Veer Singh and ors. Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
criminal - complaint - cognizance - sections 34,323 and 302 of indian penal code,1860(ipc) and sections 173 and 190 of code of criminal procedure,1973(cr.p.c) - appellants prosecuted by trial court under sections 34, 302 and 323 of ipc - appellants filed petition for quashing of proceedings on ground that trial court had no power to take cognizance against appellants - appellant contended that offence under section 302 of ipc exclusively triable by court of sessions and in sessions triable cases magistrate has no power under section 190 of cr. pc. to take cognizance for those persons against whom police has not filed challan - held, as per section 190 of cr.pc, magistrate can take cognizance of any offence on the basis of police report of such matter - no distinction has been inserted in provisions on point that magistrate shall only be entitled to take cognizance of offences triable by him and not of those offences which are exclusively triable by court of sessions - further, if cognizance is taken on any offences, action is to be taken against all persons who are responsible for offence on basis of material collected by investigating agency - thus, if magistrate taking cognizance of offence comes to conclusion that other person/s against whom no challan/report under section 173 of cr.pc not filed and it appears that they are responsible, than magistrate can also issue process against them - accordingly, present petition dismissed as devoid of merits - - the aforementioned observation has been endorsed by the apex court in the case of rajinder prasad (supra) 2002 cri lj 90. while dealing a case having offence exclusively triable by sessions court, in para 11 of this judgment the following observation has been recorded -(2) a magistrate has jurisdiction to take cognizance of offences against such person also who have not been arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. having taken cognizance of the offence, a magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well.orderb.m. gupta, j.1. petitioners by shri n. p. dwivedi, advocate. respondent/state by shri a.s. yadav, p. l. complainant by shri a. k. barua, senior advocate with shri arun barua, advocate.2. heard finally at motion stage.3. the instant petition is for invoking the inherent powers of this court under section 482 of cr. p.c. impugning the order dated 8th april, 2006 passed by the chief judicial magistrate, datia in criminal case no. 760/04, by which the learned magistrate has taken cognizance against the petitioners for the offence punishable under sections 302 and 323 read with section 34 of i.p.c.4. the main contention of shri dwivedi, the learned counsel for the petitioners, is that the offence under section 302, i.p.c. is exclusively triable by a court of sessions and in sessions triable cases a magistrate has no power under section 190 of cr. p.c. (hereinafter referred to as 'the code') to take cognizance for those persons against whom police has not filed the challan. in support, he has drawn attention on the following judgments:1. raj kishore prasad v. state of bihar and anr. 1996 (1) supreme (cri) 493 : 1996 cri lj 2523.2. dharam pal and ors. v. state of haryana and anr. (2006) 1 scc (cri) 273.3. kishori singh and ors. v. state of bihar and anr. (2006) 1 scc (cri) 275 : 2001 crilj 123.4. n. dillip reddy and ors. v. state of orissa 2005 cri lj 4477 (ori.).5. countering the contentions, shri barua, the learned senior advocate for the complainant, has submitted that the powers of the magistrate under section 190 of the code are unfettered. in all cases, in which he has power to conduct enquiry and the trial, he can take cognizance for such persons against whom no challan has been filed by the police. magistrate is having supervisory powers over the investigating agency and he is not bound by the conclusion arrived at by that agency. in support, he has drawn attention on the following judgments:1. raghubans dubey v. state of bihar 1967 cri lj 1081.2. rajinder prasad v. bashir and ors. 2002 scc (cri) 28 : 2002 cri lj 90.3. rukvendra singh and ors. v. state of m.p. and anr. 2004 (1) crimes 651 : 2004 cri lj 1489.6. shri yadav for the state has supported the impugned order.7. judgment in the case of raghubans dubey (supra) appears the first judgment of the apex court on the point. although, it relates with the provision of the code of 1898 but, the provisions on the point in dispute are similar in the criminal procedure code of 1973. section 190 of the code goes 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 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.8. on perusal of the provision, it appears by clause (b) of sub-section (1), that the magistrate can take cognizance of any offence upon a police report of such facts. no distinction has been inserted in the provision on the point that a magistrate shall be entitled to take cognizance of the offences triable by him and not on those offences which are exclusively triable by court of sessions. there is no dispute that the instant case is based on a police report, which is covered by sub-clause (b) of sub-section 1 of section 190 of the code. it also appears that cognizance of an offence is to be taken and not of the offenders. meaning thereby, if the cognizance is taken on any of the offences, action is to be taken against all persons who are responsible for the offence on the basis of the material collected by investigating agency. thus, if a magistrate taking cognizance of an offence comes to a conclusion that the other person/s against whom no challan/report under section 173 of the code has been filed appears responsible, he can issue process against them.9. although the word cognizance has not been defined anywhere in cr. p. c, however, it is settled that when a magistrate applies his mind on a case for taking further steps as provided by the law, it is said that the cognizance has been taken. in the cases, exclusively triable by the court of sessions, a magistrate has to take further steps as provided by the code for supplying of the copies to the accused, informing the public prosecutor, remanding the accused into custody etc. and thereafter committing the case to the court of sessions. for taking these steps he has to apply his mind to the case and is to take further steps as provided. he has also to apply his mind as to whether the offence is exclusively triable by court of sessions or not. although a magistrate is not empowered to go into the merits of the offence at this initial stage, as to whether a particular offence under which challan has been filed by the police, is made out or not, yet for the aforesaid other considerations a magistrate has to apply his mind and thus even if before committing of the case, he takes cognizance. in view of this at the time of taking such cognizance about an offence, if a magistrate comes to the conclusion that a particular person against whom challan has not been filed, also appears to have committed the offence, can issue process against such person. if at this stage, this step is not taken, then only at the stage of the 319 of cr. p.c. after recording evidence this step will have to be taken and by that process the witnesses already examined will have to be recalled as per the law of the day.10. in the case of raghubans dubey (supra), the hon'ble apex court has observed that magistrate is empowered to take cognizance under section 190 of the code even in the cases which are exclusively triable by the court of sessions. the aforementioned observation has been endorsed by the apex court in the case of rajinder prasad (supra) 2002 cri lj 90. while dealing a case having offence exclusively triable by sessions court, in para 11 of this judgment the following observation has been recorded -(2) a magistrate has jurisdiction to take cognizance of offences against such person also who have not been arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. section 209 refers back to section 190, as is evident from the words 'instituted on a police report' used in section 190(l)(b) of the code. the cognizance taken by the magistrate was of the offence and not of the offenders. having taken cognizance of the offence, a magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well.after considering the various pronouncement of the apex court another bench of this court in the case of rukvendra singh (supra) 2004 cri lj 1489 has also taken the same.11. the case of raj kishore prasad (supra) 1996 cri lj 2523 the hon'ble apex court was considering the scope of sections 209 and 319 of the code. nowhere in the judgment the provisions of section 190 of the code has been considered. similar situation appears in the case of kishori singh (supra). although in para 6 of the learned counsel for the state had sought support of his contention, while highlighting of section 190 of code, yet in para 8 of the judgment while following observation of the apex court in the case of raj kishore prasad (supra) 1996 cri lj 2523 and one more judgment in the case of ranjit singh v. state of punjab (1998) scc criminal 1554 : 1998 cri lj 4618, the similar observation has been given as in the case of raj kishore prasad. but vide order dated 1-12-04 delivered in the case of dharam pal (supra) while disagreeing with the observation of the court in the case of ranjit singh (supra) the same has been referred for a larger bench by a three judges of the court. in view of this, as it has been mentioned hereinabove in the case of raj kishore prasad, there is no observation by the hon'ble apex court on section 190 of the code and the another case which has been followed in the case of kishori singh 2001 cri lj 123 (sc) that is the case of ranjit singh has been referred to the larger bench. vide aforementioned order dated 1-12-04, the hon'ble apex court has referred the observation of the court in the ease of ranjit singh's case to a larger bench, however it is also observed in last lines of para 2 that -- 'it, however, appears that in a case triable by the court of sessions, in law, a magistrate would have no power to summon for trail an accused mentioned in column 2 to be tried with other accused and, to that extent, the impugned order of the high court may have to be set aside, but immediately the question involved herein would arise when the matter would be placed before the sessions court. this observation is also not based on the powers of a magistrate under section 190 of the code. because while concluding the order in para 3 in the case of dharam pal (supra) the hon'ble court vide following sentences, has referred the decision in the case of ranjit singh to a larger bench --3. prima facie, we do not think that the interpretation reached in ranjit singh case is correct. in our view, the law was correctly enunciated in kishun singh case. since the decision in ranjit singh case is of three judge bench, we direct that the matter may be placed before the hon'ble the chief justice for placing the same before a larger bench.12. thus the facts being different and also not being an observation on section 190 of the code, the ratio of aforementioned three judgments in raj kishore prasad, dharam pal and kishori singh 1996 cri lj 2523 does not help the contention of shri dwivedi, the learned counsel for the petitioners. in view of the aforementioned judgments in the case of raghubans dubey and rajinder prasad 1967 cri lj 1081, the judgment in the case of dillip reddy (2005 cri lj 4477) (ori)) passed by a bench of orissa high court, no longer deserves to be considered.13. consequently, following the observation in the case of raghubans and rajinder prasad (supra), the petition being devoid of merits, deserves to be dismissed. hence, it is dismissed.

Judgment:
ORDER

B.M. Gupta, J.

1. Petitioners by Shri N. P. Dwivedi, Advocate. Respondent/State by Shri A.S. Yadav, P. L. Complainant by Shri A. K. Barua, Senior Advocate with Shri Arun Barua, Advocate.

2. Heard finally at motion stage.

3. The instant petition is for invoking the inherent powers of this Court under Section 482 of Cr. P.C. impugning the order dated 8th April, 2006 passed by the Chief Judicial Magistrate, Datia in Criminal Case No. 760/04, by which the learned Magistrate has taken cognizance against the petitioners for the offence punishable under Sections 302 and 323 read with Section 34 of I.P.C.

4. The main contention of Shri Dwivedi, the learned Counsel for the petitioners, is that the offence under Section 302, I.P.C. is exclusively triable by a Court of Sessions and in sessions triable cases a Magistrate has no power under Section 190 of Cr. P.C. (hereinafter referred to as 'the Code') to take cognizance for those persons against whom police has not filed the challan. In support, he has drawn attention on the following judgments:

1. Raj Kishore Prasad v. State of Bihar and Anr. 1996 (1) Supreme (Cri) 493 : 1996 Cri LJ 2523.

2. Dharam Pal and Ors. v. State of Haryana and Anr. (2006) 1 SCC (Cri) 273.

3. Kishori Singh and Ors. v. State of Bihar and Anr. (2006) 1 SCC (Cri) 275 : 2001 CriLJ 123.

4. N. Dillip Reddy and Ors. v. State of Orissa 2005 Cri LJ 4477 (Ori.).

5. Countering the contentions, Shri Barua, the learned senior advocate for the complainant, has submitted that the powers of the Magistrate under Section 190 of the Code are unfettered. In all cases, in which he has power to conduct enquiry and the trial, he can take cognizance for such persons against whom no challan has been filed by the police. Magistrate is having supervisory powers over the investigating agency and he is not bound by the conclusion arrived at by that agency. In support, he has drawn attention on the following judgments:

1. Raghubans Dubey v. State of Bihar 1967 Cri LJ 1081.

2. Rajinder Prasad v. Bashir and Ors. 2002 SCC (Cri) 28 : 2002 Cri LJ 90.

3. Rukvendra Singh and Ors. v. State of M.P. and Anr. 2004 (1) Crimes 651 : 2004 Cri LJ 1489.

6. Shri Yadav for the State has supported the impugned order.

7. Judgment in the case of Raghubans Dubey (supra) appears the first judgment of the Apex Court on the point. Although, it relates with the provision of the Code of 1898 but, the provisions on the point in dispute are similar in the Criminal Procedure Code of 1973. Section 190 of the Code goes 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 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.

8. On perusal of the provision, it appears by Clause (b) of Sub-section (1), that the Magistrate can take cognizance of any offence upon a police report of such facts. No distinction has been inserted in the provision on the point that a Magistrate shall be entitled to take cognizance of the offences triable by him and not on those offences which are exclusively triable by Court of Sessions. There is no dispute that the instant case is based on a police report, which is covered by Sub-clause (b) of Sub-section 1 of Section 190 of the Code. It also appears that cognizance of an offence is to be taken and not of the offenders. Meaning thereby, if the cognizance is taken on any of the offences, action is to be taken against all persons who are responsible for the offence on the basis of the material collected by investigating agency. Thus, if a Magistrate taking cognizance of an offence comes to a conclusion that the other person/s against whom no challan/report under Section 173 of the Code has been filed appears responsible, he can issue process against them.

9. Although the word cognizance has not been defined anywhere in Cr. P. C, however, it is settled that when a Magistrate applies his mind on a case for taking further steps as provided by the Law, it is said that the cognizance has been taken. In the cases, exclusively triable by the Court of Sessions, a Magistrate has to take further steps as provided by the Code for supplying of the copies to the accused, informing the public prosecutor, remanding the accused into custody etc. and thereafter committing the case to the Court of Sessions. For taking these steps he has to apply his mind to the case and is to take further steps as provided. He has also to apply his mind as to whether the offence is exclusively triable by Court of Sessions or not. Although a Magistrate is not empowered to go into the merits of the offence at this initial stage, as to whether a particular offence under which challan has been filed by the police, is made out or not, yet for the aforesaid other considerations a Magistrate has to apply his mind and thus even if before committing of the case, he takes cognizance. In view of this at the time of taking such cognizance about an offence, if a Magistrate comes to the conclusion that a particular person against whom challan has not been filed, also appears to have committed the offence, can issue process against such person. If at this stage, this step is not taken, then only at the stage of the 319 of Cr. P.C. after recording evidence this step will have to be taken and by that process the witnesses already examined will have to be recalled as per the law of the day.

10. In the case of Raghubans Dubey (supra), the Hon'ble Apex Court has observed that Magistrate is empowered to take cognizance under Section 190 of the Code even in the cases which are exclusively triable by the Court of Sessions. The aforementioned observation has been endorsed by the Apex Court in the case of Rajinder Prasad (supra) 2002 Cri LJ 90. While dealing a case having offence exclusively triable by Sessions Court, in para 11 of this judgment the following observation has been recorded -

(2) A Magistrate has jurisdiction to take cognizance of offences against such person also who have not been arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Section 209 refers back to Section 190, as is evident from the words 'instituted on a police report' used in Section 190(l)(b) of the Code. The cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well.

After considering the various pronouncement of the Apex Court another Bench of this Court in the case of Rukvendra Singh (supra) 2004 Cri LJ 1489 has also taken the same.

11. The case of Raj Kishore Prasad (supra) 1996 Cri LJ 2523 the Hon'ble Apex Court was considering the scope of Sections 209 and 319 of the Code. Nowhere in the judgment the provisions of Section 190 of the Code has been considered. Similar situation appears in the case of Kishori Singh (supra). Although in para 6 of the learned Counsel for the State had sought support of his contention, while highlighting of Section 190 of Code, yet in para 8 of the judgment while following observation of the Apex Court in the case of Raj Kishore Prasad (supra) 1996 Cri LJ 2523 and one more judgment in the case of Ranjit Singh v. State of Punjab (1998) SCC Criminal 1554 : 1998 Cri LJ 4618, the similar observation has been given as in the case of Raj Kishore Prasad. But vide order dated 1-12-04 delivered in the case of Dharam Pal (supra) while disagreeing with the observation of the Court in the case of Ranjit Singh (supra) the same has been referred for a larger Bench by a three Judges of the Court. In view of this, as it has been mentioned hereinabove in the case of Raj Kishore Prasad, there is no observation by the Hon'ble Apex Court on Section 190 of the Code and the another case which has been followed in the case of Kishori Singh 2001 Cri LJ 123 (SC) that is the case of Ranjit Singh has been referred to the larger Bench. Vide aforementioned order dated 1-12-04, the Hon'ble Apex Court has referred the observation of the Court in the ease of Ranjit Singh's case to a larger Bench, however it is also observed in last lines of para 2 that -- 'it, however, appears that in a case triable by the Court of Sessions, in law, a Magistrate would have no power to summon for trail an accused mentioned in column 2 to be tried with other accused and, to that extent, the impugned order of the High Court may have to be set aside, but immediately the question involved herein would arise when the matter would be placed before the Sessions Court. This observation is also not based on the powers of a Magistrate under Section 190 of the Code. Because while concluding the order in para 3 in the case of Dharam Pal (supra) the Hon'ble Court vide following sentences, has referred the decision in the case of Ranjit Singh to a larger Bench --

3. Prima facie, we do not think that the interpretation reached in Ranjit Singh case is correct. In our view, the law was correctly enunciated in Kishun Singh case. Since the decision in Ranjit Singh case is of three judge Bench, we direct that the matter may be placed before the Hon'ble the Chief Justice for placing the same before a larger Bench.

12. Thus the facts being different and also not being an observation on Section 190 of the Code, the ratio of aforementioned three judgments in Raj Kishore Prasad, Dharam Pal and Kishori Singh 1996 Cri LJ 2523 does not help the contention of Shri Dwivedi, the learned counsel for the petitioners. In view of the aforementioned judgments in the case of Raghubans Dubey and Rajinder Prasad 1967 Cri LJ 1081, the judgment in the case of Dillip Reddy (2005 Cri LJ 4477) (Ori)) passed by a Bench of Orissa High Court, no longer deserves to be considered.

13. Consequently, following the observation in the case of Raghubans and Rajinder Prasad (supra), the petition being devoid of merits, deserves to be dismissed. Hence, it is dismissed.