STATE OF MAHARASHTRA V/S TANAJI BAJIRAO BHOSALE AND ORS. ON 26 June, 1979

STATE OF MAHARASHTRA V/S TANAJI BAJIRAO BHOSALE AND ORS. ON 26 June, 1979

FACTS OF THE CASE

This appeal is at the instance by Counsel of petitioner impugning the order dated 31.03.1977 passed by the Additional Sessions Judge, acquitting the respondent(accused).  And also raises a question of law regarding scope of Sections 190 and 191 CrPC.  

The respondents herein are the accused in trial for a complaint filed by Jayaram Subhedar Kadam(complainant), alleging he was obstructed from going into his land by the accused from April 23, 1973.   

The charge-sheet submitted to the Judicial Magistrate First Class on January 10, 1974 by the Police, mentions that the accused between April 23, 1973 and June 12, 1973 demolished a public road that was passing by the complainant’s land and covered the portion with earth so that it became a part of respondent’s land further they put obstructions of stones on both sides to prevent persons from using the road. The charges were filed for offences punishable under Sections 447(Criminal trespass) and 341(Wrongful restraint) read with Section 34 IPC.

The Learned Magistrate taking cognizance has issued a process under the same Sections and commenced to try the case summarily. Accordingly, when the aforesaid charges were read over and explained, to which all the accused pleaded not guilty and their plea was recorded on January 16, 1975. While the evidence of the complainant was recorded on April 1, 1975.

Thereafter, on September 15, 1975 the Learned Magistrate framed a new charge against the accused under Section 431(Mischief by injury to public road, bridge, river or channel) read with Section 34 IPC. The same being triable as a warrants case the Learned Magistrate followed procedure prescribed in Section 191 CrPC. When the new charges were read to the accused, they pleaded not guilty. The statements of accused, evidence of complainant and evidence of witnesses were recorded again.

Considering the evidence, the Learned Magistrate found the accused guilty under Section 431 read with Section 34 IPC and convicted them. However, this conviction was in turn challenged by Counsel for the accused in appeal before Sessions Court. Upon which the Learned Judge has required for the conviction to be set aside through order dated 31.03.1977.   

ISSUES

Whether the cognizance of offence taken by Magistrate was under clause (a) or (b) or (c) of Sub-section (1) of Section 190 CrPC. 

ANALAYSIS

The prayer of the accused before the Sessions Court was that, although the original charge-sheet submitted was for offences under Sections 447 and 341 read with Section 34 IPC, in trial an altogether new charge was framed under Section 431 read with Section 34 IPC by the Learned Magistrate. So, the Cognizance taken by the Magistrate in respect of later charge would be under Section 190(1)(c) CrPC and that Magistrate has failed to follow the mandatory provision in Section 191 CrPC to present the accused with opportunity to say whether he should be tried or not be tried by the same Magistrate. And hence the trial was vitiated and the accused are entitled to acquittal.

On other hand the Counsel for Petitioner contended that the case was not covered under Section 190(1)(c) and so provision in Section 191 CrPC was not attracted. Further relying on Section 216 CrPC, submitted that the Court had power to alter/change charges at any time before judgement.

In this case it is of paramount importance to understand the provisions envisaged in Section 190 CrPC, where three different situations in which a Magistrate is entitled to take cognizance of any offence are mentioned.

Section 190 CrPC – Cognizance of offences by magistrate

• 190(1)(a) – upon receiving a complaint of facts which constitute such offence
• 190(1)(b) – upon a police report of such facts
• 190(1)(c) – upon information received from any person other than a police officer or upon      his own knowledge, that such offence has been committed  

It is apparent that clause (c) is attracted to cases where clauses (a) and (b) did not apply.so when a complaint filed directly to court or a charge-sheet is submitted by police it cannot be a case where the Court has taken cognizance under clause (c). Obviously, the provisions of Section 191 CrPC wee attracted only when the magistrate takes cognizance under clause (c) of sub-section 190 CrPC. 

Also, sometimes a wrong section may be quoted in the charge-sheet and the magistrate frames another charge based on the facts narrated in charge-sheet, it does not make a case fall under clause (c) of Section 190 CrPC. The Learned Magistrate is empowered to alter/change charges under Section 216 CrPC before the judgement is pronounced.

The Hon’ble High Court has found that the Learned Magistrate while framing new charge under Section 431 IPC took cognizance under clause(b) not clause (c) of sub-section 190 CrPC, as it based on the same facts alleged in the charge-sheet submitted by the police. The Learned Magistrate must have felt that the offence was suitable under Section 431 IPC and not under Sections 447 and 341 IPC.

The Court has come to conclusion that the Learned Additional Sessions Judge has fallen into error in holding that, the trial by the Learned Magistrate to be void and illegal and so acquitting the accused.

The appeal before High Court was allowed quashing the order of Sessions Court acquitting the accused.   

Cited judgements- Mehrab vs. Emperor

                                Rajaratnam Pillai vs. Emperor

                                Dedar Buksh vs. Syamapada Das Malakar    

                                Baldeo Prasad vs. Emperor

CONCLUSION

This case helped clearly understand the scope of Section 190 CrPC. Cognizance taken by Magistrate should be based on facts that constitute particular offence and not on particular section referred to in the complaint or charge-sheet. We are in complete agreement with the judgement of the High Court. 

REFERENCES

https://indiankanoon.org

https://legaldata.in

https://casemine.com

This Article is written by Abraham Dany Diana first year student of Dr. B. R Ambedkar Law College, Andhra University, Intern at Legal Vidhiya.

Admin