MAKHAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition is directed against the order of the learned Chief Judicial Magistrate Sri Ganganagar dated 31. 3. 1986 where by the learned Magistrate registered the case against the petitioner under s. 500 IPC.

(2.) THE facts necessary to be noticed for the disposal of this petition briefly stated are that one Smt. Manju Pande, Advocate of Sri Ganganagar filed a complaint against the petitioner as also one Shri Hardeosingh Sandhu, Advocate of Jodhpur under secs. 200, 209, 211 and 500 IPC pleading inter-alia, that the petitioner Makhansingh and Shri Hardeosingh Sandhu filed a transfer application for transfer of a sessions case from the court of the then Sessions Judge, Shri R. S. Verma. It has been alleged by Smt. Pande that her husband is a Senior Lecturer in English and her father is the Superintendent Engineer (Irrigation) at Sri Ganganagar. She has been standing counsel of Government Prees and Municipal Board, Sri Ganganagar. She is a member of the Central Jail Vigilance Commit-es as also of the Legal Aid Committees. She is also a member of the District Children Court and has been appointed as a Honorary Magistrate for that Court. She has stated that in transfer application No. 846 of 1985 (Makhansingh vs. State) filed in this court, it has been alleged that Smt. Manju Pande is a much Junior Advocate than others and she has conducted very few cases so far. She has also conducted very few sessions cases. As regards the trial of that case, it has been alleged in the transfer application that she was unable to cross-examine the witnesses properly and so, actually, the Sessions Judge has acted as a defence counsel. It was further alleged in that application that Smt. Manju Pande acts as mediator of Shri R. S. Verma for settlement of illegal deals about the decisions of cases. This allegation has been made on account of certain complaints made against Shri R. S. Verma about certain sessions cases. She has complained that by these averments in the transfer petition, her prestige has been lowered down in her legal profession and, therefore, she has filed the above said complaint.

(3.) THE most important question that arises for decision in this petition is as to when it can be said that the Court has taken cognizance of the complaint. 'cognizance' has no where been defined in the Code of Criminal Procedure. S. 190 Cr. P. C. relates to the taking of cognizance of an offence by the Magistrate and it provides that 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-s. (2), may take cognizance of any offence (a) upon receiving a complaint of facts which constitute offence; (b) upon a police report of such facts; and (c) upon information received from any person other then a police officer, or upon his own knowledge that such offence has been committed. In this petition, we are only concerned with Clause (a) of s. 190 Cr. P. C. According to clause (a) of s. 190 Cr. P. C. the Magistrate is empowered to take cognizance upon receiving a complaint of facts which constitute such offence and that power of taking cognizance is subject to the provisions of Chapter XIV. Restraints on taking cognizance by the Magistrate are contained in ss. 195, 196, 197, 198 and 199 Cr. P. C. Provisions of ss. 191 to 194 Cr. P. C. have no application to the controversy raised before this Court. S. 191 Cr. P. C. relates to transfer of a case on application of the accused and it provides that when a Magistrate takes cognizance of an offence under clause (c) of sub-sec. (1) of sec. 190, the accused shall before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate, as may be specified by the C. J. M. in this behalf. S. 192 Cr. P. C. relates to making over of cases to Magistrates. Ss. 193 and 194 Cr. P. C. relates to cognizance of an offence by the court of sessions and to the trial of sessions cases by the Additional and Assistant Sessions Judge to try cases made over to them. Provisions of s. 195 to 199 Cr. P. C , of course, put certain limitations on the powers of the Court regarding taking cognizance of an offence but those factors have to be taken into consideration when the Court applies its mind for taking cognizance on the basis of allegations made in the complaint. That stage is prior to the recording of statements under ss. 200 or 202 Cr. P. C. It is true that the limitations put on the powers of the Court can be agitated even after the cognizance is taken i. e. to say that cognizance has wrongly been taken but legally speaking, the court has only to apply its mind to the contents of the complaint when it decides to take cognizance on a complaint under s. 190 (l) (a) of the Criminal Procedure Code. It is thus clear from the perusal of s. 190 (1) clause (a) read with s. 195 to 199 Cr. P. C. that a Magistrate is empowered to take cognizance of any offence upon receiving a complaint of the facts which constitutes such an offence, ft is not necessary for taking of the cognizance that the Magistrate should record the statements of the complainant and his witnesses under s. 200 or 202 Cr. P. C. S. 200 Cr. P. C. itself provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses as also by the Magistrate. Thus, it is clear that the Magistrate can examine the complainant and the witnesses present on his behalf only after he takes cognizance of the case and, therefore, examination of the complainant and his witnesses under ss. 200 and 202 Cr. P. C. is not at all essential for taking of the cognizance. THE Magistrate has only to look into the complaint to find out whether they disclose any such offence which are complained and if he is prima facie satisfied that they disclose such an offence, he can take cognizance of the case.