In Re: Ponnu Kudumban and ors. - Court Judgment

Excerpt:
- ordersomasundaram, j.1. this is a petition to quash the committal of the 69 accused by the special assistant first class magistrate, tirunelveli. 97 persons were charge-sheeted for offences under sections 120-b, 121-a, 153, 117, 148, 149, 201, 324, 326, 364, 302, 307, 395, 457 and 380, i.p.c.; and also for offences under sections 3 to 6, indian explosive substances act, section 126, indian railways act, section 25 (c), indian telegraph act and section 19(f), indian arms act.of the persons charge-sheeted, ten were absconding and the enquiry therefore went on against the rest, the case against the absconders being separated. of the 87, the learned magistrate discharged 18 and committed the petitioners herein. they have been committed to take their trial, in the sessions-for offences under.....

Judgment:
ORDER

Somasundaram, J.

1. This is a petition to quash the committal of the 69 accused by the Special Assistant First Class Magistrate, Tirunelveli. 97 persons were charge-sheeted for offences under Sections 120-B, 121-A, 153, 117, 148, 149, 201, 324, 326, 364, 302, 307, 395, 457 and 380, I.P.C.; and also for offences under Sections 3 to 6, Indian Explosive Substances Act, Section 126, Indian Railways Act, Section 25 (c), Indian Telegraph Act and Section 19(f), Indian Arms Act.

Of the persons charge-sheeted, ten were absconding and the enquiry therefore went on against the rest, the case against the absconders being separated. Of the 87, the learned Magistrate discharged 18 and committed the petitioners herein. They have been committed to take their trial, in the sessions-for offences under Sections 120-B, 121-A, 147, 148, 149, 302, 307, 324, 326, 380, 397, 457, I.P.C. and Sections 3 and 4, Indian Explosive Substances Act, Section 126, Indian Railways Act and Section 19(f), Indian Arms Act.

2. The main point that is taken to quash the committal is that the offences under Sections 120-B and 121-A, I.P.C. were taken cognizance of even prior to the filing of the complaint under the orders of the local government. What happened in this case was this: the preliminary charge-sheet was filed before the District Magistrate on. 5-8-1950. Sanction to prosecute these accused for offences under Sections 120-B, 121-A and 153-A was asked for and it was granted only in respect of offences under Sections 120-B and 121-A, I.P.C. on 3-1-1951.

Thereupon, a complaint with the sanction order enclosed was preferred on 31-3-1951 along with the final charge sheet in the case. The District Magistrate then transferred the case in the first week of April to the Special Additional 1st Class Magistrate who has committed these accused. The above facts show that even at the time when the present Magistrate who has committed these petitioners, took cognizance of the offence the sanction had already been obtained and a complaint had also been filed in compliance with the provisions of Section 196, Cr. P.C.

But it is contended that at the time when the preliminary charge-sheet was filed before the District Magistrate, which was also for offences under Sections 120-B, 121-A and 153-A, I.P.C. the District Magistrate took cognizance of them without a complaint and sanction, contrary to the provisions of Section 196, Cr, P.C. The complaint and sanction were subsequent to taking cognizance and it is not in compliance with the mandatory provisions of Section 196 and so the whole proceedings including the transfer to' the present Magistrate and the committal are illegal. It is on this point of law that the whole committal is sought to be quashed.

3. That in respect of offences under Sections 120-B, 121-A a complaint by the order of or under the-authority of the State Government is pre-requisite-to the court taking cognizance of them is clear from the mandatory provisions of Section 196, Cr. P.O. A Bench of our High Court has held in 'Varadarajulu Naidu v. Emperor' AIR 1920 Mad 928(A) that the sanction given after the filing of the complaint does not fulfil the requirements of Section 196, Cr. P.C.

The learned Judges followed a decision of the Calcutta High Court in--'Barindrakumar Ghose v. Emperor', 37 Cal 467 (B), where it was held that the defect of not filing the sanction along with the complaint was not cured by subsequently obtaining the sanction and filing it, when the case was before the Sessions court. This contention is conceded by tile prosecution. The only question, therefore, is whether the District Magistrate took cognizance-of these offences prior to sanction and complaint and if so. whether the present proceedings before-the Special Additional 1st Class Magistrate, Tirunelveli, are void.

4. The word 'cognisance' has nowhere been defined in the Criminal Procedure Code. 'It is a word of some indefinite import; it is perhaps not always used in exactly the same sense'.

Vide -- 'Gopal Marwari v. Emperor' : AIR1943Pat245 (C).' According to this decision the word 'cognisance' is used in the Code to

indicate a point when a Magistrate or a judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate.

The fact that a Magistrate has taken cognisance does not necessarily mean that there will be judicial proceedings against any one. This decision is referred to by their Lordships of the Supreme Court in--'Charl v. State of Uttar Pradesh : 1951CriLJ775 . They refer to the following observations of Das Gupta J. in--'Supdt. and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar : AIR1950Cal437 :

What is taking cognisance has not been defined in the Code of Criminal Procedure 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 cognisance of any offence under Section 190(1)(a), Cr. 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 cognisance of the offence,

and observe that in their opinion, that is the correct approach to the question before the court. It is clear, therefore, that it is only when the [Magistrate applies his mind for the purpose of proceeding in a particular way, that is proceeding under Section 200 and thereafter sending the case for inquiry and report under the subsequent sections, he can be said to take cognisance of the offence.

Applying these observations to the present case the Magistrate who could be said to have taken cognizance for the purpose of proceeding under Section 200 and thereafter is the First Class Magistrate to whom the case was transferred, and before he took cognisance, there was undoubtedly a complaint filed in terms of Section 196, Cr.P.C. with the order of sanction. The sanction in respect of the offence under Section 153-A, I.P.C. has not been obtained and the Special First Class Magistrate has not committed the accused for that offence. There is, therefore, a compliance with the provisions of Section 196, Cr P.C. when the committing Magistrate commenced his enquiry.

5. It is contended that the District Magistrater himself could not have transferred the case without taking cognisance as under Section 192, Cr. P.C. he can transfer a case of which he has taken cognisance and not any other case; therefore, it is suggested that even before the transfer of the case he has taken cognisance of these offences. The question is whether the District Magistrate can be said to have taken cognisance of the offences. As already stated what is called a preliminary charge sheet was filed before the District Magistrate.

Although according to the decision of Burn and Wadsworth JJ. in--'Wadood Sahib v. Emperor' 1935 M. .W.N 183 (P), such a preliminary charge sheet can be filed as it is in accordance with long-standing practice in the presidency, still the question is whether the District Magistrate could be said to have taken cognizance of the offences, mentioned therein. The Code of Criminal Procedure does nowhere use the expression charge-sheet but refers only to the police report which under Section 173, Cr. P.C. should be filed as soon as investigation is completed which shall be without delay; and a form has been prescribed for it.

This is what is called a charge sheet in this State though we find from decisions of other courts that different names for this report are used. There can, therefore, be only one charge sheet in the real sense of the term which is the culmination of the police investigation and after which there can be no investigation by the police. But under Section 157, Cr. P.C. a police officer has to send a report if from information received or otherwise, he has reason to suspect the commission of an offence which he is empowered to investigate.

On receipt of this report the Magistrate who is empowered under Section 190, Cr. P.C. may order investigation by the police. This is authorised by the provisions of Clause (3) in Section 156, Cr. P.C. Under Section 159 the Magistrate on receiving such a report may direct an investigation or if necessary may himself at once proceed or depute a Magistrate subordinate to him to proceed.

Under Section 167, Cr. P.C. if the police officer finds that the investigation cannot be completed within the period of 24 hours and if the detention of the accused in their custody is necessary for further investigation, he has to transmit to the nearest Magistrate a copy of the entries in the diary prescribed by the Code and forward the accused to that Magistrate.

The Magistrate to whom the accused is forwarded may or may not have jurisdiction to try the case. But he is empowered under Clause (2) of Section 167, Cr. P.C. to authorise the detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. If he has no jurisdiction to try the case or commit for trial, he may if further detention is considered unnecessary forward the accused to a Magistrate having jurisdiction.

Then by virtue of the explanation to Section 344, Cr.P.C. if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by remand, then he can adjourn or postpone the commencement of the enquiry till such time as he thinks necessary and may by warrant remand the accused to custody.

In short, the police if they could not complete the investigation within 15 days can get the case transferred from a Magistrate who has no jurisdiction and from whom they have obtained an order for remand to a Magistrate who has got Jurisdiction and get the case postponed from time to time for the purpose of collecting evidence.

6. A combined reading, therefore, of Sections 157 159, 167 and 344, Cr. P.C. shows that after sending a report to the Magistrate who has got jurisdiction the investigation can still go on till they file the report under Section 173, Cr.P.C. which, as already stated, is called a charge-sheet. The other reports that they file do not fall within the scope of Section 173, Cr.P.C, and they are in the nature of reports contemplated under Section 157 and police entries under Section 167.

Till the filing of the report under Section 173, Cr. P.C. the court may adjourn the case from time to time and remand the accused to raise a suspicion and it appears likely that further evidence may be obtained. It may be that after further evidence is obtained it may turn out to be that no offence has been committed, in which case the Magistrate to whom the previous report was sent could not be said to have taken cognisance of the offence.

It is only when the final report as contemplated under Section 173, Cr. P.C. that is when a charge sheet is filed, it will be clear whether an offence has been committed or not, because by that time the investigation is completed and the entire material is disclosed by the particulars being mentioned in the charge sheet. Till then, in my opinion, the Magistrate does not take cognizance.

The observations of their Lordships of the Supreme Court in : 1951CriLJ775 (D), support this view as it is only after the final charge sheet is filed, the Magistrate applies his mind for the purpose of proceeding under Section 200 et. seq. In this case, therefore, on the date when the preliminary charge sheet was filed, in my view, the District Magistrate has not taken cognisance of the offence. The cognisance was really taken only after the final charge sheet was filed.

As already stated, a complaint along with the final charge sheet and sanction order were filed before the transfer was made to the present Magistrate, so that the District Magistrate took cognizance of the offence only on 31-3-1951 and the case was transferred to the present Magistrate who took cognizance of it and at the time when the committing Magistrate took cognisance there was undoubtedly the complaint and the sanction before him as per the provisions of Section 196, Cr.P.C. The committal cannot, therefore, be quashed on the ground of want of sanction as required by the provisions of Section 196, Cr. P.C.

7. Mr. Mohan Kumaramangalam appearing for the petitioner urged that in respect of some of the accused, i.e., accused 6, 11, 13, 14, 21, 33, 36, 39, 64, 46 to 53 (except accused 49 and 50), 64, 68, 69, 78 and 81, the corroboration of the approver's evidence is of such a nature that it is not sufficient corroboration in law. That is a question purely for the Sessions Judge to decide. The committal cannot be quashed on that ground.

What is sufficient and what is not sufficient corroboration are entirely for the Sessions Judge to decide. I cannot quash the commitment of these persons on the ground of insufficiency of corroboration.

8. Next, a special plea was made on behalf of accused 70 and 71 who are said to be students aged about 19 & 20. Their only act seems to be some distribution of pamphlets in which some attack was made on the charging of certain tuition fee and certain other matters connected with the college. I do not think that the facts disclose that these students were in the conspiracy with the other accused,

9. The committal of accused 70 and 71 is quashed but as regards the others the petition is dismissed.