Gulam HussaIn Vs. Amina Bano and ors. - Court Judgment

Excerpt:
(a) criminal procedure code, 1973 - section 190--word 'may'--interpretation--word 'may' appearing in section 190 does not mean 'must'--hence the expression 'may take cognizance on a complaint' in section 190 does not mean that once a complaint is filed the magistrate is hound to take cognizance.;(b) criminal procedure code, 1973 - section 190--word 'cognizance'--meaning--word 'cognizance' means to apply the mind in respect of the facts constituting the offence.;(c) criminal procedure code, 1973 - sections 193 & 209--question whether after filing of challan and commitment of case to court of session, magistrate is competent to add some additional accused in the cases exclusively triable by court of session--held, no.; criminal misc. petition dismissed in limine - - to summon a new offender was not vested with a magistrate on the plain reading of its text as well as proceedings before him not being an 'inquiry' and material before him not being 'evidence'.15. in the present case also, when the case was already committed to the court of session and one accused, namely, aamina bano (accused respondent no. this ruling clearly justifies the order of the learned addl. thus, i am clearly of the view that when the magistrate, after taking cognizance of the case of police report summons the charge-sheeted accused and subsequently, he found on consideration of material on record that a prima facie case is also established against other accused persons, he can issue summons against those accused persons not arraigned as accused in the charge sheet filed by he police and this power can be exercised at any time, but before framing of the charges against the accused persons against whom challan was filed by the police and cognizance was taken by the magistrate. ' 24. from perusing the above order of the hon'ble supreme court, it clearly appears that the learned counsel appearing on behalf of the petitioner before the hon'ble supreme court stated that his client would be advised to approach the high court for issuing appropriate directions to the magistrate in regard to the complaint filed by the petitioner before the court of magistrate.garg, j. 1. this criminal misc. petition under section 482 cr.p.c. has been filed by the petitioner-complainant against the order dated 8.11.2001 passed by the learned judicial magistrate, first class, taranagar (churu) by which he dismissed the complaint filed by the petitioner-complainant against the respondents no. 1 to 8. 2. it arises in the following circumstances:- the petitioner-complainant filed a complaint on 31.10.2001 in the court of judicial magistrate, taranagar (churu) against the accused respondents no. 1 to 8 for the offence under sections 120-b, 302/109, 203 1pc stating inter-alia that on 15.8.1998, the accused respondents gave milk added with poison to his daughter balkesh thereinafter referred to as the deceased) with an intention to kill her, but since deceased had suspicion, therefore, she did not accept that milk and this incident took place at taranagar, a place of in-laws of deceased. however, the deceased was compelled to take milk added with poison and after about 8.15 a.m. on 15.8.1998, the condition of the deceased became deteriorated and, thereafter she was admitted in the hospital at taranagar and later on, she was shifted to churu hospital, where she died. it was further stated in the complaint that on 15.8.1998, the accused respondents lodged a report in the police station kotwali, churu stating that deceased died because of some ailment. on that report, murg fir under section 174 cr.p.c. was registered at police station kotwali, churu and during investigation, the learned s.d.m., churu found that the milk added with poison was given to the deceased by her jethani aamina bano (accused respondent no. 1) and through letter dated 22.6.2000, the learned sdm, churu made a request the s.p., churu that fir be registered against amina bano (accused respondent no. 1) and, thereafter, fir no. 128 was registered at police station, taranagar (churu) on 1.8.2000 for the offence under section 498a, 302 ipc. the police later on converted the case from 302 to 306 ipc and 498a ipc and thus, a challan was filed against the accused respondent no. 1 aamina bano for the offence under sections 306 and 498a ipc in the court of judicial magistrate, taranagar and from where the case was committed to the court of addl. sessions judge, rajgarh (churu) where sessions no.25/2001 was registered and that sessions case was fixed on 13.7.2001 for arguments on charge. it was further stated in the complaint that on 13.7.2001, the petitioner-complainant filed an application purporting to be under section 173(8) cr.p.c. accompanied by several documents with the prayer that further investigation in that case be got conducted through c1d (cb)/cbi and that application was rejected by the learned addl. sessions judge, rajgarh (churu) through order dated 2.8.2001. against the said order of the learned addl. sessions judge, rajgarh (churu) dated 2.8.2001, the petitioner- complainant filed a revision before this court, which was registered as s.b. cr.revision petition no.430/2001 and this court vide judgment dated 21.8.2001 dismissed summarily that revision petition holding inter-alia that during trial, if evidence comes, action can be taken under section 319 cr.p.c. against the judgment of this court dated 21.8.2001, the petitioner-complainant filed slp before the hon'ble supreme court, which was registered as slp (cri.) no.3617/2001 and the hon'ble supreme court court vide order dated 8.10.2001 dismissed that slp as withdrawn. narrating alt the above facts, the petitioner-complainant prayed in the complaint the cognizance be taken against the accused respondents including aamina bano against whom challan for the offence under section 306 and 498-a ipc had already been filed, for the offence under section 120-b, 302/149, 203 ipc. the learned judicial magistrate, first class, taranagar (churu) through order dated 8.11.2001 dismissed that complaint of the petitioner-complainant, after giving the following reasons:- (1) that it is an admitted position of the case that for the death of the deceased, a challan for the offence under sections 498a and 306 ipc had already been filed against the accused respondent no. 1 aamina bano and after the challan was filed, the case was committed to the court of session and the case is pending with the court of addl. sessions judge, rajgarh and since the addl.sessions judge, rajgarh had already rejected the prayers of the petitioner-complainant for further investigation and for adding other accused persons, therefore, it was not within his competence or jurisdiction to further proceed in the matter and make investigation and add some other accused persons. (2) that this court through judgment dated 21.8.2001 upheld the order of the learned addl. sessions judge, rajgarh dated 2.8.2001 rejecting the prayers of the petitioner-complainant for further investigation and for adding other accused persons and since this court ordered that action could only be taken under the provisions of sec. 319 cr.p.c., therefore, nothing could be done by him at that stage. (3) that after filing of challan and commitment of case to the court of session, it was not within his competence and power to add some additional accused in the cases exclusively triable by the court of session and for that, he placed reliance on the decision of the hon'ble supreme court in raj kishore prasad v. state of bihar and anr. (1). aggrieved from the said order dated 8.11.2001 passed by the learned judicial magistrate, 1st class, taranagar (churu), this misc. petition under section 482 cr.p.c. has been filed by the petitioner-complainant. 3. in this petition, the following submissions have been raised by the learned counsel appearing for the petitioner-complainant:-(1) that once the complaint is filed before the magistrate, he is duty bound to record the statements of the complainant and his witnesses under sections 200, 202 cr.p.c. and since in the present case, the complaint was dismissed by the learned judicial magistrate without recording the statements of the complainant and his witnesses under sections 200, 202 cr.p.c., therefore, that order is illegal and without jurisdiction and it should be set aside. (2) that the magistrate does not become functus officio after committing the case under section 209 cr.p.c. to the court of session and the complaint can be entertained by him even after filing of challan and commitment of case to the court of session, as complaint case is a separate case by itself having its independent identity from the police case. in other words, there is no bar in the code of criminal procedure to take cognizance of the offence on a private complaint even if a charge sheet is filed by the police and the offence was taken cognizance of and for that, he placed reliance on the decision of andhra pradesh high court in gude lakshmi basava poornima v. state of andhra pradesh (2), where it was held that filing a charge-sheet against accused by police for an offence is not a bar for court to take cognizance of same offence on a private complaint. hence, it was prayed that this misc. petition under section 482 cr.p.c. be allowed and the impugned order of the learned judicial magistrate, first class, taranagar (churu) dated 8.11.2001 be set aside and the learned judicial magistrate be directed to proceed with the complaint filed by the petitioner- complainant. 4. i have heard the learned counsel appearing for the petitioner at the admission stage and perused the materiel available on record. point no. 1 5. sub-section (1) of section 190 cr.p.c. reads as under:- '190. cognizance of offence 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 offeree.- (a) ..... (b) ..... (c) ..... (2) .....' 6. the expression may take cognizance on a complaint', in my considered opinion, does not mean that once a complaint is filed the magistrate is bound to take cognizance. in this connection, the word 'may' appearing in section 190 cr.p.c. does not mean 'must', a complaint disclosing cognizable offence may justify a magistrate in sending complaint to a police officer for investigation under section 156(3) cr.p.c. on the other hand, there may be occasions when a magistrate may exercise his jurisdiction and take cognizance. at the time when the magistrate is taking cognizance under section 190 cr.p.c., he must examine the facts of the complaint before him and determine whether his power of taking cognizance has or has not been taken away under any other act. 7. the expression 'taking cognizance' is not defined in the code, but from the scheme of the code, the content and heading of sec. 190 and the caption of chapter xiv under which sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. clauses (a), (b) & (c) lay down the ways in which such cognizance can be taken. whether the magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the magistrate. when no receiving a complaint, the magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding section in chapter xv of the code, he is said to have taken cognizance of the offence. if he has in the judicial exercise of his discretion, taken action on some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence. if the magistrate applies his mind not for the purpose of proceeding under chapter xvi but for taking action of some other kind, there is no cognizance of the offence. the word 'cognizance' means to apply the mind in respect of the facts constituting the offence. 8. in gopal das sindhi v. state of assam (3), the apex court has held that the provisions of section 190 cr.p.c. do not mean that once a complaint is filed, a magistrate is bound to take cognizance, if the facts stated in the complaint disclose the commission of any offence. on the presentation of the complaint, the magistrate is not bound to take cognizance. 9. in my opinion, the use of the word 'may take cognizance' in section 190 cr.p.c. imports the exercise of judicial discretion and the magistrate who receives the report under section 173 will have to consider the said report and judicially take a decision whether or not to take the cognizance of the offence. 10. thus, it can be concluded:- (1) that the magistrate is not bound to take cognizance in all cases of complaint or police report. (2) that the word 'may' appearing in section 190 cr.p.c. cannot be construed to mean 'must'. 11. the opening words of section 200 cr.p.c. commence with the words that the magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present and in my considered opinion, these words are only applicable in the cases where the magistrate has taken cognizance after applying the judicial mind. in other words, if the magistrate does not forward the complaint under section 156(3) cr.p.c. to the police for further investigation and on consideration of the facts disclosed in the complaint, he comes to the conclusion that it is a fit case where he should take cognizance, then in such a situation, he is required to record statements of the complainant and his witnesses. however, if the magistrate, on consideration of the facts disclosed in the complaint, comes to the conclusion that it is not a fit case for proceeding further with the complaint, then in such a situation he is not required to record the statements of the complainant and his witnesses and he can dismiss the complaint without recording the statements of the complainant and his witnesses. 12. in the present case, the learned judicial magistrate, on consideration of the facts disclosed in the complaint, came to the conclusion that it was not a fit case to proceed further with the complaint meaning thereby he did not take cognizance and in such a situation, if he dismissed the complaint without recording the statements of the complainant and his witnesses under sections 200, 202 cr.p.c., he has committed no illegality or irregularity in doing so. had he would have taken cognizance on the complaint, in such a situation, he was bound to record the statements of the complaint and his witnesses under sections 200, 202 cr.p.c., but that stage had not taken place in the present case. 13. thus, the argument no. 1 that the learned judicial magistrate was duty bound to record the statements of the complainant and his witnesses under sections 200, 202 cr.p.c. stands rejected.point no.2 14. the learned judicial magistrate has come to the conclusion that he had no power to add other accused persons after committing the case to the court of session in cases exclusively triable by the court of sessions and for that he has placed reliance on the decision of the hon'ble supreme court in the case of raj kishore prasad (supra) and in that case, the hon'ble supreme court framed the following question for determination:- 'can a magistrate undertaking commitment under section 209 cr.p.c. of case triable by a court of session, associate another person as accused, in exercise of power under section 319 of the code of criminal procedure, or under any other provision.' the hon'ble supreme court answered the above question in the following manner:- 'we come to hold that the power under section 209 cr.p.c. to summon a new offender was not vested with a magistrate on the plain reading of its text as well as proceedings before him not being an 'inquiry' and material before him not being 'evidence'.' 15. in the present case also, when the case was already committed to the court of session and one accused, namely, aamina bano (accused respondent no. 1) was facing trial for the offence under sections 306, 498-a ipc and when the learned addl. sessions judge has further rejected the prayer to add some other accused persons till the stage under section 319 cr.p.c. is reached and that view was affirmed by this court and slp was dismissed by the hon'ble supreme court as withdrawn and in such circumstances, the findings of the learned judicial magistrate that he had no power to proceed further on the said complaint to add other accused persons in that case exclusively triable by the court of session do not suffer from any basic illegality and irregularity and the same are liablt, to be confirmed one. 16. it may be stated here that the hon'ble supreme court in ranjit singh vs. state of punjab (4) has held that sessions court had no power to summon additional accused under section 193 cr.p.c. and that power can only be exercised by the sessions court under section 319 cr.p.c. meaning thereby some evidence in sessions case should have been recorded. this ruling clearly justifies the order of the learned addl. sessions judge by which the prayer of the complainant-petitioner to add some accused persons was rejected till the stage under section 319 cr.p.c. is reached. 17. thus, from every point of view, since one of the accused persons, namely, aamina bano (accused respondent no. 1) was facing trial before the learned addl. sessions judge, adding of some other accused persons can only be done under section 319 cr.p.c. and not otherwise and that stage has not reached in the present case. 18. it may further be stated here that a distinction has to be drawn between the cases triable by the magistrate or exclusively triable by the sessions court. the magistrate has power to add some other accused against who challan has not been filed by the police. thus, i am clearly of the view that when the magistrate, after taking cognizance of the case of police report summons the charge-sheeted accused and subsequently, he found on consideration of material on record that a prima facie case is also established against other accused persons, he can issue summons against those accused persons not arraigned as accused in the charge sheet filed by he police and this power can be exercised at any time, but before framing of the charges against the accused persons against whom challan was filed by the police and cognizance was taken by the magistrate. but, that power is not available to the magistrate in the cases exclusively triable by the court of session and in such cases, the magistrate had no power to add some other accused persons against whom challan has not been filed by the police. therefore, that distinction has to be kept in mind before dealing with such matter and no confusion should be left.19. since present case was exclusively triable by the court of session, therefore, the magistrate had no power to add some other accused persons against whom challan was not filed by the police and thus, the findings of the learned judicial magistrate that he had no power to add some other accused persons are liable to be confirmed one. 20. in ibrahim khan v. state of rajasthan and anr. (5), this court has held that after taking cognizance and committing the case under section 209 cr.p.c., the magistrate had become functus officio. this ruling supports the view of the learned judicial magistrate that after filing of challan and commitment of case to the court of session, adding of some accused persons was not within his competence and power in the cases exclusively triable by the court of session. 21. thus, the argument no.2 also fails and the same is rejected. 22. for the reasons stated above, the learned judicial magistrate has not committed any illegality or irregularity in dismissing the complaint of the petitioner-complainant and there is no reason to believe that the process of law was being misused and thus, it is not a fit case for exercise of power under section 482 cr.p.c. and this misc. petition is liable to be dismissed. 23. before parting with this order, a subsequent order dated 28.1.2002 passed by the hon'ble supreme court in cr.misc.petition no.6/2002 in slp (cr.) no.3617/2001 has to be kept in mind and while dismissing that cr.misc. petition as withdrawn, the hon'ble supreme court passed the following order:- 'learned counsel submits that petitioner would be advised to approach the high court for issuing appropriate directions to the magistrate in regard to the complaint filed by the petitioner before the court of magistrate. in view of he course to be adopted, learned counsel seeks permission to withdraw this crl.misc.petition. crl.misc.petition is accordingly dismissed as withdrawn.' 24. from perusing the above order of the hon'ble supreme court, it clearly appears that the learned counsel appearing on behalf of the petitioner before the hon'ble supreme court stated that his client would be advised to approach the high court for issuing appropriate directions to the magistrate in regard to the complaint filed by the petitioner before the court of magistrate. 25. since, that aspect has been considered by this court, as discussed above, and looking to the entire facts and circumstances of the case, it appears that the complaint of the petitioner was rightly dismissed-by the learned judicial magistrate, therefore, no further directions can be given by this court under section 482 cr.p.c. on the said complaint. hence, the subsequent order of the hon'ble supreme court dated 28.1.2002 (annex.10) would not be helpful to the complainant-petitioner. 26. in the result, this misc.petition filed by the petitioner under section 482 cr.p.c. is dismissed at the admission stage, after confirming the order dated 8.11.2001 passed by the learned judicial magistrate, first class, taranagar (churu).