- (1.) BY order dated 47. 7. 86, the Judicial Magistrate No. 1, Jaipur City, Jaipur has taken cognizance against the petitioner for the offence under Section 323 IPC and at the same time he has directed that the APP should conduct the case and the accused be summoned. Against this order of taking cognizance, the petitioner has preferred this petition under section 482 Cr. P. C.
(2.) THE facts in brief are that the non-petitioner No, 2, Mahesh Jhalani lodged a first information report on 6. 2. 86 at Police Station Vidhayak Puri Jaipur which was registered for the offences under Secs. 323 & 341 IPC read with Sec. 34 IPC After investigation, the police came to the conclusion that offence under Section 323 IPC alone was made out but as this offence was non cognizable a final report was given and the police did not present a challan. THEreafter, on April 1, 1986, the ! non-petitioner No. 2 filed a complaint before the Judicial Magistrate No. 1, Jaipur City, Jaipur for the offence under Secs. 394, 341 and 323 read with Sec. 34 IPC. THE learned Magistrate on the same day ordered that report of the Police Station Vidhayakpuri be called under Sec. 210 Cr. P. C THEreafter, on 17. 07. 1986 the learned Magistrate perused the complaint as well as the final report submitted by the police as also the site inspection report, statements recorded under Sec. 16. 1 Cr. P. C. and the injury reports and passed the order taking cognizance for the offence under Sec. 323 IPC and issued summons for the appearance of the accused and this order is under challenge. The main grounds of attack of the learned counsel for the petitioner are as under:- (1 ). Cognizance of the offence had been taken on 1. 4. 86 when the Magistrate called for the report of the police officer under Sec. 210 Cr. P. C. and that cognizance could not have been taken again at a subsequent stage; (2 ). The Magistrate has ordered the issue of process for the appearance of the accused but this has been done without recording statements of the complainant arid his witnesses under Secs. 200 and 202 Cr. P. C. In other words the contention is that the procedure prescribed for complaint cases has not been followed; (3) That cognizance has been taken under Sec. 190 (1) Cr. P. C. but the police officer who can be said to be the complainant within the explanation to Sec. 2 (d) Cr. P. C. has not been examined and his examination is not excluded under Sec. 200 Cr. P. C; (4) That the substance of accusation has been read over to the petitioner on 1. 6. 88 but there was no evidence on record on the basis of which, the Magistrate could do so; (5) That, the petitioner should have been heard before taking cognizance when the police did not present the charge sheet; and (6) That the APP has been asked to conduct the case when there is no provision for doing so. The learned counsel for the non-petitioner has contended that in this case, it could be said that cognizance has been taken by the Magistrate under Sec. 190 (1) (b) Cr. P. C. and it was also open to the Magistrate to take cognizance under Sub-sec. (2) and follow the procedure prescribed for complaint cases. It is contended that according to the police report a non-cognizable offence was made put and the report submitted to this effect could be made a basis of taking cognizance under clause (b) of Sec. 190 Cr. P. C. and while adopting this procedure it was not necessary to record the statement of the complainant or his witnesses before issuing process for the appearance of the petitioner. It is also contended that when cognizance is on a police report, then the court could have directed the APP to. conduct prosecution. Besides this, it has been argued that the cognizance in the case was taken on 19. 07. 1986 and the petitioner have moved this court after lapse of nearly three years, and he should not be allowed to re-open this matter. The learned counsel for the petitioner has placed reliance on Shiva Shive Prasad Shukla Vs. State (1), wherein it was observed that the Magistrate cannot pass a composite order both under Sections 165 (3) and 202 Cr. P. C. When he has taken cognizance of the offence disclosed in the petition of complainant, he cannot send the complaint to the police for further investigation. While discussing as to what amounts to taking cognizance it was observed that were a Magistrate applies his mind not for the purpose of proceeding under Chapter XVI but for taking action of some other kind, as for example, ordering an investigation under Sec 156 (3) Cr. P. C. or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The learned counsel for the petitioner has placed reliance on Shyam, Prasanna Das Gupta Vs. The State (2 ). In this case it has been held that where a police officer investigates a private complaint and thereafter submits a petition of complaint, he does so not as a public servant but as a complainant and as such, his examination under Section 200 Cr. P. C. was essential. Non-examination of the said complainant would affect the jurisdiction of the court to take cognizance and would vitiate the entire trial. Relying upon M/s. India Carat Pvt. Ltd. Vs. State of Karnataka (3) it has been contended by the learned counsel for the non-petitioner that both the options were open to the Magistrate. He could have taken cognizance under section 190 (1) (b) Cr. P. C. or he could have proceeded under Chapter XV of the Code of Criminal Procedure and in the present case, cognizance has been taken under section 190 (l) (b) Cr P. C. and this is not illegal. In this case, the police had given a report under section 173 (2) Cr. P. C. to this effect that no case was made out against the accused. Referring to Section 190 (1mb) Cr. P. C. it has been held that this section does not lay down that a Magistrate can take cognizance for an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate. . . . Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under section 190 (1) (b) Cr. P. C. and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in sections 200 and 202 Cr. P. C. It could not be said that the Magistrate should have called upon the informant to find out whether he was challenging the police report and if so, to make a swory statement and also examine his witnesses and thereafter only the Magistrate should have decided whether cognizance should be taken of the offences and process issued to the accused.
(3.) IN Triloki Nath Sinha Vs. State (4) it has been held that a Magistrate can take cognizance on police report of a non-cognizable offence on the report submitted by the SHO. If the officer has not been examined then the conviction cannot be set aside on the ground of this irregularity. The questions which arise in this petition are whether the Magistrate took cognizance of the offence , against the petitioner upon the complaint made by the non-petitioner No 2, or upon the police report called for under Section 210 Cr. P. C. and secondly, if cognizance was taken on basis of the report made by the police, was it necessary that the police officer making the report should have been examined as a complainant under secs. 200 and 202 Cr. P. C. before taking Cognizance against the petitioner, I have perused the record and considered the statement made on be-half of both the sides. First of all it may be said that the Magistrate, while calling for the papers of the police investigation did not apply his mind in order to find out whether cognizance should be taken or not. He has called for the papers under sec. 210 Cr. P. C. and it was only after the receipt of these papers that he decided to take cognizance. It cannot be said that calling for the papers under Sec. 210 Cr. P. C. would amount to taking cognizance of the offence against the petitioner. Section 210 Cr. P. C. has been enacted so that separate proceedings are not taken in cases where there is a complaint and also investigation by police and it also provides that where cognizance has already been taken on a complaint, further investigation is not made by the police. Calling for the report of the police under Sec. 210 Cr. P. C. by itself would not amount to an under taking cognizance. The Patna case cited above, does not give an exhaustive list of the situations which would amount to taking cognizance. The test is when the court applied its mind and in the present case, there is nothing to show that the court had decided on 01. 04. 1986 that a particular offence had been committed and cognizance should be taken. ;