TMI Blog2021 (5) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the offence it was necessary to call for the police investigation, it was open for him to do so - The very fact that after perusal of the case record he was persuaded that there is a requirement of examination under Section 200 of Cr.P.C, would establish that he had already taken cognizance of the offence. It is well settled that the stage of examination of witness under Section 200 of Cr.P.C. would not arise before taking cognizance by the Magistrate. Thus, these two twin facts namely, the perusal of the case record by the Magistrate and the decision that he arrived on upon perusal of the case records of examining the witnesses under Section 200 of Cr.P.C. would leave no manner of doubt that on 27.11.2020 itself he had taken cognizance of the offences. It was thereafter not open for him to change the course and revert back to the initial option of requiring police investigation and calling for police report. - Unfortunately, on 02.01.2021 this is precisely what he did. In the said order, he has recorded that after hearing the learned P.P. and after perusal of the complaint, he was of the opinion that before taking cognizance, the matter may be investigated by the police. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 406 and 409 of IPC. The request, therefore, was made to the Magistrate to take cognizance of the said offences. 3. On 24.11.2020, the Sub-Divisional Magistrate, Bishalgarh ordered that the complaint may be registered as a CR Case and be transferred to the Court of JMFC, Bishalgarh. Accordingly, on 27.11.2020, the said complaint was registered as CR 03 of 2020 and was placed before the Judicial Magistrate, 1st Class, Bishalgarh, who passed the following order: Received the case record from the Court of Ld. SDJM Bishalgarh. Make necessary entry in my T.R. The instant case is put up today on a petition filed by Ld. Counsel Mr. J.P. Saha. Ld. APP is present. Perused the case record. Received some copies of documents by firisti. Keep these along with the case record. Let the case be fixed for examination U/S 200 Cr.P.C. Fix 02.01.2021 examination U/S 200 Cr.P.C. 4. On 02.01.2021, the learned Magistrate passed the impugned order, which reads as under: Ld. Spl P.P J.P. Saha is present on behalf of the complainant. Perused the case record. Today the case is fixed for order. This is a complain filed by Mr. N.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce alleged in the complaint, he thereafter cannot send the complaint for investigation by the police under Section 156(3) of the Code. Reliance was placed on the decision in case of State of Karnataka anr. Vs. Pastor P. Raju, reported in 2006 AIR SCW 3916 , in which in the context of the question as to when the Magistrate can be said to have taken cognizance, it was observed as under: It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out. Reliance was placed on the decision in case of Mrs. Priyanka Srivastava and another vs. State of U.P. and others, reported in 2015 AIR SCW 2075, in support of the contention that in order to call for investigation under Section 156(3) of Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court even before the stage of issuance of process and challenged the order passed by the Magistrate under Section 156(3) of Cr.P.C. It was in this context observed that the stage of taking cognizance by the Magistrate would arise only after investigation report is filed before the Magistrate concerned. In the present case, the prime contention of the petitioner is that the Magistrate having previously taken cognizance of the offences, cannot revert to calling for police investigation. 10. I may now examine the contentions raised by the counsel for the petitioner in support of the challenge to the impugned order. With respect to the contention of the complainant not having previously approached the police authorities before filing a written complaint before the Magistrate, I do not find this to be a valid argument in any manner. Section 190 of Cr.P.C. pertains to cognizance of offences by Magistrates and reads as under: 190. Cognizance of offences 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r IPC. The question whether the accused in such a situation can be made answerable only for the special statue offence or general offence also, has been examined by the Supreme Court earlier. 14. In case of Jayant and others vs. State of Madhya Pradesh, reported in (2021) 2 SCC 670 , facts were that on a surprise inspection, the Mining Inspector found that the accused was indulging in illegal mining and transportation of minor minerals. He made a report suggesting that the offences can be compounded. This was accepted by the authorities and the accused also. Subsequently, it was reported that there was large scale illegal excavation and transportation of minerals without payment of royalty. The Magistrate passed and order taking note of such information. He was of the view that offences under the IPC were distinct from those punishable under Mines and Minerals (Development and Regulation) Act. He, therefore, directed registration of a criminal case against the accused and for investigation under Section 156(3) of Cr.P.C. The accused challenged the FIR under Section 482 of Cr.P.C. contending that in view of the bar under Section 22 of MMRD Act, the order passed by the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitting theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis- -vis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not invoke IPC provisions without application of mind in every case. In the present case, however, no arguments are made on the basis that even if the allegations in the complaint are taken on the face value, offence of criminal breach of trust is not made out. 18. I also do not find that the Magistrate can be said to have passed the order mechanically or without application of mind. He has perused the record, formed an opinion that before issuing process, police investigation is necessary and thereupon passed the order. 19. Coming to the contention regarding the stage at which the Magistrate can call for police report, we may recall, Section 190 of Cr.P.C. pertains to cognizance of offences by Magistrates and authorizes the concerned Magistrate to take cognizance of an offence under certain circumstances referred to in clauses (a) to (c) of sub-Section (1) of Section 190 of Cr.P.C. Section 190 Cr.P.C. falls under Chapter XIV, which pertains to conditions requisite for initiation of proceedings. Section 200, which pertains to examination of complainant falls in Chapter XV pertaining to complaints to Magistrates. Section 200 provides that a Magistrate taking cognizance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure Code, 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 cognizance of the offence . In our opinion that is the correct approach to the question before the court. 22. In case of Gopal Das Sindhi and others vs. State of Assam and another, reported in AIR 1961 SC 986 , it was observed as under: 8. The real question for determination is whether the Additional District Magistrate took cognizance on August 3, 1957, of the offences mentioned in the complaint filed before him. The transfer of a case contemplated under Section 192 is only of cases in which cognizance of an offence has been taken. If the Additional Distric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word may in Section 190 to mean must . The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offence is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so, then he would have to proceed in the manner provided by Chapter XVI of the Code. Numerous cases were cited before us in support of the submissions made on behalf of the appellants. Certain submissions were also made as to what is meant by taking cognizance . It is unnecessary to refer to the cases cited. The following observations of Mr Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs , West Bengal v. Abani Kumar Banerjee AIR 1950 Cal 437 What is taking cognizance has not been defined in the Code of Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 190 of the Code that cognizance could be taken by the Magistrate on the report of the police officer the learned counsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take cognizance only after receipt of the report of the police officer and that cognizance should be held to have been taken only after that report was actually received in the shape of a charge-sheet under Section 173 of the Code, after December 13, 1956. The insuperable difficulty in the way of this argument, however, is the fact that the Magistrate had already examined the complainant under Section 200 of the Code of Criminal Procedure. That examination proceeded on the basis that he had taken cognizance and in the face of this action it is not possible to say that cognizance had not already been taken when he made the order to Sub-Inspector, Baikunthpur, for instituting a case and report by 12.12.56. 24. This position has been maintained in subsequent decisions of the Supreme Court also. In case of Madhao and another vs. State of Maharashtra and another, reported in (2013) 5 SCC 615, it was observed as under: 17. In CREF Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce stage and avail of Section 156(3). 25. The question, however, is what amounts to the Magistrate taking cognizance of an offence for the purpose of Section 190 of Cr.P.C. This expression has not been defined under the Code of Criminal Procedure and the question whether in a given case the Magistrate can be said to have taken cognizance or not must be judged based on facts of the case. In case of Devarapalli Lakshminarayana Reddy and others vs. V. Narayana Reddy and others, reported in (1976) 3 SCC 252, the Supreme Court has made following observations: 14. This raises the incidental question: What is meant by taking cognizance of an offence by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 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. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some of the documents which were ordered to be kept along with the case record. He thereupon stated - Let the case be fixed for examination U/S 200 Cr.P.C. Fix 02.01.2021 examination U/S 200 Cr.P.C. 29. A perusal of this order dated 27.11.2020 would immediately show that the learned Magistrate had decided to examine the complainant or possibly the witnesses, if any, under Section 200 of Cr.P.C. on 02.01.2021. This he had decided after perusal of the case record and receipt of some of the documents, which were kept along with the rest of the record of the case. It is thus clear that the Magistrate had taken cognizance of the offences disclosed in the complaint. His action of perusal of the case record which led to his decision to examine the witnesses under Section 200 of Cr.P.C. at a later date clearly establishes application of mind on his part onthe allegations made in the complaint and which led to his making up his mind about the requirement of carrying out examination under Section 200 of Cr.P.C. Had the Magistrate perused the case records and was of the opinion that before deciding to take cognizance of the offence it was necessary to call for the police ..... X X X X Extracts X X X X X X X X Extracts X X X X
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