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2012 Supreme(Pat) 1020
ANJANA PRAKASH, J.
(8.8.2012)
Cri. W.J,C. No. 1043 of 2011
Jai Prakash Singh : Petitioners
Vs.
The State of Bihar & Ors. : Respondents
For the Petitioners: M/s Sanjay Kumar Verma, Bijay Bihari Sinha.
For the State : Mr. Subhas Prasad Singh.
Headnote:Code of Criminal Procedure, 1973–Section 190–Cognizance–The word "Cognizance" is used very loosely and the word by itself has no sanctity–The word has no esoteric or mystic significance–It only means to be aware, to take judicial notice–When any Magistrate has taken cognizance of any offence u/s 190(1)(a) Cr.P.C., he must not only have applied his mind to the contents of the petition, but he must have done so far the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XIV (proceeding u/s 200 and thereafter sending of for inquiry and report u/s 200) The question as to whether cognizance is taken or not, 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. The usual procedure adopted by courts in Bihar is that once a complaint is filed, if the matter is not sent for investigation under section 156(3) Cr.P.C., The complainant his witnesses are examined and thereafter if it is not dismissed under section 203 the Magistrate meantime that 'cognizance' is taken under the specified sections and summons are issued to the mentioned accused. Magistrate takes cognizance on the date he has decided to proceed as provided under Section 200 Cr.P.C.
AIR 1961 Cal. 560–Ref to.
AIR 1951 SC 207, AIR 1976 SC 1672–Relied upon.
Code of Criminal Procedure, 1973–Sections 190 and 197–"Cognizance"–Complaint against judicial officer–Discretion of Magistrate–Post mortem examination of complainant and his witnesses–Section 190 Cr.P.C. does not make it mandatory to take cognizance. Hence, the scheme of the code not only vest in a Magistrate certain process but also abrogates them, in certain conditions–The most glaring prohibition is that a Magistrate has no inherent power to take cognizance and he can not ignore the provisions and proceed mechanically to examine the complainant irrespective of the restrictions as soon as complaint is filed before him–In the present case the Magistrate merely noticed the presence of the complaint and posted the complaint for further proceeding not specifying that it was being posted for examination of the complainant. The order does not demonstrate a judicial act to determine whether there is prima facie ground for proceeding in the matter–On the next date he heard the complainant on the question of maintainability because a high judicial officer of the rank of Sessions Judge had been arranged a prime accused. Since the Magistrate had not proceeded to evaluate the guilt or otherwise of the accused which is the first step precondition for trial, the Magistrate had not taken cognizance. Hence, the Magistrate rightly postponed the issue of examination of the complainant. (Paras 22, 24, 31, 33 & 36)
AIR 1964 SC; 541 Relied, Bijee Punesho Thaman Vs. State of Kerala, Cr. Rev. Petition No. 1255 of 2008) (2005) 7 Sec. 467.
Code of Criminal Procedure, 1973–Sections 190, 200–Chapters XV and XVI–Cognizance–Power of Magistrate to take cognizance procedure for dealing with complaints. (Paras 24 to 26 and 31 to 33)
Administration of Justice–Procedural law expect strict compliance more so, if there are express limitation. Every judicial order no matter how innocuous to a non discerning eye is an act of responsibility derived from the office held a judicial officer is not only expected to be conscious of his powers but also of his limitations. The established twin principles of law that jurisdiction cannot be assumed by an Authority nor does one have a vested right in procedure have to be always kept in mind. (Para 33)
Constitution of India–Articles 226 of 227 read with Section 482 of Code of Criminal Procedure, 1973–Quashing–Prosecution of Senior judicial officer without sanction–Facts stated in the complaint are merely the grievance of the petitioner against a Senior Judicial Officer, who had expressed his anguish over his conduct, in causing delay in examination of witness which was published as a news in a newspaper–Evidently the intimation of the Court was not to scandalize or defame him but to sensitize him to consider conducting himself more responsible so that justice would not suffer at the judicial system completely exonerates him that his remarks were intended to malign the complainant–No offence, whatsoever is made out in the facts of the case–Proceeding set-aside. (Paras 39 & 41)
AIR 1998 SC 128, AIR 1992 SC 604–Relied upon.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - [8000344350020] - [8000344350021] - [8000344350032] - [8000344350033] - [8000344350034] - [8000344350035] - [8000344350038] - [8000344350040]
What is the meaning of "cognizance" under Section 190 Cr.P.C. and when does a Magistrate take cognizance?
What is the proper procedure for handling a Complaint under Chapters XV and XVI of Cr.P.C. and when may a Magistrate postpone examination or order investigation under Section 156(3)?
Can a Magistrate proceed with cognizance or quash a complaint when it involves a Senior Judicial Officer and what sanctions or legal bars apply under Section 197 Cr.P.C. and Articles 226/227/482?
The present writ application has been filed under Articles 226 and 227 of the Constitution of India for declaration that the procedure adopted by the Chief Judicial Magistrate, Patna, in dealing with Complaint Case No.1838-C of 2011 was illegal and thus, the order dated 27.07.2011 is fit to be set aside.
2. The Petitioner has sought the following reliefs:–
(i) Learned Chief Judicial Magistrate, Patna, be commanded to proceed under the provision of Chapter XV or XVI of the Criminal Procedure Code in view of the order dated 12.07.2011 by which the learned Magistrate applied his mind on the complaint petition filed by the Complainant-Petitioner and put the matter for further proceeding as per prescribed procedure of the Code.
(ii) Learned Chief Judicial Magistrate, Patna, be commanded to proceed with the complaint case as per the normal rules and prescribed procedure defined under Chapter XV and XVI of the Code of Criminal Procedure.
(iii) Learned Magistrate be restrained from passing any order on the point of maintainability of the complaint petition as the case was never put for hearing on the point of maintainability rather it talks about further proceeding in the matter and not otherwise.
(iv) Learned Chief Judicial Magistrate, Patna, be directed to proceed with the examination and the enquiry of the case in a well defined manner as prescribed in the Code without being prejudiced by the position and status of the accused person/persons.
(v) Learned Chief Judicial Magistrate, Patna, be directed to follow the procedure as laid down in Criminal Procedure Code in dealing with such complaint so as to give it the logical conclusion.
(vi) Any other relief/reliefs be granted to the Petitioner to which he is legally entitled to.
3. To be able to appreciate the legal issues involved it would be essential to place in some detail the contents of the written complaint filed in the Court below. The Complainant submitted that he had a long standing experience at the Bar of 32 years and had got various distinctions in his profession. He had been elected President and General Secretary of the District Bar Association, Patna, as well as Member of the Bihar State Bar Council and had been an Office Bearer of various Associations. He had been also awarded by the district administration for his distinctive work.
4. He complained that on 07.03.2011, an order was passed by accused no.1, Sri Raghvendra Pratap Singh, the then Presiding Officer of Fast Track Court No.5, Patna, in Sessions Trial No.1148 of 2005 containing “callous unfounded and unwarranted imputation” against the Complainant which had been widely circulated in daily newspaper by accused nos. 2, 3, 4, 5 and 6 in connivance with Accused No.1. He alleged that Accused No.1 while occupying the post of a Judicial Officer had got it circulated in order to project the Complainant in bad light to settle personal scores with him. It was done with the sole intention to defame the Complainant and tarnish his image and lower down his reputation in the estimation of all concerned.
5. On 18.04.2011, the Complainant allegedly received a communication issued under the hand of Accused No.1 along with a copy of the order dated 07.03.2011 passed by the Additional Sessions Judge-cum-Fast Track Court No.5, Patna, in connection with Sessions Trial No.1148 of 2005 arising out of Patna City Chowk P.S. Case No.69 of 2002. The said order allegedly comprised of defamatory insinuation against the Complainant and revealed his intention towards the Complainant. After perusal of the order dated 07.03.2011, he was shocked to see the defamatory allegations that had been raised against the Complainant by the Accused No.1 while dealing with a sensational murder trial and he had allegedly travelled beyond the periphery of his jurisdiction and had not acted judicially, knowing fully well that he was acting beyond the power vested in him while acting and purporting to act in discharge of his judicial function. It was alleged tha
