GARG, J. - (1.) THIS criminal misc. petition under Section 482 Cr. P. C. has been filed by the petitioner-complainant against the order dated 8. 11. 2001 passed by the learned Judicial Magistrate, First Class, Taranagar (Churu) by which he dismissed the complaint filed by the petitioner-complainant against the respondents No. 1 to 8.
(2.) IT arises in the following circumstances:- The petitioner-complainant filed a complaint on 31. 10. 2001 in the Court of Judicial Magistrate, Taranagar (Churu) against the accused respondents No. 1 to 8 for the offence under Sections 120- B, 302/109, 203 IPC stating inter-alia that on 15. 8. 1998, the accused respondents gave milk added with poison to his daughter Balkesh (hereinafter referred to as the deceased) with an intention to kill her, but since deceased had suspicion, therefore, she did not accept that milk and this incident took place at Taranagar, a place of in-laws' of deceased. However, the deceased was compelled to take milk added with poison and after about 8. 15 a. m. on 15. 8. 1998, the condition of the deceased became deteriorated and, thereafter she was admitted in the hospital at Taranagar and later on, she was shifted to churu hospital, where she died. IT was further stated in the complaint that on 15. 8. 1998, the accused respondents lodged a report in the Police Station Kotwali, Churu stating that deceased died because of some ailment. On that report, murg FIR under Section 174 Cr. P. C. was registered at Police Station Kotwali, Churu and during investigation, the learned S. D. M. , Churu found that the milk added with poison was given to the deceased by her Jethani Aamina Bano (accused respondent No. 1) and through letter dated 22. 6. 2000, the learned SDM, Churu made a request the S. P. , Churu that FIR be registered against Amina Bano (accused respondent No. 1) and, thereafter, FIR No. 128 was registered at Police Station, Taranagar (Churu) on 1. 8. 2000 for the offence under Section 498a, 302 IPC. The police later on converted the case from 302 IPC to 306 IPC and 498a IPC and thus, a challan was filed against the accused respondent No. 1 Aamina Bano for the offence under Sections 306 and 498a IPC in the Court of Judicial Magistrate, Taranagar and from where the case was committed to the Court of Addl. Sessions Judge, Rajgarh (Churu) where Sessions No. 25/2001 was registered and that sessions case was fixed on 13. 7. 2001 for arguments on charge. IT was further stated in the complaint that on 13. 7. 2001, the petitioner-complainant filed an application purporting to be under Section 173 (8) Cr. P. C. accompanied by several documents with the prayer that further investigation in that case be got conducted through CID (CB)/cbi and that application was rejected by the learned Addl. Sessions Judge, Rajgarh (Churu) through order dated 2. 8. 2001. Against the said order of the learned Addl. Sessions Judge, Rajgarh (Churu) dated 2. 8. 2001, the petitioner- complainant filed a revision before this Court, which was registered as S. B. Cr. Revision Petition No. 430/2001 and this Court vide judgment dated 21. 8. 2001 dismissed summarily that revision petition holding inter-alia that during trial, if evidence comes, action can be taken under Section 319 Cr. P. C. Against the judgment of this Court dated 21. 8. 2001, the petitioner-complainant filed SLP before the Hon'ble Supreme Court, which was registered as SLP (Cri.) No. 3617/2001 and the Hon'ble Supreme Court Court vide order dated 8. 10. 2001 dismissed that SLP as withdrawn. Narrating all the above facts, the petitioner-complainant prayed in the complaint the cognizance be taken against the accused respondents including Aamina Bano against whom challan for the offence under Section 306 and 498-A IPC had already been filed, for the offence under Section 120-B, 302/149, 203 IPC. The learned Judicial Magistrate, First Class, Taranagar (Churu) through order dated 8. 11. 2001 dismissed that complaint of the petitioner-complainant, after giving the following reasons:- (1) That it is an admitted position of the case that for the death of the deceased, a challan for the offence under Sections 498a and 306 IPC had already been filed against the accused respondent No. 1 Aamina Bano and after the challan was filed, the case was committed to the Court of Session and the case is pending with the Court of Addl. Sessions Judge, Rajgarh and since the Addl. Sessions Judge, Rajgarh had already rejected the prayers of the petitioner-complainant for further investigation and for adding other accused persons, therefore, it was not within his competence or jurisdiction to further proceed in the matter and make investigation and add some other accused persons. (2) That this Court through judgment dated 21. 8. 2001 upheld the order of the learned Addl. Sessions Judge, Rajgarh dated 2. 8. 2001 rejecting the prayers of the petitioner-complainant for further investigation and for adding other accused persons and since this Court ordered that action could only be taken under the provisions of Sec. 319 Cr. P. C. , therefore, nothing could be done by him at that stage. (3) That after filing of challan and commitment of case to the Court of Session, it was not within his competence and power to add some additional accused in the cases exclusively triable by the Court of Session and for that, he placed reliance on the decision of the Hon'ble Supreme Court in Raj Kishore Prasad vs. State of Bihar & Anr. (1 ). Aggrieved from the said order dated 8. 11. 2001 passed by the learned Judicial Magistrate, Ist Class, Taranagar (Churu), this misc. petition under Sec. 482 Cr. P. C. has been filed by the petitioner-complainant. In this petition, the following submissions have been raised by the learned counsel appearing for the petitioner-complainant:- (1) That once the complaint is filed before the Magistrate, he is duty bound to record the statements of the complainant and his witnesses under Sections 200, 202 Cr. P. C. and since in the present case, the complaint was dismissed by the learned Judicial Magistrate without recording the statements of the complainant and his witnesses under Sections 200, 202 Cr. P. C. , therefore, that order is illegal and without jurisdiction and it should be set aside. (2) That the Magistrate does not become functus officio after committing the case under Section 209 Cr. P. C. to the Court of Session and the complaint can be entertained by him even after filing of challan and commitment of case to the Court of Session, as complaint case is a separate case by itself having its independent identity from the police case. In other words, there is no bar in the Code of Criminal Procedure to take cognizance of the offence on a private complaint even if a charge sheet is filed by the police and the offence was taken cognizance of and for that, he placed reliance on the decision of Andhra Pradesh High Court in Gude Lakshmi Basava Poornima vs. State of Andhra Pradesh (2), where it was held that filing a charge-sheet against accused by police for an offence is not a bar for court to take cognizance of same offence on a private complaint. Hence, it was prayed that this misc. petition under Section 482 Cr. P. C. be allowed and the impugned order of the learned Judicial Magistrate, First Class, Taranagar (Churu) dated 8. 11. 2001 be set aside and the learned Judicial Magistrate be directed to proceed with the complaint filed by the petitioner- complainant. I have heard the learned counsel appearing for the petitioner at the admission stage and perused the materiel available on record. Point No. 1 (5) Sub-section (1) of Section 190 Cr. P. C. reads as under:- " 190. Cognizance of offence 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 any offence.- (a ). . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . 2 . . . . . . . . . . . . . . . . " The expression may take cognizance on a complaint", in my considered opinion, does not mean that once a complaint is filed the Magistrate is bound to take cognizance. In this connection, the word "may" appearing in section 190 Cr. P. C. does not mean "must", a complaint disclosing cognizable offence may justify a Magistrate in sending complaint to a police officer for investigation under Section 156 (3) Cr. P. C. On the other hand, there may be occasions when a Magistrate may exercise his jurisdiction and take cognizance. At the time when the Magistrate is taking cognizance under Section 190 Cr. P. C. , he must examine the facts of the complaint before him and determine whether his power of taking cognizance has or has not been taken away under any other Act. The expression "taking cognizance" is not defined in the Code, but from the scheme of the Code, the content and heading of Sec. 190 and the caption of Chapter XIV under which Secs. 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. Clauses (a), (b) & (c) lay down the ways in which such cognizance can be taken. Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. When no receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding section in Chapter XV of the Code, he is said to have taken cognizance of the offence. If he has in the judicial exercise of his discretion, taken action on some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence. If the Magistrate applies his mind not for the purpose of proceeding under Chapter XVI but for taking action of some other kind, there is no cognizance of the offence. The word "cognizance" means to apply the mind in respect of the facts constituting the offence.
(3.) IN Gopal Das Sindhi vs. State of Assam (3), the Apex Court has held that the provisions of Section 190 Cr. P. C. do not mean that once a complaint is filed, a Magistrate is bound to take cognizance, if the facts stated in the complaint disclose the commission of any offence. On the presentation of the complaint, the Magistrate is not bound to take cognizance. In my opinion, the use of the word "may take cognizance" in Section 190 Cr. P. C. imports the exercise of judicial discretion and the Magistrate who receives the report under Section 173 will have to consider the said report and judicially take a decision whether or not to take the cognizance of the offence. Thus, it can be concluded:- (1) That the Magistrate is not bound to take cognizance in all cases of complaint or police report. (2) That the word "may" appearing in Section 190 Cr. P. C. cannot be construed to mean "must". ;