Daulat Ram Vs. Rajinder Motwani - Court Judgment

Usha Mehra, J.

(1) This revision petition has been filed by one Shri Daulat Ram assailing the order passed by the Additional Sessions Judge dated 18th February, 1991 thereby discharging the accused Rajinder Motwani and dismissing the complaint of the petitioner under Section 211/500 Indian Penal Code .

(2) In brief, the facts of this case are that the petitioner is a landlord/owner of property bearing No. 3493, Gali Lallu Nissar, Qutub Road, Sadar Bazar, Delhi, and one Shri Sajjan Dass of Narain Market, was a tenant under him in respect of one room used as a godown on a monthly rent of Rs. 25.00 . The said Sajjan Dass vacated the said godown in the first week of April, 1986. The respondent and his father in order to blackmail the petitioners, started claiming the tenancy in the name of their firm M/s. Popular Stores. This they claimed because once upon a time Sajjan Dass was a partner in the said concern. Since the petitioner refused to recognise them as a tenant, the respondent and his father filed a civil suit on which a local commissioner was appointed to ascertain the possession of the party in the suit premises. The local commissioner found that the respondent was not in possession of the alleged godown. Having failed in their object, the respondent tried to dispossess the petitioner through illegal help and backing of the police and also tried to implicate falsely the petitioner in criminal cases.

(3) The police officers visited the petitioner on 25/26th October, 1986 and informed him that there is a police report lodged against him for dispossessing the respondent and theft of articles and that he should report to the police station. The petitioner apprehending the arrest filed a complaint under Section 211/500-I.P.C, on 28th October, 1986. The bail was granted on 4th November, 1986. The police official while contesting the bail application brought on record the report filed by the on the day when he applied his mind and passed the order of summoning. thereforee, the complaint which was filed by the petitioner dated 28t October, 1986 is hit by the Provisions of 195(l)(b), Criminal Procedure Code . Besides filing this complaint, he also applied for anticipatory bail which was granted to him on 4th November, 1986. Anticipatory bail was sought on 31.10.1986 because of the complaint filed by the respondent against the petitioner regarding the theft. This amounted to institution of proceedings. In view of the pendency of the proceeding, the Magistrate could not have taken cognizance on a private complaint on 4th February, 1987 nor could have issued the summons to the respondent. The allegation contained in the complaint filed by the petitioner, in fact arose out of the complaint filed by the respondent. Hence, it was the Court alone which could have taken action, but would not have entertained a private complaint. Taking cognizance on a private complaint in such like circumstances amounts to misuse of the power by the Magistrate. Since the Magistrate exceeded his jurisdiction hence the Additional Sessions Judge was justified in quashing the order. Since the complaint itself was not maintainable, hence the revision is also not maintainable.

(4) On the other hand, Mr. G.D. Gandhi appearing for the petitioner contended that Magistrate took cognizance on the day the petitioner filed the complaint i.e. 28th October, 1986 when the complaint was taken on record, it amounted to taking of the cognizance. Hence on 28th October, 1986, when the Magistrate took the cognizance no proceedings were pending. The F.I.R. is based on respondent's complaint made on 22nd November, 1986. His complaint dated 23rd October, 1986 had been concealed by the police throughout. thereforee, when he filed the complaint and Magistrate took cognizance on 28.10.1986, no proceedings were pending.

(5) The short and interesting point which has emerged from the contention raised by the parties is as to when the Magistrate took cognizance. Because if the cognizance is taken on 4th February, 1987 then the counsel for the petitioner rightly conceded that the complaint of the petitioner was not maintainable. But if the cognizance took place on 28th October, 1986, then the petition is maintainable. Hence it has become necessary to understand what is cognizance and when it was taken. The word 'taking cognizance' came up for interpretation before the Supreme Court in the case of A.R. Antulay Vs . Ramdas Sriniwas Nayak and another : 1984CriLJ647 where the Supreme Court defined cognizance. Cognizance has been defined as under:

'WHEN a private complaint is filed, the Court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Criminal Procedure Code . after examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process. When it is said that court issued process, it means the court has taken cognizance of the offence and has decided to initiate manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the court.'

(6) In the present case, the complaint was filed on 28th October, 1986. It was taken up by the Magistrate on 29th October, 1986 when he passed the following order:

29.10.1986'Complaint received by transfer. Complainant Daulat Ram is present with counsel. Now to come up for statement of the complainant on 15th December, 1986.'

(7) This order by no stretch of imagination can amount to applying the mind by the Magistrate. This at best is a ministerial act after the transfer of the complaint. In order to take cognizance the Magistrate has to apply his mind. He has to come to a definite conclusion as to whether a prima facie case is made out, and thereforee, issue summons. This in the present case was done by the Magistrate on 4th February,1987 as is apparent from the order reproduced above. Unless the Magistrate prima facie comes to the conclusion that a case is made out and issue summons or notice, it cannot constitute taking of cognizance by the Magistrate. thereforee, Mr. Gandhi's contention that on 28th October, 1986 when he filed the complaint, Magistrate took the cognizance, is without force. It is only when the process is issued that cognizance is taken. It this regard I am also supported by catena of judgments of the Supreme Court and High Court, reference can be had to the following authorities:

1.Gopal Dass Sindhi and others v. State A.I.R. 1961 SC 986.

2.Kamlapati Trivedi Vs . State of West Bengal : 1979CriLJ679 .

3.State of Punjab Vs . Brij Lal Palta : 1969CriLJ645 .

4. Allbert Accused No.1 v. State of Kerala and another A.I.R.1966 Ker 11.

5.Rejeshwar Prasad Misra v. The State of West Bengal A.I.R. 1965 SC 1987.

6.Baijnath Vs . State of Madhya Pradesh : 1966CriLJ179 .

7.State of Himachal Pradesh v. Krishan Lal Pardhan and others 1987 Crl. L.J. 709.

8.State of West Bengal Vs . Bejoy Kumar Bose : 1978CriLJ138 .

(8) Mr. Gandhi, counsel for the petitioner, on the other hand, placed reliance on the observations made by the Supreme Court in the case of R.R. Chari Vs . The State of Uttar Pradesh : 1951CriLJ775 and in the case of M.L. Sethi Vs . R.P.Kapur : 1967CriLJ528 . I am afraid that the observations made in these cases are of no help to the petitioner. Rather it helps the contention of Mr. Shiv Dayal, counsel for the petitioner because in R.R. Chari's case, the Supreme Court opined that the observations made. by Das Gupta, J. in Supdt. & Remembrancer of Legal Affairs, W.B. V. Abani Kumar, : AIR1950Cal437 is a correct approach to the question as to what is 'taking cognizance'. Das Gupta, J. in the said case attempted to define the word 'Cognizance' in the following words which have been approved by the Supreme Court in R.R.Chari's

'WHAT is taking cognizance has not been defined in the Crl. P.C. and I have no desire to attempt to define it. It seems to me clear however that before it can be said that .any Magistrate has taken cognizance of any offence under Section 190(1)(a) Crl. P.C. he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this chapter proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this chapter but for taking action of some other kind e.g. ordering investigation....under Section 156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence'.

(9) I do not find much merit in the submission of Mr. Gandhi that Magistrate take cognizance even when he passed a ministerial order of registering the case and this I am saying because of the latest pronouncement of the Supreme Court in the case of Krishna Pillai v. T.A. Rajendran and another . The Supreme Court in the case of M.L. Sethi v. R.P. Kapur, referred to above has gone to the extent of saying that if the proceedings are pending then no private complaint would lie. In the present case admittedly, the day the Magistrate took the cognizance e.g. on 4th February, 1987, the proceedings were pending by way of petitioner's applying for anticipatory bail and the Court having granted the anticipatory bail prior to 4th February, 1987. thereforee, I am of the prima-facie vie.' that the complaint filed by the petitioner under Section 211 Indian Penal Code is hit by the provision of Section 195(1)b) of the Criminal Procedure Code . Since the complaint of the petitioner is barred hence the revision arising out of the same is also not maintainable.

(10) With these observations, the petition stands disposed of.