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GOPAL DAS SINDHI AND ORS. VS STATE OF ASSAM AND ANR. ON 20 JANUARY, 1961

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FACTS:

This is a special leave appeal against the Assam High Court’s judgement to deny the appellants’ request under section 439 of the Code of Criminal Procedure read with the Constitution’s Article 227. The appellants claimed to be occupants of the property in Holding of the Gauhati Municipal Board, which is owned by the respondents Rameshwar Lal Bazaz. The appellants and respondents Rameshwar Lal Bazaz had a disagreement over this ruling, which resulted in both criminal and civil actions. The civil lawsuit brought by the respondent Rameshwar Lal Bazaz, while The criminal lawsuit brought by the appellants. The criminal cases under S. 145 was settled on , and the appellants were awarded a Hath-chitha that set a monthly rent of Rs. 125 for the first floor of the relevant holding. The appellants had already signed a lease for the ground floor for Rs. 325 per month. Respondent Rameshwar Lal Bazaz has agreed by this compromise, to erect a building on the first floor. The combined rent for the first and ground floors was set at Rs. 450 per month. Despite the compromise, it appears that there was conflict between the appellants and the respondent Rameshwar Lal Bazaz, which led to a complaint being made against the appellants before the Additional District Magistrate under Sections 147, 323, and 484 of the Indian Penal Code. A second procedure under Section 145 of the Code of Criminal Procedure was initiated at the request of the respondent Rameshwar Lal Bazaz. The appellants demand specific performance of the agreement between them and the respondent Rameshwar Lal Bazaz and to formalise their tenancy. The respondent Rameshwar Lal Bazaz to evict the appellants. The criminal case against the appellants for a violation of S. 448 of the Indian Penal Code that they are claimed to have committed. As previously mentioned, the respondent Rameshwar Lal Bazaz complained against the appellants to the Additional District Magistrate, for alleged violations under Sections 323, 342 and 448 of the Indian Penal Code.

Upon receiving the complaint, Mr. Thomas gave the Officer In Charge of the Gauhati Police Station instructions. To register a case, conduct an investigation, and, if necessary, submit a charge sheet by August 23rd, 1957. Following an investigation, the police only presented the Additional District Magistrate with a charge sheet against the appellants under S. 448 of the Indian Penal Code on October 10, 1957.

Mr. Goswami fabricated a charge ostensibly in accordance with S. 251-A of the Criminal Procedure Code. A petition to the Additional District Magistrate for revision was denied. The Assam High Court then dismissed the appellants’ motion, which was made according to S. 439 of the Code of Criminal Procedure and Art. 227 of the Constitution.

ISSUE:

  1. That the Magistrate Mr. Thomas acted without authority when he ordered the police to open an investigation, register a case, and then, if necessary, present a charge-sheet?
  2. The charge under Section 448 was improperly framed by the Magistrate Mr. Goswami under the provisions of Section 251-A of the Criminal Procedure Code since those provisions only applied to warrant proceedings and Section 448 of the Indian Penal Code was triable as a summons case?
  3. Because the conflict was civil in nature, the case against the appellants should be dismissed?

ARGUMENTS:

RESPONDENT:

When Mr. Thomas received the complaint clearly demonstrates that he did not take cognizance of the offences mentioned in the complaint but instead forwarded it to the officer in charge of the police station in Gauhati for investigation in accordance with Section 156(3) of the Cr.P.C. Any magistrate with authority under Section 190 may order the aforementioned investigation, according to Section 156(3). In accordance with Section 190, Mr. Thomas was unquestionably a magistrate with the authority to take cognizance of an offence after receiving a complaint. Despite the fact that Sections 147, 342 and 448 were cognizable offences, he chose not to take cognizance and instead sent the case to the police for an inquiry.

The Magistrate was not required to question the complainant and the witnesses present at the time of the complaint’s filing if he had not recognised the offence based on the complaint that had been brought before him. We cannot interpret Section 190’s requirements to indicate that a Magistrate must take cognizance after receiving a complaint if such circumstances reveal the conduct of any crime. We cannot interpret the word “may” in Section 190 as “must.” The cause is clear. If a complaint reveals crimes that are punishable by law, the Magistrate may have good cause to refer the complaint to the police for an inquiry under Section 156(3). There is no justification for wasting the magistrate’s time when the police are primarily responsible for conducting investigations in situations involving cognizable offences. However, there may be times when the Magistrate decides to use his discretion and declare a crime to be a cognizable offence.

APPELLANT:

It was argued that the Magistrate was required to take cognizance of the complaint after it was filed and to proceed in accordance with Chapter XVI of the Cr.P.C. However, it is obvious that Chapter it would only apply if the Magistrate had taken cognizance of an offence on the complaint filed before him, as stated in Section 200, which requires that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and that the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses as well as by the Magistrate.

STATUTE AND CASE LAWS:

STATUTE:

Section 439 in The Code Of Criminal Procedure, 1973

Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Article 227 in The Constitution Of India 1949

Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces

Section 145 in The Code Of Criminal Procedure, 1973

Procedure where dispute concerning land or water is likely to cause breach of peace.

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression” land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute,

(4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).

(5) Nothing in this section’ shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this sub- section shall be served and published in the manner laid down in sub- section (3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of. Such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.

Section 147 in The Indian Penal Code

Punishment for rioting.—Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years,

Section 323 in The Indian Penal Code

Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 342 in The Indian Penal Code

Punishment for wrongful confinement.—Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 448 in The Indian Penal Code

Punishment for house-trespass.—Whoever commits house-tres­pass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 251 in The Code Of Criminal Procedure, 1973

Substance of accusation to be stated. When in a summons- case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.

Section 192 in The Code Of Criminal Procedure, 1973

Making over of cases to Magistrates.

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

Section 156 in The Indian Penal Code

Liability of agent of owner or occupier for whose benefit riot is committed.—Whenever a riot is committed for the benefit or on behalf of any person who is the owner or occupier of any land respecting which such riot takes place, or who claims any interest in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit therefrom, the agent or manager of such person shall be punishable with fine, if such agent or manager, having reason to believe that such riot was likely to be committed, or that the unlawful assem­bly by which such riot was committed was likely to be held, shall not use all lawful means in his power to prevent such riot or assembly from taking place and for suppressing and dispersing the same.

Section 190 in The Code Of Criminal Procedure, 1973

Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.

Section 192 in The Indian Penal Code

Fabricating false evidence.—Whoever causes any circumstance to exist or 1[makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement], intending that such circumstance, false entry or false statement may appear in evi­dence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so ap­pearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an errone­ous opinion touching any point material to the result of such proceeding, is said “to fabricate false evidence”.

Section 190 in The Indian Penal Code

Threat of injury to induce person to refrain from applying for protection to public servant.—Whoever holds out any threat of injury to any person for the purpose of inducing that person to refrain or desist from making a legal application for protection against any injury to any public servant legally empowered as such to give such protection, or to cause such protection to be given, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 200 in The Indian Penal Code

Using as true such declaration knowing it to be false.—Whoever corruptly uses or attempts to use as true any such decla­ration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. Explanation.—A declaration which is inadmissible merely upon the ground of some informality, is a declaration within the meaning of sections 199 to 200

Section 202 in The Indian Penal Code

Intentional omission to give information of offence by person bound to inform.—Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Section 448 in The Code Of Criminal Procedure, 1973

Bond required from minor. When the person required by any Court, or officer to execute a bond is a minor, such Court or offer may accept, in lieu thereof, a bond executed by a surety or sureties only.

CASE LAW:

Superintendent And Remembrancer vs Abani Kumar Banerjee on 9 May, 1950

The Calcutta High Court was asked to determine the meaning and use of the phrase “taking cognizance” for the first time in one of the instances. The High Court ruled that the term “taking cognizance” is not defined in the Code and that in order for a Magistrate to be deemed to have taken cognizance of the offence pursuant to Section 190(1)(a) of the Criminal Procedure Code, he or she must not only have given consideration to the contents of the petition but also have done so with the intention of proceeding in the manner specified in proceedings under Section 200 Cr.P.C., and then send for an investigation and report. The Court went on to say that the Magistrate cannot be deemed to have taken cognizance of the offence if, instead of acting in accordance with the aforementioned sections, he orders an investigation under Section 156(3) of the Cr.P.C. or the execution of a search warrant. The High Court further ruled that just because a complaint has been brought before him, the Magistrate is not required to take cognizance.

R. R. Chari vs State Of U.P on 28 March, 1962

The prosecution of the appellant under Sections 161 and 165 of the Indian Penal Code, 1860, was illegal for lack of jurisdiction as no sanction under Section 197 of the Criminal Procedure Code and Section 6 of the Prevention of Corruption Act was taken. The Supreme Court was hearing an appeal against the dismissal of the appellant’s revision petition against the order of the Special Magistrate refusing to quash the proceedings. On behalf of the appellant, it was contended that the date of arrest serves as the date of the magistrate’s cognizance and that the prosecution lacked jurisdiction because no sanction had been given as of that date.

The Supreme Court rejected this argument, adding that it was utterly illogical to assume that the Magistrate could only issue a warrant after taking notice of an infraction. The Gopal Marwari v. Emperor case (AIR 1943 Pat 245), which determined that the word “cognizance” is employed in the Code to denote the moment when the Magistrate first takes judicial notice of the offence, was also approved by the court. It is not the same as the start of legal action. Additionally, it is a prerequisite for the Magistrate to begin proceedings, and it was a phrase of unambiguous significance. In addition, the Supreme Court upheld the judgement rendered in Superintendent and Remembrance of Legal Affairs, West Bengal v. Abani Kumar Banerjee (Supra).

Narayandas Bhagwandas Madhavdas vs The State Of West Bengal on 7 May, 1959

It is affirmed that the Additional District Magistrate took cognizance of the offence, after the complaint had been submitted and the trial had been conducted properly.  The facts and circumstances of each case will determine when an offence is recognised as an offence. A search warrant or an arrest warrant issued only for investigative purposes did not, in and of itself, constitute taking cognizance under Section 94.  When a magistrate applied his thoughts to a procedure under Sections 200 and following Sections of Chapter XVI of the Code of Criminal Procedure or Sections 204 of Chapter XVII of the Code, cognizance was taken.  When the Additional District Magistrate considered the case with an eye towards issuing a process and sent the case to another magistrate for trial, cognizance was taken of the current case.

The facts discovered unequivocally showed that the appellant attempted to remove the relevant cash notes from India, and that attempt was equally illegal.   The High Court correctly rejected his justification that he had asked the Reserve Bank for permission to export the cash notes, and that because the permission had not been granted, he had given the notes to the customs authorities for safekeeping.

JUDGEMENT:

The court held that however, it seems obvious  that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so with the intention of proceeding in a particular way as indicated in the following provisions of this Chapter – proceeding under Section 200 and then sending it for inquiry and report under Section 202. They were upheld by this Court in R. R. Chari v. State of Uttar Pradesh (1951) SCR 312) and state that “the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation.” A magistrate cannot be said to have taken cognizance of an offence when he exercises his discretion for purposes other than acting in accordance with Chapter XVI’s various sections, such as ordering an investigation under Section 156(3) or issuing a search warrant for investigative purposes. Therefore, it will be evident that neither the Additional District Magistrate nor Mr. Thomas considered the complaint submitted on August 3, 1957, with the intention of finding an offence, in the current case. The complaint was given to Mr. Thomas by the Additional District Magistrate for his consideration. Mr. Thomas did not examine the complaint with the intention of committing any of the cognizable offences specified in it; rather, he believed that the police should investigate the situation in accordance with Section 156(3) of the Cr.P.C.

CITATION:

Written by : ESHA CHATTERJEE intern under legal vidhiya

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