STATE OF RAJASTHAN Vs. ALARAM

JUDGEMENT

(1.) THIS is a reference made by the learned Additional Sessions Judge No. 2, Jodhpur, with a recommendation for setting aside the order of the learned Munsiff Magistrate, Jodhpur District, Jodhpur, dated 4th July, 1972 and for directing him to comply with the order passed by his predecessor -in -office (i.e. the Additional Sessions Judge No; 2 Jodhpur) on 17th February, 1972, without taking into consideration the statement of Mst. Hira which she had given in some other case.

(2.) THE relevant facts giving rise to this reference may be briefly stated as follows. One Khinva Ram son of Salu Ram Jat, resident of Parasla lodged a first information report with the police at police station, Osian, on 18th April, 1971, that the non -petitioner Ala Ram had robbed his wife Mst. Hira of her silver ornaments, i.e. a pair of silver 'Karis', a pair of silver 'Karas', one silver 'Hansali', a pair of 'Karas' worn on hands and one 'Bor', of the value of Rs. 650/ -. The incident of robbery was alleged to have takea place on Cnet Sudi 2 Smt. year 2028. On the basis of this report the Station House Officer, Osian, registered a criminal case under Section 392, IPC and conducted the usual investigation. After completing the investigation, the Station House Officer submitted a charge sheet for the offence of robbery against the non -petitioner in the court of Munsiff -Magistrate, Jodhpur District, Jodhpur, who, after going through the relevant record, refused to take cognizance of the case: vide his order dated 26th August, 1971, and cancelled the bail bonds of the non -petitioner. Aggrieved by this order the State filed an application in revision in the court of Sessions Judge, Jodhpur, from where the case was transferred for disposal to the court of learned Additional Sessions Judge No. 2, Jodhpur. The learned Additional Sessions Judge vide her order dated 17tb February, 1972, accepted the revision -petition and sent the case back to the learned Magistrate for further inquiry in accordance with law. The learned Munsiff Magistrate, however, again refused to take cognizance of the case: vide order dated 4th July, 1972 because in his opinion no case of robbery was made out against the non -petitioner. For arriving at the above conclusion he relied upon a certified copy of the statement of Mst. Hira, which was alleged to have been given by her in the court of the Munsiff Magistrate, Jodhpur District, Jodhour, in some other case (Padma v. Koja, Criminal Case No. 172 of 1971) pending in his court. Against this order of the learned Magistrate the State went in revision and the learned Additional Sessions Judge, Jodhpur, heard the revision petition and came to a conclusion that the learned Magistrate committed a grave error in taking into consideration the certified copy of the statement of Mst. Hira, which she had given out in some other case (as stated above) relating to this incident and that he should have complied with the previous order of that court directing further inquiry into the case. He, therefore, has reported the matter for the orders of the High Court with a recommendation that the order passed by the learned Magistrate on 4th July, 1972, be set aside.

(3.) THE next question that arises for consideration is whether the kerned Magistrate was bound to take cognizance of an offence upon a report in writing made by the police officer in this case. It is contended on behalf of the non - petitioner that the expression 'may take cognizance of any offence' used in Sub -section (1) of Section 190, Cr. P.C. clearly indicates that it is not imperative on a Magistrate to take cognizance of an offence even if there is no material before him to show that an offence has been committed by a person and that the Magistrate is bound to take cognizance only when a report in writirg made by any police officer discloses an offence committed by a certain person. In support of the above contention reliance has been placed on a decision of the Supreme Court in Gopal Das v. State of Assam AIR 1961 SC 986, wherein their Lordships were pleased to make the following observations in this regards: We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 193 to mean 'must'. The reason is obvious. A complaint disclosing cognizance offences may well justify a Magistrate in sending the complaint. Under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XV of the Code. The learned Additional Sessions Judge has made an attempt to distinguish this authority of the Supreme Court on the ground that it relates to a case where the Magistrate did not take cognizance of the offences mentioned in the complaint to be sent to the police for investigation. Of course the facts before their Lordbhips of the Supreme Court were that that the Additional District Magistrate without taking cognizance of any offence staled in the complaint sent it under Section 156(3), Cr. P.C. to the police for investigation, but while interpreting the word 'may' used in Section 190, Cr. P.C. their Lordships clearly observed that the word 'may' in Section 190, cannot be construed to mean 'must'. These observations equally apply to cases instituted otherwise than upon a complaint. It is, therefore, essential under Section 190(1)(b) that a report in writing made by any police officer must contain a statement of facts which constitute an offence. If the report made by the police officer in writing does not disclose the facts constituting the offence or offences, any cognizance by the Magistrate on such a report is illegal. Likewise the Magistrate is empowered to take cognizance of any offence under Clause (c) of Sub -section (1) of Section 190. Cr P.C. only if he receives an information from any person other than a police officer or if he acts upon his own knowledge or suspicion that such offence has been committed. Reliance in support of my above view may be placed on the following authorities: Badamilal v. The State AIR 1955 Bhopal 20, In re Shivlingappa Bhagappa AIR 1930 Bom 372 and Sonia v. The State 1952 RLW 297. Thus the position of law that emerges is that if the report of the police contains a statement of facts which constitute an offence a Magistrate under Section 190, Cr. P.C. a Magistrate is not justified in refusing to take cognizance of such offence, unless cognizance is barred by any provisions of law. If, on the other hand, the report fails to comply with either of the provisions of Section 173(1)(a) or Section 190(1)(b), Cr P. C and does not prima -facie show that an offence has been committed by a person, the Magistrate is not empowered to take cognizance on such police report.