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Tula Ram & Ors. Versus Kishore Singh

Crl. Appeal No. 6 of 1976 - Dated:- 5-10-1977 - Syed Murtaza Fazalali And P. S. Kailasam, JJ. For the Appellants : D. Mookerjee, S. N. Mehta, A. S. Sohal and Uma Dutta For the Respondent : Harbans Singh JUDGMENT Fazal Ali, J. Whether or not a Magistrate after receiving a complaint and after directing investigation under section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the code) and on receipt of the final report from the police can issue notice to the complainan .....

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nquiry it may also be necessary to consider the legal import and significance of the term "taking cognizance" as used in sections 190, 200 and 202 of the Code. Before however considering the various aspects of the matter it may be necessary to summarise the facts which have led to the enquiry in the appeal before us. A Criminal case was registered by the Police Officer. Police Station, Guru Har Sahai on the basis of F.I.R. filed by Avinash Chandra against Mohd. Sadiq and others for hav .....

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section 156(3) of the Code by his order dated 1.1.1975. The police submitted a final report on 8.3.1975 indicating that no case was made out against the accused. The Court after considering the report on 2nd April, 1975 ordered that notice may be issued to the complainant to appear before him. Consequently, the complainant appeared along with his witnesses before the, Magistrate and his statement was recorded on 22nd May, 1975. On 23rd May, 1975 i.e. the next day the Magistrate issued process ag .....

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istrate had issued process against the accused after taking due cognizance of the case and applying his mind and recording the statement of the complainant. Thereafter the appellants prayed for a certificate for leave to appeal to this Court which was granted. We may mention at the out set that we are not at all concerned with the merits of the case and the learned counsel Mr. D. Mukherjee appearing for the appellants has argued only a pure point of law before us. He has contended that the Magis .....

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usly before taking cognizance and after receiving the report he was not debarred from taking cognizance and proceeding with the complaint filed by Kishore, Singh in accordance with law. The question as to what is meant by taking cognizance is no longer res integra as it has been decided by several decisions of this Court. As far back as 1951 this Court in the case of R. R. Chari v. State of Uttar Pradesh [1951] S.C.R. 312 observed as follows - "Taking cognizance does not involve any formal .....

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cognizance of any offence under section 190(1)(a), Criminal Procedure Code, he must not only have applied Ms mind to the contents of the petition but he must have done so far 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, b .....

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omplaint 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". It seems to us that there is no special charm or any magical formula in the expression "taking cognizance" which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to, taking further action. .....

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lice report of such facts; and (c) upon information received from any person other than the police officer or upon his own knowledge, that an offence has been committed. These are the three grounds on the basis of which a Magistrate can take cognizance and decide to. act accordingly. It would further appear that this Court in the case of Narayandas Bhagwandas Madhavdas v. The State of West Bengal [1960] 1 S.C.R. 93,106 observed the mode in which a Magistrate could take cognizance of an offence a .....

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is now well settled by the decision of this Court in Abhinandan Jha & Ors. Dinesh Mishra [1967] 3 S.C.R. 668 that while a Magistrate can order the police to investigate the complaint it has no power to compel the police to submit a charge-sheet on a final report being submitted by the police. In such cases a Magistrate can either order reinvestigation or dispose of the complaint according to law. Analysing the scheme of the Code on the subject in question it would appear that section 156(3) .....

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her words, the position is that even if a Magistrate receives a complaint under section 190 he can act under section 156(3) provided that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post cognizance stage Chapter 12 so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say once a Magistrate starts acting under section 190 and the provisions following he cannot resort to section 156(3). Mr. Mukherjee vehemently contended bef .....

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tant case the Magistrate has done neither but has chosen to proceed under section 190 (1) (a) and section 200 of the Code and thereafter issued process against the accused under section 204. Attractive though the argument appears to be we are however unable to accept the same. In the first place, the argument is based on a fallacy that when a Magistrate orders investigation under section 156(3) the complaint disappears and goes out of existence. The provisions of section 202 of the present Code .....

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Code to order investigation by the police have not been touched or affected by section 202 because these powers are exercised even before cognizance is taken. In other words, section 202 would apply only to cases where the Magistrate has taken cognizance and chooses to enquire into the, complaint either himself or through any other agency. But there may be circumstances as in the present case where the Magistrate before taking cognizance of the case himself chooses to order a pure and simple in .....

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any order indicating that he bad applied his judicial mind to the facts of the case for the purpose of proceeding with the complaint. What he had done was to keep the complaint aside and order investigation even before deciding to take cognizance on the basis of the complaint. After the final report was received the Magistrate decided to take cognizance of the case on the basis of the complaint and accordingly issued notice to the 'Complainant. Thus, it was on 2nd April, 1975 that the Magist .....

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iable by the Court of Sessions the Magistrate was clearly debarred from ordering any investigation, but he was not debarred from making any enquiry himself into the truth of the complaint. This is what exactly the Magistrate purported to have done in the instant case. The Magistrate issued notice to the complainant to appear before him, recorded the statement of the complainant and his witnesses and after perusing the same he acted under section 204 of the Code by issuing process to the accused .....

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st cognizance action. That fact was recognised by a recent decision of this Court in the case of Devarpalli Lakshminaryana Reddy & Ors. V. V. Narayana Reddy & Ors. [1976] Supp. S.C.R. 524 where the Court observed as follows "The power to order police investigation under section 156(3) is different from the power to direct investigation conferred by section 202(1). The two operates in a distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the se .....

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case of Gopal Das Sindhi and Ors. v. State of Assam & Anr. A.I.R 1961 S.C. 986 this Court while approving the observations of Justice Das Gupta in the case referred to above observed as follows :- "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 .....

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the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence." In these circumstances the inescapable conclusion is that in the present case the Magistrate had not taken cognizance of the case and ordered investigation by the police under section 156(3) before applying his mind to the complaint. This be .....

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im direct the police to file a charge-sheet observes that the Court was not powerless to dispose of the complaint according to law. In this connection, this Court observed as follows : "We are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for, sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear .....

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ed thread-bare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge 1. That a Magistrate can order investigation under section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not en .....

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