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1990 Supreme(Raj) 13

High Court Of Rajasthan
Judgename : Sobhagmal Jain
MANJEET SINGH - Appellant
Versus
STATE OF RAJASTHAN - Respondent
S. B. Criminal Appeal 118 Of 1988
Decided On : 01/10/1990

Advocates Appeared:
H.S.S.Kharaliya, SUMMITRA SHANKHALA

Headnote:Criminal Procedure Code, 1973 – Section 482-Indian Penal Code, 1860-Sections 147, 447, 427 and 504 - Five accused persons challaned by police under - Magistrate, by order dt. 20-1-1987, directed the case be registered and copies of challan supplied, to accused Protest petition by complainant for taking cognizance against non - petitioners – Order dated 20-1-1987 showed that magistrate had not applied his mind whether cognizance be taken against non-petitioners - Protest petition of complainant taken up on adjourned date and cognizance taken against non-petitioners - Whether magistrate's order was in excess of the powers vested in him. (No.). (Paras 5 & 6).

       Result: Petition allowed. Order of Additional Sessions Judge quashing the order of magistrate by which congnizance was taken against non-petitioners set aside.

       

Judgment


SOBHAGMAL JAIN, J.

( 1 ) THIS petition under section 482, Cr. P. C. is directed against the order Dated Feb. 18, 1988, of the Additional Sessions Judge No. 1, Hanumangarh, quashing the order of the Munsif and Judicial Magistrate, First class, Hanumangarh, dated March 24,1987, whereby the learned Judicial Magistrate had taken cognizance of the offence under sections 147, 447, 427 and 504 I. P. C. against the non-petitioners Nos. 2 to 6.

( 2 ) THE learned Additional Sessions Judge has quashed the order of the learned Magistrate on the ground that cognizance having been taken by the Magistrate-against the accused challaned by the police, it was not open to him, subsequently, to take cognizance against other accused. The learned Additional Sessions Judge has held that the cognizance taken by the learned Magistrate on March 24, 1987, was not legally permissible. The Additional Sessions Judge has in this connection relied on a Judgment of this Court in Bagh Singh v. State.

( 3 ) IN my opinion, Bagh Singhs case (supra) is not applicable to the present case. More appropriately the case will be governed by Hareram Satpathy v. Tikaram Agarwala and others, decided by the Supreme Court and Udai Singh v. State, decided by this Court.

( 4 ) IN Bagh Singhs case, there was no protest petition having been filed by the complainant and cognizance against the accused challaned by the police had been taken after application of mind to the entire case. In Udai Singhs case (supra), this Court has said: 9 It may be stated that taking cognizance means nothing more than taking judicial notice of the offence. It does not involve any formal notion or needed section of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. It is also very well settled that taking cognizance means cognizance of offence and not offenders. Once the Magistrate takes cognizance of an offence, it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police, some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceedings initiated by his taking cognizance of an offence. The view taken in Udai Singhs case (supra) finds full support from the observations of the Supreme Court in Hareram Satpathy v. Tikaram Agarwal. In Harerams case the facts in short were that in the report made to the police, several persons were named as accused. On completion of investigation the police filed a charge-sheet against some of the accused and gave final against others. The complainant in that case filed a complaint reiterating allegations against these accused also against whom the police had given a final report. The Magistrate after going through the statements recorded under section 161 Cr. P. C. directed issuance of process against these left out accused also. A learned Single Judge of the High Court quashed the process. On appeal, by Special have, the Supreme Court, after referring to the earlier judgments in Raghubans Dubey v. State of Bihar and Smt. Nagawwa v. Veeranna Shivlingappa5 and Chandradeo Singh v. Prokar Chandra Bose, held7. From the foregoing it is crystal clear that under Section 190 of the Code of Criminal Procedure the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence. 8 In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not in our Judgm






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