Judgment:
Amaresh Ku. Singh, J.
1. Heard the learned Counsel for the petitioners and the learned Public Prosecutor.
2. This petition Under Section 482 Cr. P.C. is directed against the order dated 23rd September. 1996 passed by the learned Judicial Magistrate, Sumerpur, whereby the learned Judicial Magistrate took cognizance of the offences Under Sections 307, 341, 343, 429 and 120B IPC against the accused persons including the petitioners and proceeded against them Under Section 204 Cr. P.C. on the basis of the report submitted by the S.H.O. of the Police Station, Takhatgarh after completing investigation relating to F.I.R. No. 63/96 Police Station Takhatgarh.
3. On 31st May, 1996 at 12.15 a.m. Rama Shanker Avasthi lodged the F.I.R. No. 6/96 at Police Station, Takhatgarh. According to the allegations made in the FIR, Rama Shanker Avasthi started from Takhatgarh at 8.30 a.m. in a Ambassador car, which was being driven by driver Lalit Singh. Deva Ram Choudhary, Ummaid Mal and Jetha Ram also accompanied him. At about 11 p.m. they took some food at a Restaurant near Sandarao crossing. At 11.45 p.m. they started from that place. Some persons, who were in a jeep followed the car in which the complainant was travelling. At some distance from village Balana, the jeep over took the car and stopped in front of the car. Six persons stepped down from the jeep, they were armed with lathis and rods. They damaged the car and inflicted injuries to the complainant Rama Shanker and the driver Lalit Singh. One of the assailants was possessing 'dharia' and he was aged about 25 to 30 years. Above mentioned incident occurred at 12.05 a.m.
4. On the basis of the first information report given by Shri Rama Shanker, the police registered a case under Sections 147, 341, 323, 149 and 427 IPC and conducted investigation. During investigation the injuries of Rama Shanker and Lalit Singh were medically examined. Four simple injuries caused by blunt weapon were found on the body of Rama Shanker and four simple injuries caused by blunt weapon was found on the body of Lalit Singh. Neither injuries of Rama Shanker and Lalit Singh were caused with a sharp weapon, nor they were grievous and much less dangerous of life.
5. After completing investigation, the police submitted the charge sheet under Section 173 Cr. P.C. In the charge sheet, the police alleged that offence under Sections 307, 341, 323. 427 and 120B IPC were committed. The charge sheet was submitted against Jagdish Singh, Jugal Kishore, Laxman Singh, jaswant Singh and Smt., Yasoda.
6. During investigation, Laxman Singh and Smt. Yasoda were released on bail in compliance with an order issued by this Court under Section 438 Cr. P.C. Jagdish Singh was arrested and he was remanded to the judicial custody. Jaswant Singh was released on bail. On 23rd September, 1996 when the challan was submitted before the Court, Jagdish Singh was in custody and Jaswant Singh, who was on bail were present in Court. Therefore, on process were issued against them under Section 204 Cr. P.C. Smt. Yasoda and Laxman Singh were on bail granted under Section 438 Cr. P.C, were not present, therefore, their bail bonds were forfeited and bailable warrants were directed to be issued against them. The learned Judicial Magistrate in his order dated 23rd September, 1996 observed that on the basis of the charge sheet submitted by police and material on record, he took cognizance of the offences under Sections 307, 341, 323, 427 and 120B IPC. He did not give any reasons for arriving at the conclusion that the offence under the above mentioned Sections of the Indian Penal Code were made out by the facts stated in the charge sheet and the documents attached thereto.
7. The learned Counsel for the petitioners has submitted that the impugned order dated 23rd September, 1996 passed by the lower Court is illegal, because the facts do not make out an offence under Section 307 IPC and the learned Judicial Magistrate has not applied his mind to the charge sheet and the documents attached thereto to find out whether the facts disclosed therein constitute the offence under Section 307 IPC and other offences. He has therefore, prayed that the impugned order dated 23rd September, 1996 and proceedings subsequent thereto be quashed.
8. The learned Public Prosecutor has supported the order passed by the learned Additional Chief Judicial Magistrate and prayed for the dismissal of this petition.
9. I have carefully considered the submissions made by the learned Counsel for the petitioners and the learned Public Prosecutor. It is true that accused Jaswant Singh and Smt. Yasoda had been released on bail granted to them under Section 438 Cr. P.C but it cannot be said that the Court had taken cognizance of the offences at the time of passing the order under Section 438 Cr. P.C. Similarly, it cannot be said that the Court took cognizance of the offences when bail was granted to Jaswant Singh, one of the co-accused. Police had arrested the accused Jagdish Singh and he was remanded to custody, but there is nothing to show that the learned Judicial Magistrate took cognizance of any offence at the time when Jagdish Singh was remanded to judicial custody during investigation. Since, cognizance of the alleged offences had not been taken prior to the submission of the charge sheet by the police, it was necessary for the learned Judicial Magistrate to judicially consider whether the facts mentioned in the charge sheet and the documents attached thereto constituted the offences, which were alleged in the charge sheet. It was further necessary for the learned Judicial Magistrate to consider whether there were sufficient grounds to proceed against the accused persons under Section 204 Cr. P.C. for any offence of which cognizance was taken.
10. In Hanuman Singh v. State of Rajasthan (Cr. P.C. (Raj.) 1996, 719), it was observed:
In light of the above reasons it is clear that cognizance under Section 190 of the Cr. P.C. is taken at the time of point when the case is instituted in the Court. So long cognizance is not taken a case cannot be said to be Instituted in the Court of Magistrate in view of the ruling of the Supreme Court Jamuna Singh v. Bhadai Shah AIR 1964 page 1541. Cognizance under Section 190 of the Cr. P.C. is taken of the offence and not of the offenders and it also well established that when a Magistrate taken cognizance under Section 190 of the Cr. P.C, he takes cognizance of all offences constituted by the facts brought to his notice unless taking of cognizance of one or more offences is prohibited by law. Therefore when a Magistrate takes cognizance under Section 190 of the Cr. P.C. it is not necessary that the offender should be known to him at that time and as pointed out by Supreme Court in Raghuvansh Dubey v. State of Bihar : 1967CriLJ1081 after taking cognizance of the offence it is the duty of the Magistrate to find out who the offenders are and if he comes to the conclusion that some persons other than those sentenced by the police are also involved he should issue process under Section 204 of the Cr. P.C. to enforce their attendance. The crucial question is whether a Magistrate is bound to take cognizance of the offences alleged by the complainant or by the Police before him or he has a judicial discretion to take cognizance in appropriate cases and refuse to take cognizance if there be reasons for not doing so. The contention that if the police in its report under Section 173 of the Cr. P.C. alleges that commission of offence then the Magistrate is bound to take cognizance of such offence ignores the fact that under Section 190 of the Cr. P.C: Magistrate is not bound to take cognizance of the offences alleged before him. He has a discretion though a judicial one to apply his mind to the material placed before him and thereafter decide whether he should or should not take cognizance.
11. In Ahhinandan Jha v. Dinesh Mishra : 1968CriLJ97 , the Hon'ble Supreme Court observed:
Now, the question as to what exactly is to be done by a Magistrate, on receiving a report, under Section 173, will have to be considered. That report may be in respect of a case, coming under Section 170, or one coming under Section 169. We have already referred to Section 190, which is the first section in the group of sections headed 'Conditions requisite for Initiation of Proceedings.' Sub-section (1), of this Section will cover a report sent. under Section 173. The use of the words may take cognizance of any offence.' in Sub-section (1) of Section 190, in our opinion, imports the exercise of a 'judicial discretion', and the Magistrate, who received the report under Section 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this it follows, that it is not as if, that the Magistrate is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts, disclosed in the report do not make out an offence for taking cognizance of he may take the view the there is no sufficient evidence to justify an accused being put on trial On either of these grounds the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the, report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under Section 190(1)(b) of the Code. This will be the position, when the report, under Section 173, is a charge-sheet
12. In Hanuman Singh v. State of Rajasthan (supra) at page 730 of the report, it was observed:
Viewed in the above light, cognizance by the Magistrate under Section 190 of the Cr. P.C. cannot be allowed to be taken in a mechanical way. Since the functions of the Magistrate is judicial and a judicial function by its nature is a function which is to be performed independently by the Officer on whom judicial power is conferred, the Magistrate cannot be allowed to be guided by any person or authority in the matter performance of judicial duties, save when he is acting under the orders of a superior Court. The only guidance which can be given to the Magistrate in such cases is by means of principles laid down by law and judicial precedents. It is true that under Section 190 of the Cr. P.C. Magistrate has a discretion which must be exercised judicially, but it does not mean that the Magistrate has no discretion in the matter of taking cognizance and is bound to take cognizance of every offence alleged before him.
13. In the instant case, the learned Judicial Magistrate has not given any reason in the order dated 23rd September, 1996 for taking cognizance of the offence under Sections 307 and 120 B IPC. In the instant case, the facts contained in the F.I.R. by Shri Rama Shanker Avasthi did not contain any such facts as may be said to constitute the offences under Sections 307 and 120B IPC. So far as the injuries of Rama Shanker Avasthi and his driver Lalit Singh are concerned, each of them received four simple injuries caused with the blunt weapons. Neither the injuries were caused with any sharp object, nor they were grievous in nature. None of the injuries were on a vital part or dangerous to life. Even the names of the assailants were not given in the F.I.R. The F.I.R. was registered in respect of offences punishable under Sections 147, 341, 323, 149 and 427 IPC. This shows that the police officer, who registered the FIR was himself of the opinion that the facts disclosed in the FIR did not constitute any offence under Sections 307 and 120B IPC. In the charge sheet submitted by the police under Section 173 Cr. P.C. no reasons have been given why the police officer came to the conclusion that the offences under Sections 307 and 120B were committed. In these circumstances, it was necessary for the learned Judicial Magistrate before whom the charge sheet under Section 173 was submitted to apply his mind independently to the facts mentioned in the charge sheet as well as the documents attached thereto and find out by judicial application of mind whether the offences under Sections 302 and 120B, which were added by the police after completing investigation were in facts constituted by the fact mentioned in the charge sheet.
14. It was also necessary for the learned Judicial Magistrate to consider whether there were sufficient grounds to proceed against the accused persons Under Section 204 Cr. P.C, because the powers under Section 204 Cr. P.C. can be exercised by the Magistrate only if he is satisfied that there are sufficient grounds to proceed against the person whom he considers an offender.
15. For the reasons mentioned above, it must be held that the learned Judicial Magistrate has not applied his mind judicially to the charge sheet and the documents attached thereto for the purpose of ascertaining whether the offences under Sections 307 and 120B IPC are constituted by the facts mentioned in the charge sheet and the documents attached thereto, nor he has applied his mind to the question whether there are sufficient grounds to proceed against the accused persons under Section 204 Cr. P.C. On the other hand, he appears to have mechanically register the case observing that a challan was submitted before him and he has taken cognizance of the offences mentioned in the challan. Such a cryptic order, which in the facts and circumstances of the case appears to have been passed mechanically without applying the judicial mind, can hardly be said to be a legal order required by Sections 190 and 204 Cr. P.C. I have therefore, no hesitation in coming to the conclusion that the impugned order 23rd September, 1996 is not in accordance with law and initiation of proceedings against the accused persons in pursuance of this amount to abuse of the process of the Court.
16. For the reasons mentioned above, the order dated 23rd September, 1996 by which cognizance of the offences under Sections 307 and 120B was taken by the Judicial Magistrate is hereby quashed and set aside. The learned Civil Judge (Jr. Division) and Judicial Magistrate, Sumerpur is hereby directed to consider afresh, after giving an opportunity of being heard to the accused persons, the Public Prosecutor and the complainant Rama Shanker Avasthi whether the facts prima facie appearing from the charge sheet and the documents attached thereto constitute the offences under Sections 307, 341, 323, 427 and 120B IPC or any other offence and whether there are sufficient grounds to proceed under Section 204 Cr. P.C. against Jagdish Singh, Laxman Singh, Smt. Yasoda and Jaswant Singh or any other person, whose name might be appearing in the evidence collected by the police and pass orders in accordance with law.
17. The stay granted by this Court, on 9th October, 1996 is hereby vacated. Needless to say that the question of committing the case to the Court of Sessions would arise only if on reconsideration of the facts one or more offences triable by the Court of Sessions are made out and sufficient grounds to proceed against one or more accused for such offence is found to be present by the learned Judicial Magistrate.
18. The petition is decided accordingly.