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Darshan Singh Ram Kishan Versus State of Maharashtra

1971 (9) TMI 187 - SUPREME COURT OF INDIA

Criminal Appeal No. 100 of 1969 - Dated:- 2-9-1971 - J. M. Shelat, I. D. Dua And Subimal Chandra Roy, JJ. For the Appellant : C. L. Sareen and J. C. Talwar For the Respondent : P. K. Chatterjee and S. P. Nayar JUDGMENT J. M. Shelat, J. The appellant and one Bakshi Singh Sunder Singh were accused No. 2 and accused No. 1 respectively in the committal proceedings before the Presidency Magistrate, 28th Court, Greater Bombay. This appeal, by special leave, is directed against the judgment of the High .....

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d Kingdom, but had no passport. The appellant agreed to arrange his journey and also for that purpose to obtain a passport for him. The allegation was that the appellant prepared an application for a visa in the name of Bakshi Singh. It was further alleged that with a view to procure the said visa the photograph of the said deceased Jivansingh was removed from the said passport and that of Bakshi Singh substituted. The visa having in this fashion been obtained, Bakshi Singh journeyed to the Unit .....

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earned Magistrate. That charge- sheet is not before us. But counsel for the appellant informed us that Bakshi Singh was therein charged under secs. 419 and 471 read with sec. 468, and the appellant was charged under secs. 419/109, 468 and 471 of the Penal Code. Counsel also. informed us- that the Magistrate did not examine any witnesses, during the committal proceedings but on a perusal of the charge-sheet and the documents filed before him under sec. 173 of the Code of Criminal Procedure he fra .....

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i Singh. In the High Court various contentions were raised on behalf of the appellant in support of his application under sec. 561A of the Code of Criminal Procedure including that under sec. 196A (2). That contention was that no consent as required by sec. 196A(2) having been first obtained, the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy, and therefore, the committal order was without jurisdiction and had to be quashed. In this appeal we are concerned only wi .....

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t and Bakshi Singh to stand their trial before the Sessions Court, was for criminal conspiracy, the object of which was to forge the said passport, a non-cognizable offence. In respect of that offence, sec. 196A(2) would undoubtedly apply. What that section prohibits is taking cognizance of an offence of criminal conspiracy unless consent to the initiation of proceedings against the person charged with it has been first obtained. As provided by sec. 190 of the Code of Criminal Procedure, a Magis .....

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lace at a point when a magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint or on a police report, or upon information of a person other than a police officer. Therefore, when a magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report. It is not in dispute that the charge-sheet submitted by the police officer for the purpose .....

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the charge-sheet to have been committed by either of the two accused persons. True it is that the Magistrate ultimately drew up charges which included the offence under sec. 120B, the object of which was to forge the passport, an offence under sec. 467. The Magistrate also did not consider it necessary to examine any witnesses and frame the charges on a perusal of the charge-sheet submitted to him by the police, the statement of witnesses recorded by the police during their investigation and su .....

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as before the police officer, warranted a charge of criminal conspiracy for forging a passport. It is quite clear, however, that the cognizance which he took was of the offences alleged in the charge-sheet because it was in respect of those offences that the police had applied to him to initiate proceedings against Bakshi Singh and the appellant and not for the offence under sec. 120B. It was at a later stage, i.e., at the time of passing the committal order that he considered that a charge unde .....

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anjan Sarkar [1962] Supp. 2 S.C.R. 297. The question involved there was, whether a second complaint could be entertained by a magistrate who or whose predecessor had on the same or similar allegations dismissed a previous complaint, and if so, in what circumstances should such a complaint be entertained. Arising-. out of this question a contention was raised whether on the complaint, as it was framed, the Magistrate had the jurisdiction to, take cognizance of the offences alleged in the complain .....

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he offences mentioned in the heading or the use of the expression " criminal conspiracy" in para, 5. The proper test should' be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be necessary to the initiation of the proceedings within the meaning of s. 196A(2) of the Code of Criminal Procedure. It is from that point of view that the petition of 'complaint must be examined.&qu .....

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