as pointed out by the learned counsel for the petitioners, is absolutely not applicable to the facts and circumstances of the present case, as the same is only applicable to cases where judgment was. pronounced. Hence, the ratio of the judgment of the apex Court in Hari Singh Mann's case (supra) relied upon by the learned counsel for the petitioners, is not applicable to the facts and circumstances of the present case. Resultantly, the second plank of argument of the learned counsel for the petitioners fails.
8. Accordingly, the application is dismissed and the impugned order of the learned J.M.F.C., Khallikote, vide Annexure-2, is confirmed. However on the prayer of the learned counsel for the petitioners that the petitioners shall surrender before the learned J.M.F.C., Khallikote. by 15.3.2002 and move for bail, I direct that in case the petitioners so surrender and move for bail, they shall be released on bail of rupees five thousand each with one surety each for the like amount to the satisfaction of the learned J.M.F.C. in connection with G.R. Case No. 341/98 corresponding to Rambha P.S. Case No. 145/98.