- (1.) S. K. Phaujdar, J. This application under Section 482, Cr. P. C. has been filed by the present applicant for quashing the proceedings in Case Crime No. 17 of 1996 under Sections 147,148,149,325,323,336, 504, 506, 109 and 307, IPC, P. S. Kotwali, District Basti. Investigation resulted in a charge-sheet upon which Criminal Case No. 23 of 1996 has been started before the CJM, Basti. On the presentation of this application, an interim order was passed on 16-9-1996 staying the further proceed ings in the criminal case and the interim order stood extended from time to time and is in operation even now.
(2.) INITIALLY a charge-sheet No. 66 of 1996 was submitted in which Section 307, IPC was not mentioned. But subsequently, a supplementary charge-sheet was added whereby an offence under Section 307, IPC has also been alleged. In the initial charge-sheet 8 persons were named but in the supplementary only the present applicant was shown to be involved for the offence under Section 307 IPC. It was urged on behalf of the applicant that he was not at all present in the village on the date of inci dent and the gun allegedly used by the applicant had been deposited at the police station prior to the alleged incident. It was urged further that even on the face of the averments, no case under Section 307, IPC was made out. The learned Counsel was con fronted with a question, if a plea of alibi could be considered for quashing a cog nizance or the allegations made in a charge-sheet. This question was definitely posed in the order elated 26-9-1997 but no definite answer to this question could be given by the learned Counsel. In my view, alibi, however strong it may be, it but a defence and it would be relevant during evidence no doubt, but it would be prema ture to rely on the plea of alibi and thereby to nullify a prosecution case at the outset. Regarding deposit of the gun at the police station, lam of the view that it is also a question of defence and even if it is prima facie accepted that the gun of the applicant stood deposited with the police, it may not be reasonable to hold that the applicant for that reason only would be presumed not to have held any gun or not to have opened fire from it. This aspect is to be seen only during trial after evidence is adduced.
(3.) THERE is, however, sufficient force in the argument that even a prima facie reading of the FIR and the materials in the case-diary did not make it a case under Section 307, IPC. The learned Counsel took me through the text of Section 307, IPC as also through the statements of the witnesses to highlight his point that admit tedly the applicant had made blank fires in the air and this itself negatives the theory of intention to kill. The Magistrate is empowered to take cognizance under Section 190, Cr. P. C. and although the term cognizance has not been defined in the Cr. P. C. the judicial decisions had given a meaning to this term suggesting that cognizance means exercise of the judicial discretion to proceed with the case. Congnizance on a police report is taken when a report under Section 173, Cr. P. C. is submitted. Judicial decisions made it further clear that when a report is submitted under Section 173, the court not to blindly act upon the opinion of the police officer, rather he is to look to the materials to find if cognizance should be taken. Similarly, for a complaint case, the court is empowered to issue process if according to it there is sufficient ground for proceeding against the accused per sons. When it is a case where an offence exclusively triable by the court of session is alleged, the matter is to commit the case in terms of Section 209, Cr. P. C. and the lan guage of the section indicates that it should appear to the Magistrate that the offence is triable exclusively by the court of session. These sections have been referred only to highlight the point that taking of cognizance or commitment of a case is not to be done mechanically and the court is to see about prima facie existence of a case and about prima fade material that a case is triable exclusively by the court of session.;