TMI Blog2007 (9) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... lwant Singh (hereinafter referred to as the Complainant-PW1) alleging as follows: On 8.8.1984 he was sitting at Kali Mata Ka Mandir, Udaseen Ashram at Village Taharpur, Shahdara, Delhi. He acts as a priest in the temple. Donations were collected from various persons to build the temple and he was maintaining the temple. He was residing at the temple and performing regular puja. On 8.8.1984 at about 9.30 p.m., after performing evening puja and aarti and after having dinner he was doing meditation when five persons including two accused persons namely the present appellant and one Ram Saran and three persons who were Sikhs and whose names he did not know but could identify them, entered into the temple, tied him with a rope and ran away with the donation box with cash of about ₹ 5,000/-. Appellant was carrying a knife, Ram Saran was having a lathi and one of the three others who was a Sikh was having a revolver. After some time two local persons namely Kanwar Singh and Dr. Salekh Chand came to the temple and they also saw five persons running towards Gagan Cinema. Both of them identified the appellant and Ram Saran; they untied the rope and cried for help. After hearing thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other hand submitted that mere delay in lodging the complaint does not in any way affect the credibility of PW1's version. 6. The evidence of PW1 is the only material on which the conviction has been recorded. In court his statement was that accused appellant and Ram Saran were holding knives and other Sikh accused were holding lathi. But in the complaint it was stated that Ram Saran was carrying a lathi and one of the accused Sikh was holding a revolver. It was accepted that no injury was inflicted on the complainant by any of the accused. 7. The effect of not adducing material to show that in fact the grievance was made before the police and the FIR was not recorded has been considered by this court in several cases. Section 304 Cr.P.C. mandates that when the accused is not represented, the Court has to appoint a counsel so that the accused does not go undefended. 8. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance has been taken on the police report, he is to try the complaint case along with the G.R. Case as if both the cases are instituted upon police report. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions of Section 210, Cr.P.C, are mandatory in nature. It may be true that non- compliance of the provisions of Section 210, Cr.P.C., is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr. P.C., unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. But even applying the very same principles it is seen that in fact the appellant was in fact prejudiced because of the non- production of the records from the police. Delay in filing the complaint because of police inaction has to be explained by calling for the records from the police was explained by this Court in Khedu Mohton and others v. State of Bihar (AIR 1971 SC 66). Where the Court took exception to the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for investigation under Section 156 of the Cr.P.C. have been elaborated in Chapter XII of the Cr.P.C.. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Cr.P.C. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Cr.P.C. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. 15. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Cr.P.C. A reading of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncharge of Police Station Gauhati for investigation. Section 156(3) states Any Magistrate empowered under section 190 may order such investigation as above-mentioned . Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Cr.P.C. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2). It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI 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 investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal (AIR 1959 SC 1118). It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Cr.P.C.. The action of Mr. Thomas comes within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a that if the Additional District Magistrate did not take cognizance, he certainly did because he considered whether the bail should be reduced and fixed the 26th and 27th of March, for evidence. It was, however, argued that when Mitra applied for a search warrant on September, 16, 1952, the Additional District Magistrate had recorded an order thereon, Permitted. Issue search warrant. It was on this date that the Additional District Magistrate took cognizance of the offence. We cannot agree with this submission because the petition of Inspector Mitra clearly states that As this is non-cognizable offence, I pray that you will kindly permit me to investigate the case under section 155 Cr.P.C. That is to say, that the Additional District Magistrate was not being asked to take cognizance of the offence. He was merely requested to grant permission to the police officer to investigate a non- cognizable offence. The petition requesting the Additional District Magistrate to issue a warrant of arrest and his order directing the issue of such a warrant cannot also be regarded as orders which indicate that the Additional District Magistrate thereby took cognizance of the offence. It was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate would not be required to pass any further orders in the matter. If, on the other hand, after completing the investigation a complaint was filed, as in this case, it would be the duty of the Additional District Magistrate then to enquire whether the complaint had been filed with the requisite authority of the Reserve Bank as required by s. 23(3)(b) of the Foreign Exchange Regulation Act. It is only at this stage that the Additional District Magistrate would be called upon to make up his mind whether he would take cognizance of the offence. If the complaint was filed with the authority of the Reserve Bank, as aforesaid, there would be no legal bar to the Magistrate taking cognizance. On the other hand, if there was no proper authorization to file the complaint as required by s. 23 the Magistrate concerned would be prohibited from taking cognizance. In the present case, as the requisite authority had been granted by the Reserve Bank on January 27, 1953, to file a complaint, the complaint filed on February 2, was one which complied with the provisions of s. 23 of the Foreign Exchange Regulation Act and the Additional District Magistrate could take cognizance of the offence w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bery. 2. While committing robbery or dacoity (i) accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person. 3. Offender refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But other accused are not vicariously liable under that Section for acts of co-accused. 23. As noted by this court in Phool Kumar v. Delhi Administration (AIR 1975 SC 905), the term offender under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between 'uses' as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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