MEHMOOD
UI REHMAN AND ORS. V/S KHAZIR MOHAMMAD
TUNDA AND ORS. DECIDED ON 31.03.2015
UI REHMAN AND ORS. V/S KHAZIR MOHAMMAD
TUNDA AND ORS. DECIDED ON 31.03.2015
Cognizance of an
offence is taken by the Magistrate under Section 190 of The Code of Criminal Procedure, 1973 (hereinafter referred
to as ‘ Code of Criminal Procedure ‘). The Magistrate is empowered to take
cognizance of an offence under section 190(1)(a) of Code of Criminal Procedure upon receiving a complaint of
facts which constitute such offence. under section 200 of Code of Criminal Procedure, the Magistrate, taking
cognizance of an offence on a complaint, shall examine upon oath the
complainant and the witnesses, if any, present and the substance of such
examination should be reduced to writing and the same shall be signed by the
complainant, the witnesses and the Magistrate. Under Section 202 of Code of Criminal Procedure, the Magistrate, if required,
is empowered to either inquire into the case himself or direct an investigation
to be made by a competent person “for the purpose of deciding whether or
not there is sufficient ground for proceeding”.
offence is taken by the Magistrate under Section 190 of The Code of Criminal Procedure, 1973 (hereinafter referred
to as ‘ Code of Criminal Procedure ‘). The Magistrate is empowered to take
cognizance of an offence under section 190(1)(a) of Code of Criminal Procedure upon receiving a complaint of
facts which constitute such offence. under section 200 of Code of Criminal Procedure, the Magistrate, taking
cognizance of an offence on a complaint, shall examine upon oath the
complainant and the witnesses, if any, present and the substance of such
examination should be reduced to writing and the same shall be signed by the
complainant, the witnesses and the Magistrate. Under Section 202 of Code of Criminal Procedure, the Magistrate, if required,
is empowered to either inquire into the case himself or direct an investigation
to be made by a competent person “for the purpose of deciding whether or
not there is sufficient ground for proceeding”.
If, after considering the
statements recorded under section 200 of Code of Criminal Procedure and the result of the inquiry
or investigation under section 202 of Code of Criminal Procedure, the Magistrate is of the
opinion that there is no sufficient ground for proceeding, he should dismiss
the complaint, after briefly recording the reasons for doing so. If, in the
opinion of the Magistrate taking cognizance of an offence, there is sufficient
ground for proceeding, the Magistrate has to issue process under section 204(1) of Code of Criminal Procedure for attendance of the accused.
statements recorded under section 200 of Code of Criminal Procedure and the result of the inquiry
or investigation under section 202 of Code of Criminal Procedure, the Magistrate is of the
opinion that there is no sufficient ground for proceeding, he should dismiss
the complaint, after briefly recording the reasons for doing so. If, in the
opinion of the Magistrate taking cognizance of an offence, there is sufficient
ground for proceeding, the Magistrate has to issue process under section 204(1) of Code of Criminal Procedure for attendance of the accused.
Facts
An order
was passed by the Judicial Magistrate First Class, Srinagar on 03.04.2007 on a
complaint filed by the first Respondent. As alleged by the Appellants, the
complaint filed by the first Respondent did not constitute an offence and hence
they were not liable to be called by the Magistrate to defend the criminal
proceedings. Thus, aggrieved, the Appellants filed a petition to quash the
proceedings initiated by the Magistrate by order dated 03.04.2007. The High
Court, by the impugned order, rejected the petition holding that the veracity
of allegations made in the complaint filed by the first Respondent before the
Magistrate “is a question of evidence and can be settled only when the
evidence is adduced”. The Appellants have thus approached the Apex Court
in appeal.
was passed by the Judicial Magistrate First Class, Srinagar on 03.04.2007 on a
complaint filed by the first Respondent. As alleged by the Appellants, the
complaint filed by the first Respondent did not constitute an offence and hence
they were not liable to be called by the Magistrate to defend the criminal
proceedings. Thus, aggrieved, the Appellants filed a petition to quash the
proceedings initiated by the Magistrate by order dated 03.04.2007. The High
Court, by the impugned order, rejected the petition holding that the veracity
of allegations made in the complaint filed by the first Respondent before the
Magistrate “is a question of evidence and can be settled only when the
evidence is adduced”. The Appellants have thus approached the Apex Court
in appeal.
Issues
The main issue for consideration was
the scope of the opinion of the Magistrate while issuing process to the
accused. In other words, how does a
Magistrate, while taking cognizance of an offence on complaint, indicate his
satisfaction regarding the ground for proceeding against the accused was the
moot point of discussion.
the scope of the opinion of the Magistrate while issuing process to the
accused. In other words, how does a
Magistrate, while taking cognizance of an offence on complaint, indicate his
satisfaction regarding the ground for proceeding against the accused was the
moot point of discussion.
Decision
of the court
of the court
·
The
court while replying upon a catena of decisions concluded that cognizance of an offence on complaint is
taken for the purpose of issuing process to the accused. Since it is a process
of taking judicial notice of certain facts which constitute an offence, there
has to be application of mind as to whether the allegations in the complaint,
when considered along with the statements recorded or the inquiry conducted
thereon would constitute violation of law so as to call a person to appear
before the criminal court. It is not a mechanical process or matter of course.
The
court while replying upon a catena of decisions concluded that cognizance of an offence on complaint is
taken for the purpose of issuing process to the accused. Since it is a process
of taking judicial notice of certain facts which constitute an offence, there
has to be application of mind as to whether the allegations in the complaint,
when considered along with the statements recorded or the inquiry conducted
thereon would constitute violation of law so as to call a person to appear
before the criminal court. It is not a mechanical process or matter of course.
·
The
scope of Section 190 of the Code of Criminal Procedure was also examined by the
court. It was held that under Section 190(1)(b) of Code of Criminal Procedure, the Magistrate has the
advantage of a police report and under section 190(1)(c) of Code of Criminal Procedure, he has the information or
knowledge of commission of an offence. But under section 190(1)(a) of Code of Criminal Procedure, he has only a complaint before
him. Therefore, if the complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall not take cognizance under
section 190(1) (a) of Code of Criminal Procedure. The complaint is simply to be
rejected.
The
scope of Section 190 of the Code of Criminal Procedure was also examined by the
court. It was held that under Section 190(1)(b) of Code of Criminal Procedure, the Magistrate has the
advantage of a police report and under section 190(1)(c) of Code of Criminal Procedure, he has the information or
knowledge of commission of an offence. But under section 190(1)(a) of Code of Criminal Procedure, he has only a complaint before
him. Therefore, if the complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall not take cognizance under
section 190(1) (a) of Code of Criminal Procedure. The complaint is simply to be
rejected.
·
There must be sufficient indication in the order passed by
the Magistrate that he is satisfied that the allegations in the complaint
constitute an offence and when considered along with the statements recorded
and the result of inquiry or report of investigation under section 202 of Code of Criminal Procedure, if any, the accused is
answerable before the criminal court, there is ground for proceeding against
the accused under section 204 of Code of Criminal Procedure, by issuing process for
appearance. Hence, a prima facie case must exist against the accused.
There must be sufficient indication in the order passed by
the Magistrate that he is satisfied that the allegations in the complaint
constitute an offence and when considered along with the statements recorded
and the result of inquiry or report of investigation under section 202 of Code of Criminal Procedure, if any, the accused is
answerable before the criminal court, there is ground for proceeding against
the accused under section 204 of Code of Criminal Procedure, by issuing process for
appearance. Hence, a prima facie case must exist against the accused.
·
Application of mind is best demonstrated by disclosure of
mind on the satisfaction. If there is no such indication in a case where the
Magistrate proceeds under sections 190 and 204 of Code of Criminal Procedure, the High Court under section 482 of Code of Criminal Procedure is bound to invoke its inherent
power in order to prevent abuse of the power of the criminal court
Application of mind is best demonstrated by disclosure of
mind on the satisfaction. If there is no such indication in a case where the
Magistrate proceeds under sections 190 and 204 of Code of Criminal Procedure, the High Court under section 482 of Code of Criminal Procedure is bound to invoke its inherent
power in order to prevent abuse of the power of the criminal court
Conclusion
Owing to the aforementioned reasoning given by the
Apex Court, the order dated
03.04.2007 passed by the Judicial Magistrate First Class, Srinagar and the
impugned order passed by the High Court was set aside and the matter was
remitted back to the Magistrate for fresh consideration.
