IMPORTANT POINT
Magistrate is not empowered to take into consideration the affidavits of witnesses while taking cognizance of an offence.

Headnote:(i) Criminal Procedure Code, 1973 - Section 190 - Final report submitted by police after investigation - Protest petition with affidavits by complainants – Cognizance of offences taken by Magistrate, Magistrate had no legal right to direct production of affidavit and to take them into consideration.
       Held: When a final report is submitted before a Magistrate by the Police after conducting an investigation, one of the following three courses are open to him. These are (a) he may accept the final report by declining to take cognizance of the offence and if any person is already in custody to discharge him (b) to direct further investigation under Section 156(3) Cr. P.C. and (c) to take cognizance under Clause (b) of subsection (1) of Section 190 Cr. P.C. In case the Magistrate adopts the third course and take cognizance of an offence under clause (b) of sub - section (1) of Section 190 Cr. P.C. he has to find out who the offenders are (vide law laid down by the Hon'ble Apex Court in Raghuvansh Dubey v. State of Bihar, A.I.R. 1967 S.C. 1167. At the time of finding out who the offenders are he has to judicially consider whether there are sufficient grounds to proceed against one or more accused person under Section 204 Cr. P.C. It is well established that when cognizance of the offence is taken by the Magistrate a criminal case is instituted in his Court. Therefore, the proceedings conducted by the Magistrate after the taking of the cognizance and before the issue of process under Section 204 Cr. P.C. are in the nature of judicial proceedings amounting to inquiry prior to the issue of process against any accused. To such an inquiry the provisions of Section 311 Cr. P.C. as well as Section 165 of the Evidence Act are applicable and, therefore, after taking cognizance under Section 190 (1) (b) Cr. P.C. on the basis of the final report, if a Magistrate deems fit he may examine any witness on oath in order to find out whether there is or is not sufficient ground to proceed against any accused. (Para 10)
       (ii) Criminal Procedure Code, 1973 - Sessions 155(4) and 198 Case was registered u/ss 498-A, 447 and 323 IPC - Final report submitted by police disclosing offence only u/s 323 IPC - Protest petition - Cognizance for offence u/s 494 IPC besides offences u/ss 498. A. 458, 323 r/w 109 IPC - Police had not investigated offence u/s 494 IPC - Magistrate was not legally empowered to take cognizance of offence u/s 494 IPC.
       Held: It is true that under subsection (4) of Section 155 Cr. P.C. the Police Officer who - is empowered to conduct investigation of cognizable offence may exercise the same powers in respect of non - cognizable offence which appears to be made out and if he submits a police report in respect of both the offences, the Court would be competent to take cognizance of those offences. It is, however, necessary that the Police Officer should have exercised its power under sub - section (4) of Section 155 Cr. P.C. in respect of non - cognizable offences, while conducing the investigation in respect of cognizable offences. If the Police Officer has not exercised the powers conferred by subsection (4) of Section 155 Cr. P.C., and collected no evidence worth the name regarding non - cognizable offence, it cannot be said that the Police Officer has submitted a report in respect of the non - cognizable offence also. In the instant case the Police has not investigated the offence under Section 494 I.P.C. nor the Police has submitted any report in respect of Section 494 I.P.C. I am, therefore, of the opinion that the final report submitted, by the Police cannot be treated as the Police report for the purpose of Section 494 I.P.C. and, therefore, the learned Additional Chief Judicial Magistrate was not legally empowered to take cognizance of the offence under Section 494 I.P.C. In the absence of a complaint contemplated by Section 198 Cr. P.C. In any case neither the final report nor the documents attached to it contain any facts which may justify proceeding against any person in respect of offence under Section 494 I.P.C. (Para 12)
       (iii) Indian Penal Code, 1860 - Section 498-A - Cognizance taken on fact that accused entered into second marriage while his first marriage was subsisting - View was erroneous.
       Held: I have perused the order passed by the learned Additional Chief Judicial Magistrate. He has opined that if a person enters into a second marriage with a lady, while his first marriage with another lady is subsisting, his act would attract Section 498-A I.P.C. I am afraid, the proposition of law assumed by the learned Additional Chief Judicial Magistrate is not supported by any statute. Section 498 I.P.C. reads as below:
       "Section 498 - Enticing or taking away or detaining with criminal intent a married woman: - Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a, term which may extend to two years, or with fine, or with both."
       A bare perusal of this Section shows that in order any person may be guilty of cruelty under this Section he must be either husband or a relative of the husband. It means that the marriage must have taken place before the commission of cruelty under Section 498 - A I.P.C. The view taken by the learned Additional Chief Judicial Magistrate-was, therefore, erroneous. (Para 13)
       Result: Petition allowed.

JUDGMENT

A.K. Singh, J. - Heard the learned counsel for the petitioners, learned Public Prosecutor and the learned counsel for non - petitioner No.2.

2. This petition under Section 482 Cr. P.C. is directed against the order dated 8- 7 -1996 passed by the learned Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Bheenmal on final report No. 72/95 of Police Station Bheenmal District Jalore. By the aforesaid order the learned Additional Chief Judicial Magistrate took cognizance of the offences under Sections 458, 494. 498-A and 323 read with 109 I.P.C.

3. The learned counsel for the petitioners has submitted that in this case after conducting an investigation the Police submitted a final report showing that the offence under Section 323 I.P.C. only had been committed and the learned Additional Chief Judicial Magistrate without sufficient grounds took cognizance and proceeded against the petitioners in respect of the offences under Sections 458, 494, 498-A 323 and with 109 I.P.C. He has, therefore, prayed that the impugned order dated 8-7-1996 be quashed under Section 482 Cr. P.C.

4. The learned counsel for the non-petitioner No.2 has supported the impugned order passed by the learned Additional Chief Judicial Magistrate and submitted that if the petitioners have any grievance they can raise the objections against the taking of cognizance before the learned Additional chief Judicial Magistrate or make their submissions at the time of framing of the charge. It is further submitted by the learned counsel for the non-petitioner No.2 that the offences of which cognizance has been taken by the learned Additional Chief Judicial Magistrate are prima facie made out by the first information report, final report and the evidence collected by the prosecution and the protest petition and. therefore no illegality, irregularity or impropriety has been committed by the learned Additional Chief Judicial Magistrate. The learned Public Prosecutor has also supported the order dated 8-7-1996 passed by the learned Additional chief Judicial Magistrate, Bheenmal.

5. I have carefully considered the arguments advanced by both the parties, the reasons given by the learned Additional Chief Judicial Magistrate to take cognizance of the offence mentioned above 'and for proceeding against the 'petitioners and also perused the record of the case. The relevant facts of the case may be brief1y summarised as below:

6. Santosh D/o Narsi Ram was married to Ram Lal alias Ramaram S/o Panna Ram, resident of Salawas. After her marriage Smt. Santosh went to her husband's house, lived there for sometime and returned to her father's house. It is alleged that 8mt. Santosh was served with a notice by the first wife of Ram Lal alias Rama Ram and through that notice she came to know that her husband Ram Lal was already married before he celebrated the second marriage with her. It is alleged that Ram Lal accompanied by some persons of his family went to the house of Narsi Ram and requested him to send his daughter Smt. Santosh with him. Narsi Ram declined to send Smt. Santosh with him and asked him to get the matter settled in a Panchayat. The petitioner and his companions however wanted to take away Smt. Santosh with them. While they were inside the house of Narsi Ram struggle took place in which both the parties used force against each other. Prema Ram received injuries of gravious nature on his nose and several other injuries were received by him and the members of his party. A separate case was registered by the Police so far as the injuries of Prema Ram and his companions are concerned. In this petition the proceedings initiated by the Court relating to that report are not in question.

Narsi Ram, father of Smt. Santosh in whose house the quarrel took place lodged the first information report at Bheenmal on 7-10-1995 at 2. 15 A.M. In that report he alleged that Santosh was married to Ram Lal S/o Panna Ram about two years ago and that after her marriage

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IMPORTANT POINTMagistrate is not empowered to take into consideration the affidavits of witnesses while taking cognizance of an offence.

IMPORTANT POINT
Magistrate is not empowered to take into consideration the affidavits of witnesses while taking cognizance of an offence.