Mansha Ram And Ors. vs The State Of U.P And Ors.
2012 Latest Caselaw 5512 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

																	A.F.R			
 
Court No.8
 
				
 
Case :- U/S 482/378/407 No. - 4823 of 2012
 

 
Petitioner :- Mansha Ram And Ors.
 
Respondent :- The State Of U.P And Ors.
 
Petitioner Counsel :- J.P Yadav
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Vishnu Chandra Gupta,J.

Heard learned counsel for the petitioners and learned AGA.

By means of this petition under section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') the petitioners have challenged the charge sheet (Annexure-2) filed by police under Sections 323, 504 IPC against them and order of taking cognizance there on vide order dated 3.7.2010(Annexure-3).

The factual matrix in short for deciding this petition is that initially under orders of the Magistrate passed under Section 156(3) a first information report was lodged at Case Crime No.218A of 2010, under Sections 147, 323, 504, 394, 307 IPC in Police Station Taroon, District Faizabad. The matter was investigated by the police and after investigation it was found that offences only under Sections 323, 504 IPC are made out and submitted the charge-sheet on 12.05.2010 against the petitioners whereupon the court took cognizance and proceeded against the accused by issuing summons vide impugned order dated 03.07.2010.

It has been submitted by learned counsel for the petitioners on the strength of judgments of this Court delivered in Dhanveer and Ors Vs. State of U.P. and another reported in 2010 (71) ACC 388 and judgment delivered in Application Under Section 482 No.32940 of 2010 Mahtab and others Vs. State of U.P. And another on 1.10.2012 contended that in view of the provision contained in in Section 2(d) of Cr.P.C. if police officer submits a report under Section 173 in respect of a non-cognizable offence the procedure prescribed for conducting the trial of such cases would be of complaint case. On this score and on the strength of cited judgments the cognizance has been assailed on the ground that the same cannot be treated to be taken on complaint under section 190 (a) and would be treated to be taken under section under Section 190(b) of the Cr.P.C..

There could not be any divergence with the proposition of law as held in aforesaid cases cited by the learned counsel for the petitioners. It is not disputed that police submitted a chargesheet in non-cognizable offence after investigation, therefore the chargesheet submitted in this case shall be treated as complaint as defined in explanation of section 2(d) of Cr.P.C. which is reproduced herein below

"2(d). "complaint" means any allegation ...........

		Explanation.-- A report made by a police officer in a 			case which discloses, after investigation, the 				commission of  	a non-cognizable offence  shall be 			deemed to be a complaint; and the police officer by 			whom such report is 	made shall be deemed to be the 		complainant;
 
Therefore the Magistrate is bound to follow the procedure of a complaint case for the trial of the accused. 
 
	Procedure for complaints to Magistrate is given in Chapter XV of Cr.P.C. This provides the procedure for taking cognizance on a complaint, which contains in Sections 200 to 203 Cr.P.C. Section 200 of Cr.P.C. is reproduced here-in-below:-
 

"200. Examination of Complainant.-- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present , if any, and the substance of such examination shall be reduced in writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing , the Magistrate need not examine the complainant and the witnesses--

		(a)	if the public servant acting or purporting to act 			       in discharge of his official duties or the Court has 		       made the complaint; or
 
		(b) if the Magistrate makes over the case to another 			     Magistrate under section 192:
 
		Provided further that if the Magistrate makes over 	case to another Magistrate under section 192 after 	examining of complainant and witnesses, the latter 	Magistrate need not re-examine them." 
 

First proviso added to Section 200 provides a procedure where a complaint made in writing by a public servant acting or purporting to act in discharge of his official duties the Magistrate need not examine the complainant and witnesses. The court can proceed on the basis of complaint and material annexed with the complaint in writing. The Magistrate may either proceed under Section 203 Cr.P.C. if he satisfies that no sufficient material is available to proceed against the accused.But where the Magistrate is of the opinion that there is sufficient material to proceed against the accused he will issue process to the accused in pursuance of Section 204 Cr.P.C.

Section 204 Cr.P.C. is in the chapter XVI of the Cr.P.C which have heading"COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATE". Thus Section 204 Cr.P.C. is not only meant for taking cognizance by issuing process upon complaint under section 190(a) of Cr.P.C. but this section also apply for taking cognizance on police reports under section 190(b) and in other contingencies as mentioned in section 190(c). This is evident from the provision of sub section 3 of section 204 and heading of Chapter XVI of Cr.P.C. No prescribed form or format is available in the Cr.P.C. for taking cognizance of offence and issue of process against accused. The Magistrate took cognizance after considering the material available on record and if the Magistrate is satisfied that the material available on record is sufficient to proceed against the accused he by passing the order for summoning the accused to face the trial either by way of summon or by warrant as the case may be for the attendance of accused to face the trial.

Admittedly, no procedure is prescribed in Cr.P.C., in what manner the Magistrate has to pass an order in all three contingencies. Therefore,the Magistrate may adopt the procedure similar to all three contingencies contained in Section 190 of Cr.P.C.

From perusal of the impugned order of taking cognizance of offence and issuing process, it is clear that Magistrate after satisfying with the material on record issue process to the accused person. True, that the Magistrate has not mentioned in his order that he is taking cognizance under Section 190(1)(a) or (b) or ( c) of Cr.P.C. but for this simple reason it could not be assumed that the Magistrate took cognizance under Section 190 (b) and not under section 190(a).

As stated earlier that pre-cognizance stage had already been over and cognizance has taken. So far the pre-cognizance stage is concerned, in case of written complaint made by a government servant his examination and examination of witnesses under Section 200 Cr.P.C. is not at all required. Admittedly, in this case in view of Section 2(d) of the Cr.P.C. the police inspector submitted the charge-sheet under Section 323, 504 IPC before Magistrate so in view of the first proviso of Section 200 Cr.P.C, the Magistrate need not go back to pre-cognizance stage and the Magistrate would be competent enough to pass an order taking cognizance of offence and to issue process against the accused. However, after taking cognizance and issue of process against the accused it would be incumbent upon the Magistrate to adopt the procedure meant for trial of accused in a complaint case.

In view of the aforesaid facts and circumstances the cognizance taken by the Magistrate shall deemed to have been taken under section 190(a) and not under section 190(b) of Cr.P.C. Thus, in the opinion of this Court the impugned order of the Magistrate neither have any illegality nor suffer from any jurisdictional error. Of course, it would be better if Magistrate clarifies it in the impugned order by describing it that cognizance is taken in the light of provisions contained in explanation of section Section 2(d) or taken under section 190(a) of Cr. P.C. But Only due to absence of it would not vitiate the order of taking cognizance specially when no prejudice shown to have been caused to petitioners. More over this act of the Magistrate does not fall in any of the clause (a) to (q) of Section 461of Cr.P.C.,therefore on this score too , the order of taking cognizance in the case in hand shall not be void and and will not vitiate the proceedings.

It is evident that in both the above mentioned Judgments of this Court in Dhanveer's case (Supra) and in Mahatab's case (Supra), wherein judgments were delivered by Single Judge of this Court, cited by the learned counsel for the petitioners the impact of section 190, 200,204 and section 461 has not been considered while setting a side the order of taking cognizance. As this Court differs with the opinion expressed in aforesaid two judgments by Single Judge of this Court, therefore, the record of this case be placed before Chief justice of this court with a request to form a larger bench to decide the controversy in question on the following formulated questions:-

1. What procedure ought to have been adopted by the Magistrate before taking cognizance of offence and issuing process against the accused on a report made by the police officer in a case which discloses, after investigation, the commission of a non-cognizable offence ?

2. Whether the Magistrate could pass an order issuing process against the accused persons on a report made by the police officer in a case which discloses, after investigation, the commission of a non-cognizable offence without examination of police officer and the witnesses keeping in view of the provisio added to section 200 of Cr.P.C. without mentioning in the order specifying section 190(a) of Cr.P.C.?

3. Whether the order passed by the Magistrate issuing process on a report made by the police officer in a case which discloses, after investigation, the commission of a non-cognizable offence without specifying the details as mentioned in question No.2, shall deemed to have been passes under Section 190(b) ?

It has been submitted by the learned counsel for the petitioners that in this case the Magistrate has issued the warrant against the petitioners. It is not borne out from the record whether the summon has ever been served upon the accused persons or not. Therefore, no coercive steps shall be taken against the petitioner and further proceedings of Criminal case No. 1497 of 2012, State vs. Mansa Ram and others , under section 323,504I.P.C., P.S. Taroon District Faizabad relating to crime No.219A of 2010 shall remain suspended till further orders of this Court or till receipt of answers of the referred questions by the larger Bench of this Court,which ever is earlier.

The office is directed to send the record of this case through Registrar of this court to place the same before Hob'ble Chief Justice for appropriate orders.

Date:-7.11.2012

Ajay