GUPTA, J. - (1.) - This misc. petition is directed against the orders dt. 22. 2. 96 and 21. 11. 96 passed the learned Judicial Magistrate, Sanchore. By the first order, the learned Magistrate had taken cognizance of the offences under Sections 447 and 323/34 IPC and ordered the summoning of the petitioners as accused. By the second order, an application filed under Section 468 Cr. P. C. , by the accused- petitioners was rejected.
(2.) THE contention of Mr. Bishnoi, learned counsel for the petitioners was two fold: One,for the occurrence dt. 28. 12. 94, the cognizance under Section 323 and 447 IPC could be taken within one year, and as the cognizance had been taken after the expiry of one year, it is liable to be quashed. He has relied on the observations of the Supreme Court in the case of A. R. Antulay vs. Ramdas Sriniwas Nayak (1) and Krishna Pillai vs. T. A. Rajendran Two, the petitioners were entitled to protection under Section 197 Cr. P. C. because of the provisions of Section 56 of the Indian Electricity Act, 1910 and Section 82 of the Electricity (Supply) Act, 1948 and as the sanction of the competent authority was not obtained before prosecuting them, the cognizance is liable to be quashed. He has cited the case of Anand Singh vs. State of Rajasthan (3) in support of this contention. On the other hand, the contention of Mr. Shah, learned counsel for the respondent, was that the Magistrate had taken cognizance on 11. 9. 95, the date on which he proceeded to examine the complainant and his witnesses on the protest petition and therefore, the cognizance was not barred by time. He has relied on the cases of D. L. Reddy vs. V. N. Reddy (4) and Nathu vs. State of Rajasthan Mr. Shah urged that the petitioners acted in good faith or not, is a question which can be decided o n ly after evidence is led by both the parties. I have considered the rival submissions made by the counsel for the par- ties. Section 468 Cr. P. C. bars taking of cognizance after the lapse of a period of one year of the offences punishable with imprisonment for a term not exceeding one year. The offences under Section 323 & 447 IPC are punishable with imprisonment not exceeding one year. It is obvious that cognizance of the offences could not be taken after the expiry of the period of one year, without granting extension of period under Section 473 Cr. P. C. The order dt. 22. 2. 96 indicates that the learned Magistrate had rejected the final report, submitted by the police on that day, and had issued process against the accused-petitioner for the offences under Sections 447 and 323/34 IPC. The serious question to be decided is whether the date 22. 2. 96 should be considered as the date of taking cognizance of the offence. The Magistrate takes cognizance of an offence under Section 190 (1) (a) Cr. P. C. upon receiving a complaint on facts which constitute such offence. It is obvious that taking of cognizance precedes the summoning of an accused. It is not correct to say that cognizance of the offence is taken by the Magistrate when he issues process against the accused. The correct legal position is that the stage at which the Magistrate embarks upon the enquiry under Chapter XV of the Code of 1973, it can be said that he has taken cognizance of the offence. The Magistrate takes cognizance of the offence and not against the offenders. The process of summoning accused in a case takes place subsequent to taking of the cognizance of the offence by the Magistrate vide : Nathu vs. State (supra), which judgment is based on the two decisions of the Hon'ble Supreme Court: D. L. Reddy vs. V. N. Re- ddy (supra) and Nirmal Jit Singh vs. State of West Bengal (6), wherein it has been held that the Magistrate can be said to have taken cognizance on a complaint, when on receiving a complaint, he applies his mind for the purpose of proceeding u/sec. 200 and succeeding sections in Chapter XV of the Code of 1973.
(3.) IN the instant case, the complainant had lodged a report with the police. The police after investigation gave final report. The learned Magistrate gave notice to the complainant vide order dt. 5. 7. 95. The complainant appeared before the Magistrate and filed a protest petition on 11. 9. 95, on which the Magistrate ordered that the witnesses shall be examined. IN my opinion, it is the date 11. 9. 95 on which cognizance of the offence can be said to have been taken by the Magistrate. Ofcou- rse, in the order dt. 22. 2. 96 it was recorded by the Magistrate that he was taking cognizance of the offence under Sec. 447 and 323/34 IPC but these observations will not make the order dt. 22. 2. 96, the order of taking cognizance. As a matter of fact, the Magistrate had already taken cognizance of the offences on 11. 9. 95 when he proceeded to enquire into the matter under Chapter XV of the Code of 1973. Now, it is to be seen as to whether the judgment of the Apex Court in the case of A. R. Antulay (supra) lays down different proposition of law. Mr. Bishnoi has relied on the following observations of their lordships at para 31 of the report:- "when a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Cr. P. C. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially examine whether a case is made out for issuing process. When it is said that court issued process, it means the court has taken cognizance of the offence and has decided to initiate the proceedings and as a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the court. " These observations cannot be interpreted to mean that the cognizance of the offence is taken when the process is issued against the accused. What has been observed is that issuance on the process against the accused is a visible manifestation of taking cognizance by the Magistrate. It clearly means that the act of `taking cognizance' takes place before the Magistrate issues process against the accused. The process is only a visible manifestation of the factum of taking cognizance. The observations, thus do not lay down different proposition of law. ;