JUDGMENT
V.S. Aggarwal, J.
1. Smt. Chandrawli, complainant made a report asserting that, she is not owner of 67 kanals and 9 marlas of land in village Kalayat, District Kaithal. She is in possession of the same. Petitioner Rishi Pal along with Laxman Dass and Sushil Kumar Goyal got a forged and false decree passed from the Court of Subordinate Judge First Class, Kaithal. The Court was deceived. The complainant had never appeared in the Court and was falsely identified. On 8-3-1991, petitioner in connivance with the Patwari got effected the mutation on basis of the said decree. The petitioner took a tractor on the said land for taking forcible possession. The complainant asserts that she had never appeared in the Court of Subordinate Judge at Kaithal nor thumb marked any statement. In these circumstances, it was claimed that offence punishable under Sections 418/420/ 468/471/120-B of Indian Penal Code have been committed by the petitioner and others. On basis of the above said complaint, First Information Report has been registered at Police Station Kalayet, District Kaithal.
2. The petitioner seeks the quashing of the First Information Report alleging that a valid decree has been, passed in his favour. If the facts alleged by respondent No. 2 complainant are taken as correct, they disclose an offence to have been committed in the proceedings before the Subordinate Judge at Kaithal. Section 195(1)(b)(ii) of the Code of Criminal Procedure restricts the Court from taking cognizance pertaining to such an offence alleged to have been committed in respect of a document produced or given in evidence in proceeding before the Court. The Court cannot taken cognizance of the same and on this fact, it was prayed that First Information Report be quashed.
3. In the reply filed by the State, the facts have been stated again in seriatim about the alleged offences purported to have been committed by the petitioner and others. It was denied that provisions of Section 195(1) of the Code of Criminal Procedure are attracted in the facts of the case. Plea was raised that there is no ground to quash the First Information Report.
4. As is apparent from the recitation of the facts alleged by the petitioner, the sole argument advanced and pressed was that keeping in view the provisions of sub-section (1) to Section 195, the Court cannot take cognizance pertaining to the offences committed in respect of a document produced or given in evidence in proceeding in any Court and consequently the proceedings as such should be quashed. Sub-section (1) to Section 195 of the Code of Criminal Procedure reads as under:-
“195. (1) No Court shall taken cognizance-
(a) (i) of any offence punishable under Sections 172 of 188 (both inclusive) of the Indian Penal Code (45 of 1860), or,
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate:
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive) 199, 200, 205 to 211 (both inclusive) and 228 when such offence is alleged to have been committed in or in relation to, any proceedings in any Court, or
(ii) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in proceeding in any Court, or
(iii) of any criminal conspiracy to commit or attempt to commit or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or of some other Court to which that Court is subordinate.
5. This provision shows that the bar imposed pertaining to certain offences referred to under sub-section (1) to Section 195 Code of Criminal Procedure is on the Court. The Court cannot take cognizance except on the complaint in writing of the public servant concerned or other public servant to whom he is subordinate. There is no bar for initiating the said offence. Consequently the question of quashing the First Information Report will not arise.
6. Faced with this situation, learned counsel urged that Court in no event should take cognizance. In all fairness to the petitioner’s counsel, he did address the argument as to whether the Court could take cognizance or not. The said arguments were controverted by learned counsel for respondent No. 2. However, in the facts, it becomes unnecessary to go into that question. Sub-section (1) to Section 190 of Code of Criminal Procedure refers to conditions whether Magistrate can take cognizance of the offences. It reads as under:-
“190. Cognizance of offences by Magistrates (1) subject to the provision 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.”
7. In order to set this controversy at rest, as to if the Court has taken cognizance or not, the State had been called upon to file fresh reply. It was indicated that challen has since been presented in Court and the case was fixed for awaiting the orders of this Court. The obvious question that arises is as to whether it can be held that cognizance has been taken by the Court or not. The word ‘cognizance’ is defined in Wharton’s Law Lexicon, 14th Edition as” the hearing of a thing judicially”. This question has been considered by the Supreme Court on a number of occasions as to when the Court is said to have taken the cognizance. The matter is no more res integra. The same has been decided by the Supreme Court in the case of Kishun Singh v. State of Bihar, (1993) 1 JT (SC) 173: (1993 Cri LJ 1700). It was observed as under (at p 1704 of Cri LJ):-
“Even though the expression ‘take cognizance’ is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decided to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Section 200/204 of the Code (See Jamuna Singh v. Bhadai Sah (1964) 5 SCR 37 at 40-41: (1964 (2) Cri LJ 468 at pp 470-71).”
8. The same question was again considered more recently by the Supreme Court in the cases of Anil Saran v. State of Bihar, (1996) 1 Rec Cri R 43. Considering the said question in paragraph 5, the Court held:-
“5. We find no force in the contention. Though the code defines “cognizable offence” and non-cognizable offence”, the word cognizance has not been defined in the Code.,But it is now settled law that the Court takes cognizance of the offence and not the offender. As soon as, the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc. cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence. Whether the Magistrate has taken cognizance of offence on a complaint or on a police report or upon information of a person other than the police officer, depends upon further action taken pursuant thereto and the attending circumstances of the particular case including the mode in which case is sought to be dealt with or the nature of the action taken by the Magistrate. Under sub-section (1) of the Section 190 of the Code, any Magistrate may take cognizance of an offence (1) upon receiving a complaint of facts which constitute such offence, (b) upon police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed.”
9. It is “obvious from the aforesaid that taking cognizance “is a mental as, well as judicial act.” It ordinarily means that the Magistrate has come to the conclusion that there is a case and that is to be enquired into. He has to apply his mind for initiating judicial proceedings. On receiving a complaint, he may come to the conclusion that there is no ground to proceed. He is said to have taken cognizance when he applies his mind to the alleged commission of the offence with a view to decide whether he has taken judicial proceedings or not. The Code of Criminal Procedure does not prescribe any special form of taking cognizance. The word ‘cognizance’ is of indefinite import but in broad workable definition, it would be “taking notice of an offence.”
10. Reverting back to the facts of the case as mentioned above only the challan has been presented. There is no averment by the petitioner that the Judicial Magistrate had applied his mind to initiate the proceedings. At this stage, when the Judicial Magistrate is awaiting the orders of this Court, it cannot be held that he has taken cognizance of the offence. When cognizance has not been taken the petitioner as yet has no cause of action. He may approach the concerned Court as and when occasion arises.
11. For these reasons, the petition being without merits, fails and is dismissed because as yet no cognizance has been taken by the Court.