Judgment:
H.R. Khanna, J.
1. This case was referred to a larger.Bench in pursuance o my order dated March 18, 1963 and the question which arises for determination is whether the trial Magistrate could pass an order for summoning the petitioners as accused persona even though the police challaned some other persons and not the petitioners.
2. The facts of the case are given in my referring order and are briefly as follows: --
3. Harbhaj made a report at police station Butana on December 10, 1961 that he and his son Dila Ram had been attacked by six persons, Fatta, Babu, Mulla, Hardeva, Risala and Ran Singh, while Harbhaj and his son were on the way to the police station as a result of which they received a number of injuries some of which were grievous. The police after investigation challaned Hardeva, Risala and Ran Singh under Sections 325 and 324 read with Section 34 of the Indian Penal Code. Fatta, Babu and Mulla, who are all brothers, were not challaned and their names were mentioned in column No. 2 of the challan. The Magistrate 1st Class Karnal, in whose Court the challan had been filed, recorded the statements of Harbhaj (P. W. 1) and his son Dila Ram (P. W. 2) and they both supported the allegation that they had been attacked and given injuries by the six assailants including Fatta, Babu and Mulla petitioners. Daulat Ram (P. W. 3) and Jaimal Singh (P.W. 4) were also examined as eye-witnesses and they corroborated the evidence of Harbhaj and Dila Ram.
Dr. Madan Lal Malhotra (P. W. 5) deposed with regard to the presence of eight injuries on the person of Harbhaj and one injury on the person of Dila Ram when he examined them on December, 9, 1961. An application was then filed by Harbhaj before the learned Magistrate that Fatta, Babu and Mulla had also joined in the assault and they too should be proceeded against along with Hardeva, Risala and Ran Singh. The learned Magistrate, after hearing the counsel for the parties, passed an order on June 25, 1962 to the effect that Fatta, Babu and Mulla be summoned as accused persons to stand trial along with other three accused for causing injuries to Harbhaj and Dila Ram. Revision petition against the aforesaid order was dismissed by learned Additional Sessions Judge, Karnal. Fatta, Babu and Mulla thereupon came up in revision to this Court.
4. When the case came up for hearing before me on March 18, 1963 it was pointed out that there was some conflict of view. To ensure an authoritative pronouncement on the subject I then directed that the papers might be laid before my Lord, the Chief Justice, for decision of the point by a larger Bench.
5. We have heard Mr. Jain on behalf of the petitioners, Mr. Chhibber on behalf of the Stata and Mr. Gandhi on behalf of the complainant, and are of the view that the trial Magistrate could pass the impugned order and the same is not vitiated by any illegality. Sub-Section(1) of Section 190 of the Code of Criminal Procedure reads as under:
190. (1) Except as hereinafter provided any Presidency Magistrate, District Magistrate, or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf may take cognizance of any offence .
(a) upon receiving a complaint of facts which constitute such offence:
(b) upon a report in writing of such facts made by any police-officer.
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
Perusal of the above sub-section goes to show that when a Magistrate acts under any of the clauses of the above Sub-Section he takes cognizance of an offence. The expression 'takes cognizance of an offence' cannot be equated to take cognizance of an offender and the normal rule is that when a Magistrate takes cognizance of an offence he takes cognizance of the case as a whole. As such he gets seized of the whole case and in the circumstances there appears to be no bar to his issuing process against all persons who appear to be involved in the offence. The contention that when a Magistrate takes cognizance under Clause (b) of the above Sub-Section upon a report made by a police-officer he is restricted to issuing process only to the persons challaned by the police is not warranted by the language of the sub-section. The matter has been dealt with on page 915 of Sohoni's Code of Criminal Procedure, 15th Edition, and the passage, which is based upon a number of authorities, reads as under:
Generally when a Magistrate has taken cognizance of an offence and proceeds with the trial of the case, it is his duty to proceed to deal with the evidence brought before him and to see that justice is done in regard to any person who might be proved by the evidence to be concerned in that offence. He is entitled to proceed against persons other than those against whom the complaint was filed if they appear to be involved in the offence. The ordinary rule is that when a Magistrate takes cognizance of an offence he takes cognizance of the case as a whole, and is empowered to summon all persons against whom there appears to be any reason for their prosecution even though their names are not mentioned for this purpose in the petition of complaint. But when he takes proceedings against other persons or in respect of offences not mentioned in the report if he is to be deemed as taking cognizance under Clause (c), then he must comply with the provisions of Section 191 and failure to do so would invalidate the conviction. It is to be noted that the expression 'cognizance of an offence' in this Section is not equivalent of the cognizance of an offender, for the definition of complaint includes a complaint that some person unknown has committed an offence.
In a Full _Bench case Mehrab v. The Crown AIR 1924 Sind 71, a question similar to the one involved in the present case arose and it was ob- served by Raymond, A. J. C., as under
Now it is important to observe that under Section 190, Criminal Procedure Code, a Magistrate takes cognizance of an offence and not of the offender and though the expression 'to take cognizance' is not defined in the Code, it is as interpreted in the case of Emperor v. Sourindra Mohan, ILR 37 Cal 412 as soon as a Magistrate applies his mind to the suspected commission of an offence' When therefore the police report in the present case under Section 173. Criminal Procedure Code, was sent up to the Magistrate he took cognizance of the offence of theft of six buffaloes under Section 190, Clause (b), and when he proceeded to deal with the evidence brought before him, it was certainly his duty to see that justice was done with regard to any other person that may be suspected of being concerned in the offence. The initiative was taken on the police report of the offence of theft and though the police may choose to place before the Magistrate for trial only one of the suspects, yet as the Magistrate was seized of the whole case as soon as he takes cognizance of it, he would be perfectly justified in issuing process against any other persons who he has reasons to believe, are implicated in the offence which he has taken cognizance of and his action against them would fall under Section 190, Clause (b) and not under Clause (c).
The fact that the police in a report submitted under Section 173 have not mentioned all the parties concerned in an offence which have been sent up for inquiry does not debar a Magistrate from taking action against persons other than those mentioned in the police report and he would tail in the discharge of one of the principal functions of his office were he to abstain from doing so.
The above dictum was followed by a Division Bench of Calcutta High Court in Saifar v. State of West Bengal, : AIR1962Cal133 .
6. Mr. Jain has relied upon an unreported case Oajjan Singh v. The State, Criminal Revn. No. 962 of 1961 decided by Bedi J. on September 11, 1961 (Punj). In that case a report was lodged with the police against tour persons. The police after investigation challaned two of them and reported that no case has been proved against the other two. When the challan was presented in Court the trial Magistrate ordered that the two persons who had not been challaned should be summoned as accused in the case. Those two persons then came up in revision and it was held that the proceedings against the two persons who had not been challaned by the police were liable to be quashed. Perusal of the facts of that case goes to show that it was conceded that the trial Magistrate, who was a Magistrate of the First Class, did not enjoy special powers as envisaged in Sub-Section(1) of Section 190 of the Code of Criminal Procedure.
This concession was not well founded because reference to Sohoni's Code of Criminal Procedure, 15th Edition, page 920, goes to show that according to Punjab Gazette notification of 1883, all Magistrates in the Punjab of the first and second class are invested with power to take cognizance of offences upon complaint and upon information, but not on their own knowledge or suspicion. Mention too is made of Punjab Gazette notification of 1878, according to which Magistrates of the first class have also power, subject to the control of the District Magistrate, to entertain cases without complaint. There is also reference to the above notification of 1883 in Piyare Lal v. Emperor of India, 20 Pun Re 1901 (Cri) and Hira Lal v. Emperor 7 Pun Re 1918 (Cri) : AIR 1918 Lab 196.
It would thus appear that the case Criminal Revn. No. 962 of 1961 (Punj) was decided upon a wrong assumption of facts. Reference in that case was also made to two cases, Harbir Singh v. The State. AIR 1952 Pepsu 29, and Mst. Ido V. Gainda Singh, Sobha Singh, AIR 1952 Pepsu 38, and Mr. Jain too has placed reliance upon those cases. Both those were cases in which the police had made recommendation under Section 173 of the Code of Criminal Procedure for cancellation of the cases. It was held that it was open to the Magistrate to accept the police recommendation or not. If he accepted the recommendation he was to cancel the case, but if he did not, all that he could do was to make a note that he did not agree with the police and did not accept their recommendation. It was also observed that it was open to the aggrieved party, if it so chose to put in a complaint in Court. In none of the above two Pepsu cases, in the circumstances, could it be said that the Magistrate had taken cognizance of the offence, while in the present case, as stated above, the trial Magistrate did take cognizance of the offence.
The present is also not a case in which the police had made a recommendation under Section 173 of the Code for the cancellation of the case. The above-mentioned two Pepsu cases are consequently clearly distinguishable and the petitioners, in our opinion, can derive no benefit from those cases.
7. As a result of the above, we hold that there was no legal impediment in the way of the trial Magistrate passing order for summoning the petitioners as accused persons even though the police had challaned some other persons and not the petitioners. The order has also not been shown to be incorrect or improper on merits. The revision petition, accordingly, fails and is dismissed.
I.D. Dua, J.
8. I agree.