SATYAVARAT SHRI NIWAS Vs. STATE

JUDGEMENT

(1.) [Ed. facts : One Jokhu Pershad's daughter who was alleged to be minor was missing and suspects were alleged to have a hand in her kidnapping etc. Tulsi Ram was alleged to be main culprit. He was taken to Police Station more than once. A lawyer applied for bail on his behalf. Report of the SHO was called for. The lawyer made another application levelling serious charges against the Police about atrocities being committed against Tulsi Ram suspect and also he was in Police custody since several days without producing him before a Magistrate. The Magistrate took serious view of the matter and started proceedings against Police officers. The latter moved High Court for quashing proceedings, pointing out besides other things that during the said period, the suspect was arrested by Kashmere Gate Police and on his confession had been convicted with fine.] After detailing above facts, Judgment is :

(2.) The main thing, therefore, that emerges in this case is that already an FIR No. 293/90 had been recorded u/S. 363 Indian Penal Code against Tulsi Ram and others. According to his own admission Tulsi Ram was interrogated in respect of the disappearance of Lakshmi even on 4.11.90. These facts would prima facie show that Tulsi Ram was aware as to in what connection Jokhu Parshad had lodged a report against him.

(3.) During the course of arguments, it is not disputed on behalf of Tulsi Ram also that it is a case in which the Magistrate chose to take cognizance of various offences u/S. 190(1)(c) of the Code of Criminal Procedure because the proceedings were started by him upon information received from Sh. Thakur, Advocate. However, according to the learned counsel, the stage of taking cognizance of the offence on 14.12.90 when the impugned order was recorded, had not yet arrived because the Magistrate did not record any evidence after taking cognizance of the offence on 14.12.90. He further submitted that the contention of the learned counsel for the petitioners that the cognizance was taken by the Magistrate on 9.11.90 was not correct because on that date the Magistrate only called for a report from the SHO on the bail application. I think counsel for both the parties in this respect do not scem to be correct. The statements of three witnesses were recorded by the Magistrate on 10.11.90 and noton9.11.90. At that time the petitioner Satya Varat and incharge PP Khajoori Khas were present. The very fact that the Magistrate chose to record evidence on 10.11.90 in the presence of two accused persons would clearly go to show that the Magistrate took cognizance of the allegations in the bail application on the footing of a complaint on 10.11.90 itself because he had called for the report of the police for that date. He, thereafter recorded the statement of other witnesses on 12.11.90 and that of Tulsi Ram on 14.11.90 andofSitaRamonl5.11.90. The procedure for taking cognizance of an offence on a complaint commences from S. 200 of the Code. S. 200 of the Code says that a Magistrate taking cognizance of an offence on complaint shall record the statements of the complainant and witnesses. If there is no sufficient evidence then the Magistrate is empowered to dismiss the complaint u/S. 203 of the Code. However, if in his opinion, there is sufficient ground for proceeding, then either a summons or a warrant, as warranted by the facts of the case, has to be issued against the accused. Therefore, the cognizance of an offence by a Magistrate starts from the date when he starts recording evidence on a complaint and not from the date when upon a consideration of the evidence recorded by him he chooses to take action against the accused. In this case the Magistrate did not believe the report of the police dated 10.11.90 that the where-abouts of Tulsi Ram were still not found by the police and he was very much wanted because he was the main accused. He ignored this report of the police and, therefore, chose to take action against the police officials believing as correct what was stated in the bail application of Tulsi Ram presented by Mr. Thakur, Advocate and also another application filed by Mr. Thakur for taking action against guilty police officials. He passed a specific order at 2.00 PM on 10.11.90 that SHO, PS Gokal Puri and incharge of PP Khajoori Khas appear before him at 3.00 PM on that date and it was in their presence that the evidence was recorded by him. So the information on the basis of which the learned Magistrate proceeded was from a source independent of the police.