Sunday, 19 April 2015

COGNIZANCE OF AN OFFENCE NOT TO BE AS A MATTER OF COURSE

MEHMOOD UI REHMAN AND ORS.  V/S KHAZIR MOHAMMAD TUNDA AND ORS. DECIDED ON 31.03.2015

Cognizance of an offence is taken by the Magistrate under Section 190 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ' Code of Criminal Procedure '). The Magistrate is empowered to take cognizance of an offence under section 190(1)(a) of Code of Criminal Procedure upon receiving a complaint of facts which constitute such offence. under section 200 of Code of Criminal Procedure, the Magistrate, taking cognizance of an offence on a complaint, shall examine upon oath the complainant and the witnesses, if any, present and the substance of such examination should be reduced to writing and the same shall be signed by the complainant, the witnesses and the Magistrate. Under Section 202 of Code of Criminal Procedure, the Magistrate, if required, is empowered to either inquire into the case himself or direct an investigation to be made by a competent person "for the purpose of deciding whether or not there is sufficient ground for proceeding". 

If, after considering the statements recorded under section 200 of Code of Criminal Procedure and the result of the inquiry or investigation under section 202 of Code of Criminal Procedure, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he should dismiss the complaint, after briefly recording the reasons for doing so. If, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, the Magistrate has to issue process under section 204(1) of Code of Criminal Procedure for attendance of the accused.

Facts

An order was passed by the Judicial Magistrate First Class, Srinagar on 03.04.2007 on a complaint filed by the first Respondent. As alleged by the Appellants, the complaint filed by the first Respondent did not constitute an offence and hence they were not liable to be called by the Magistrate to defend the criminal proceedings. Thus, aggrieved, the Appellants filed a petition to quash the proceedings initiated by the Magistrate by order dated 03.04.2007. The High Court, by the impugned order, rejected the petition holding that the veracity of allegations made in the complaint filed by the first Respondent before the Magistrate "is a question of evidence and can be settled only when the evidence is adduced". The Appellants have thus approached the Apex Court in appeal.

Issues

The main issue for consideration was the scope of the opinion of the Magistrate while issuing process to the accused. In other words, how does a Magistrate, while taking cognizance of an offence on complaint, indicate his satisfaction regarding the ground for proceeding against the accused was the moot point of discussion.

Decision of the court

·         The court while replying upon a catena of decisions concluded that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course.

·         The scope of Section 190 of the Code of Criminal Procedure was also examined by the court. It was held that under Section 190(1)(b) of Code of Criminal Procedure, the Magistrate has the advantage of a police report and under section 190(1)(c) of Code of Criminal Procedure, he has the information or knowledge of commission of an offence. But under section 190(1)(a) of Code of Criminal Procedure, he has only a complaint before him. Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under section 190(1) (a) of Code of Criminal Procedure. The complaint is simply to be rejected.

·         There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under section 202 of Code of Criminal Procedure, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under section 204 of Code of Criminal Procedure, by issuing process for appearance. Hence, a prima facie case must exist against the accused.

·         Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under sections 190 and 204 of Code of Criminal Procedure, the High Court under section 482 of Code of Criminal Procedure is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court
     
     Conclusion

Owing to the aforementioned reasoning given by the Apex Court, the order dated 03.04.2007 passed by the Judicial Magistrate First Class, Srinagar and the impugned order passed by the High Court was set aside and the matter was remitted back to the Magistrate for fresh consideration.

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