V C SHUKLA SANJAY GANDHI Vs. STATE

JUDGEMENT

(1.) An FIR was registered against petitioners etc. about offences relating to film 'Kissa Kursi Ka', on 13.4.77. During investigations M/s Khedkar and Yadav applied for recording their confessions and Chief Metropoliton Magistrate (C.M.M.) sent these to an M.M. The latter recorded these u/s 164, Cr. PC on 3/4.6.77. Then on 14.7.77, charge sheet was was filed against petitioners before C.M.M. The same day C.M.M. granted pardon to M/S Khedkar and Yadav u/s 306, Cr PC. C.M.M. also ordered that charge-sheet be registered and accused be summoned for 5.8.77. Petitioners challenged this order on the ground that S. 204, Cr PC applied to initiation of proceedings on police report u/s 190(1) (b)as much it applies to complaint u/s 190(1) (a); that C.M.M. had no material for forming opinion and he had only police allegations: that C. M. M. acted mechanically on the allegations without applying his mind; that order about issue of process u/s 204 Cr PC is not a speaking order; that by tendering pardon to Khedkar & Yadav, C.M M. had become a witness and was incompetent to issue process.

(2.) The heading of chapter XIV, Cr. P.C. in which section 190 occurs is 'CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS'. Thus, the Magistrate takes cognizance of the offence upon a police report as prescribed under sub-section (2) of 173 Cr. P.C. At that stage, the police report is as contemplated by section 173(2). It need not be accompanied by such documents as are mentioned in section 173 (5). It is merely on a police report as contemplated by Section 173 (2) that the Magistrate taking cognizance of an offence, in the absence of the accused, summons him or issues a warrant depending on (he nature of the case, if in the opinion of the Magistrate there is sufficient ground for proceeding. It is true that if cognizance is taken u/s 190(l)(a) upon receiving a complaint, then proceedings have to be held in accordance with Chapter XV of the Code, but even incases of complaint, if the complaint is made by a public servant acting or purporting to act in the discharge of his officing duties or if the court has made a complaint, the Magistrate need not go through the provisions of Section 200 and 202 Cr. PC.

(3.) Again, where cognizence of the offence is taken on the basis of a complaint, the Magistrate can, if there is no sufficient ground for proceeding, dismiss the complaint, and he is explicitly required to briefly record his reasons for doing so. But if, in the opinion of the Magistrate taking cognizance of an offence, whether on the basis of a complaint or a police report, there is sufficient ground for proceeding, as he is not required by the Code to record any reasons for summoning the accused.