K.K.Birla - (1.) THIS is a petition under section 482 CrPC for quashing the order dated 25-10-83 whereby the Magistrate had taken cognizance against Triveni Prasad and four others.
(2.) IN brief Salig Ram filed FIR on 1-11-82 against Amar Nath Dubey and Subhash Dubey and petitioners Triveni Prasad, Murli Yadav, Ram Raj Yadav, Ram Rup Singh and Deo Nath Dubey for the offences under sections 323/324/325 and 307 IPC. After investigation charge-sheet was submitted against Amar Nath Dubey and Subhash Dubey. Salik Ram filed a protest petition on 17-9-83 for taking cognizance against Triveni Prasad and 4 others (hereinafter referred as 'the petitioners'). After perusal of the case diary and considering the* statements recorded under section 161 CrPC by a discussed order the Magistrate took cognizance under section 190 CrPC against these petitioners as well for these offences by its order dated 25-10-83. A revision preferred against that order was also dismissed by the Revisional Court by its order dated 11-1-84. The petitioners being aggrieved have preferred this petition. It is contended by the learned counsel for the petitioner that the cognizance of the offence had already been taken by the Magistrate on the submission of the charge-sheet against two persons and by the impugned order he has again taken cognizance against the petitioners, that under law Magistrate cannot take cognizance twice and, therefore, the order is bad. Secondly it is contended that the Magistrate had taken cognizance on the basis of the protest petition; the protest petition is in the nature of a complaint and before taking cognizance on the basis of the protest petition the Magistrate ought to have proceeded under section 200 CrPC and thereby taking some statements, and he has erred under law by taking cognizance against the petitioners after perusal of the case diary alone. These contentions have been repelled on behalf of Salig Ram and the State of U. P. I have heard the contentions raised by the learned counsel for the parties.
(3.) THE short points for consideration in the petition are firstly whether the summoning of the petitioners amounts to the taking of the cognizance twice; and secondly whether after submission of the charge-sheet against some of the persons named in the FIR, the Magistrate is competent to summon the other persons as accused on the protest petition being filed after perusing the case diary and without undergoing the procedure provided for a complaint under section 200 CrPC and onwards. As regards the first contention, in my opinion summoning of the accused in this manner does not amount to the taking of cognizance twice. It is the offence of which the cognizance is taken and the cognizance is not taken of the offenders The learned counsel for the petitioners has relied on the case of Shriyans Prasad Jain v. Shanti Prasad Jain, 1977 CrLJ 1270 in which it has been held that " the word 'cognizance' is used to indicate the point of time when the Magistrate or Judge first takes judicial notice of an offence. It is not a continuous process. " It is quite established and also held by the Hon'ble Supreme Court in the case of Hare Ram Satpathy v. Tika Ram Agarwala, 1978 ACC 356, that " from section 190 CrPC the Magistrate takes cognizance of an offence made cut in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As who actually the offenders involved in the case might have been, has to be decided by the Magistrate after taking cognizance of the offence".;