HIGH COURT OF KERALA
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(1.) The order sought to be revised here is one passed by the Sub Divisional Magistrate, Malappuram, in C. C. 148 of 1973. By that order he refused to take cognizance a second time of certain offences alleged in a private complaint. The offences complained of were those under S.143, 147, 148, 323, 324, 447 and 448 of the Indian Penal Code, which he had already taken cognizance of in C. C. 148 of 1973 on the basis of a police charge. In the private complaint besides the ten accused persons in the police charge three more persons were implicated. The Magistrate by the order, sought to be revised, directed them to be added as additional accused 11 to 13 in C. C. 148 of 1973. It is the correctness of that order that is challenged here in this Revision Petition.
(2.) The order impugned is fully, justified by the decision of this court in Asokan v. Narayanan & others ( 1972 KLT 728 ) where one of us after observing that although there was nothing unconstitutional and illegal in trying a person more than once for the same offence there was a tinge of barbarity in it and that that could be avoided, said:
"Piecemeal cognizance of a single offence or a series of offences committed in the course of the same transaction is not warranted by the provisions of the Code. Instances are not wanting where after a Magistrate has taken cognizance of an offence on the basis of a . Police report interested parties have filed private complaints to break op the essential integrity of the case. Magistrates should be alert to it. Taking cognizance is of offences and not offenders. That being the true position a Magistrate can take cognizance of an offence even if the offenders are not known at the time. If offences are committed in the course of the same transaction and he has already taken cognizance of the same on one of the grounds mentioned in S.190(1) it is unnecessary for him to take cognizance of the same again on one or more of the other grounds. After he has taken cognizance of an offence if it comes to his, knowledge that more persons than implicated already are also involved in the case he can add them to the case he has already taken up ........................ Magistrates should realise that when they take cognizance of an offence they are discharging a judicial function. Instead of mechanically taking cognizance of the same offences twice on police report and private complaint they should when they receive a police report or private complaint consider whether they have already taken cognizance of the same offences and whether they cannot be tried at one trial. It is high time that the prevailing practice of Magistrates indiscriminately taking cognizance more than once of the same offences which can the tried at one trial is put a stop to."
Although that was a case exclusively triable by a Court of Session, the principles mentioned there apply with equal force to all cases where Magistrates have to take cognizance of offences under S.190(1) of the Criminal Procedure Code, 1973, Act 2 of 1974, -- old section also is 190(1) , also. The provisions in S.210 of the Code of 1973 are new. That section reads:
"210. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held, by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under S.173 and or such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
The provisions in it do not show that the proper course for the Magistrate when there is both a private complaint and a police charge for the same offence is to take cognizance of it twice. Clause (3) of the Section shows that when there are both a private complaint and a police charge in respect of the same offence and the Magistrate has already taken cognizance of the offence based on the private complaint he may not separately take cognizance of the same offence based on the police report. Clause (3) provides the procedure to be followed in such a case. If in respect of an offence already taken cognizance of based on a , private complaint the Magistrate conies to know that police investigation is in progress he should under clause (1) stay the proceedings in the case started oh the private complaint and call for a police report. This is a preventive measure. It is to avoid, as far as possible, taking cognizance of the same offence again and to avoid separate trials for the same offence. The provision in clause (2) for trial together of the two cases, if cognizance happens to be taken twice on private complaint and police report, is only to avoid the anomalies arising from taking cognizance of the same offence more than once. From the mere fact that a cure has been provided it does not follow that preventive measures should not be taken. If the preventive measures prove successful, occasion may not arise at all for resort to the curative process. The provisions in S.210 of the Criminal Procedure Code of 1973 are in perfect accord with the principles laid down in Asokan v. Narayanan & others 1972 KLT 728 that the proper course for a Magistrate taking cognizance under S.190(1) of the Code of any offence, irrespective of the nature of its trial, is to take cognizance of it only once. And that is what the Magistrate has done in the present case. The request for interference in revision is declined. This Revision Petition is dismissed.;
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