PETITIONER: DARSHAN SINGH RAM KISHAN Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT02/09/1971 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D. ROY, SUBIMAL CHANDRA CITATION: 1971 AIR 2372 1972 SCR (1) 571 1971 SCC (2) 654 ACT: Code of Criminal Procedure (Act 5 of 1898), s. 1964(2)- Charge sheet by police-No reference to or allegation of criminal conspiracy-Magistrate framing charges for offences including under s. 120-B, I.P.C.Whether prior consent under s. 196A(2), Cr.P.C., necessary. HEADNOTE: The police filed a charge-sheet against the appellant and another for various offences in connection with the fabrication of a British passport. The offences mentioned in the charge-sheet against the appellant were ss. 419/109, 468 and 471, I.P.C., and against the other accused ss. 419 and 471 read with s. 468. The Magistrate did not examine any witnesses, but after perusing the charge-sheet and other documents filed before him under s. 173, Cr.P.C., framed charges against the two accused and committed them for trial before the Sessions Court. The charges against the accused included the offence under s. 120B, I.P.C., the object of the conspiracy being, to commit the non-cognizable offence of forging the passport. The appellant filed an application in the High Court for quashing the committal order on the ground that no consent, as required by s. 196A(2), Cr.P.C., having been obtained, the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy. The High Court dismissed the application. Dismissing the appeal to this Court, HELD : (1) Cognizance takes place when the Magistrate takes judicial notice of an offence. Therefore, when a Magistrate takes cognizance of an offence under s. 190, Cr.P.C. upon a police report, prima facie he does so of the offences alleged in the report. [573 H; 574 A] In the present case the charge-sheet did not refer to or charge either of the accused with criminal conspiracy. The cognizance which the Magistrate took was therefore, only, of the offences alleged in the chargesheet, and it was only at the later stage of passing the committal order that he considered that a charge under s. 120B was more appropriate than that of abetment. [574 F-H] (2) Even on the basis that it is not the sections referred to in the charge-sheet that matter, but the offence prima facie disclosed by the allegations, in the present case the offence 'primarily and essentially disclosed in the charge- sheet and other documents was one of abetment of forgery and of the false impersonation. [575 F-H] Therefore, the Magistrate did not take cognizance of the offence under s. 120B, I.P.C., and hence, consent under s. 196A(2) Cr.P.C., was not a condition precedent. [576 B-C] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 100 of
1969.
572
Appeal by special leave from the judgment and order dated
January 8, 1969 of the Bombay High Court in Criminal
Application No. 1341 of 1968.
C. L. Sareen and J. C. Talwar, for the appellant.
P. K. Chatterjee and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. The appellant and one Bakshi Singh Sunder Singh
were accused No. 2 and accused No. 1 respectively in the
committal proceedings before the Presidency Magistrate, 28th
Court, Greater Bombay. This appeal, by special leave, is
directed against the judgment of the High Court of Bombay
refusing to quash the order of committal passed by the
learned Magistrate.
The facts relevant to this appeal are few and may first be
stated.
On October 31, 1963, one Jivansingh Uttam Singh obtained a
British passport bearing No. 183459 at Nairobi. On the
strength of that passport he was returning to India with his
family. On his way he died on board the ship. According to
the prosecution that passport came into the hands of the
appellant. Bakshi Singh desired to go to the United
Kingdom, but had no passport. The appellant agreed to
arrange his journey and also for that purpose to obtain a
passport for him.
The allegation was that the appellant prepared an applica-
tion for a visa in the name of Bakshi Singh. It was further
alleged that with a view to procure the said visa the
photograph of the said deceased Jivansingh was removed from
the said passport and that of Bakshi Singh substituted. The
visa having in this fashion been obtained, Bakshi Singh
journeyed to the United Kingdom having on his way made some
intermediate halts. The British authorities suspected that
the, passport was a forged document and repatriated Bakshi
Singh to India. On his arrival he was handed over to the
Special Police, Bombay.
The Special Police carried out investigation in the course
of which they recorded statements of certain witnesses
including that of Tanna Singh, the younger brother of Bakshi
Singh. On completion of the investigation, the police filed
a charge-sheet before the learned Magistrate. That charge-
sheet is not before us. But counsel for the appellant
informed us that Bakshi Singh was therein charged under
secs. 419 and 471 read with sec. 468, and the appellant
was charged under secs. 419/109, 468 and 471 of the Penal
Code. Counsel also. informed us- that the Magistrate did
not examine any witnesses, during the committal
573
proceedings but on a perusal of the charge-sheet and the
documents filed before him under sec. 173 of the Code of
Criminal Procedure he framed the charges and committed, by
his order dated September 13, 1968, Bakshi Singh and the
appellant for trial before the Sessions Court. By that
order he directed the said Bakshi Singh to stand his trial
under secs. 120B, 419, 467 and 471 read with sec. 467, and
the appellant under secs. 120B and 467 of the Penal Code.
The offence of criminal conspiracy charged under sec. 120B
was that the said Bakshi Singh and the appellant had
conspired to forge the said passport for the use of the said
Bakshi Singh.
In the High Court various contentions were raised on behalf
of the appellant in support of his application under sec.
561A of the Code of Criminal Procedure including that under
sec. 196A (2). That contention was that no consent as
required by sec. 196A(2) having been first obtained, the
Magistrate had no jurisdiction to take cognizance of the
offence of conspiracy, and therefore, the committal order
was without jurisdiction and had to be quashed. In this
appeal we are concerned only with that contention as the
special leave ranted to the appellant has been limited to
that ground alone.
Sub-sec. 2 of sec. 196A, which is relevant to the present
case, provides that no court shall take cognizance of the
offence of criminal conspiracy punishable under sec. 120B of
the Penal Code in a case’ inter alia where the object of
such conspiracy is to commit any non-cognizable offence.
There is no doubt that the charge, as framed by the
Magistrate and for which he committed the appellant and
Bakshi Singh to stand their trial before the Sessions Court,
was for criminal conspiracy, the object of which was to
forge the said passport, a non-cognizable offence. In
respect of that offence, sec. 196A(2) would undoubtedly
apply. What that section prohibits is taking cognizance of
an offence of criminal conspiracy unless consent to the
initiation of proceedings against the person charged with it
has been first obtained.
As provided by sec. 190 of the Code of Criminal Procedure, a
Magistrate may take cognizance of an offence either (a) upon
receiving a complaint, or (b) upon a police report, or (c)
upon information received from a person other than a police
officer or even upon his own information or suspicion that
such an offence has been committed. As has often been held
taking cognizance does not involve any formal action or
indeed action of any kind but occurs as soon as a Magistrate
applies his mind to the suspected commission of an offence.
Cognizance, therefore, takes place at a point when a
magistrate first takes judicial notice of an offence. This
is the position whether the magistrate takes
574
cognizance of an offence on a complaint or on a police
report, or upon information of a person other than a police
officer. Therefore, when a magistrate takes cognizance of
an offence upon a police report, prima facie he does so of
the offence or offences disclosed in such report.
It is not in dispute that the charge-sheet submitted by the
police officer for the purpose of initiation of proceedings
by the magistrate was for offences under sees. 419 and 471
read with sec. 468 against Bakshi Singh and under sees.
419/109, 471 and 468 against the appellant. The charge-
sheet admittedly did not refer to or charge either of them
with criminal conspiracy under sec. 120B. Prima facie it is
not possible to say that at the stage when the police filed
the charge-sheet the Magistrate took cognizance of the
offence, under sec. 120B, for, that was not the offence alleg
ed in the charge-sheet to have been committed by
either of the two accused persons.
True it is that the Magistrate ultimately drew up charges
which included the offence under sec. 120B, the object of
which was to forge the passport, an offence under sec. 467.
The Magistrate also did not consider it necessary to examine
any witnesses and frame the charges on a perusal of the
charge-sheet submitted to him by the police, the statement
of witnesses recorded by the police during their
investigation and such other documents as were filed under
sec. 173 of the Code of Criminal Procedure &,fore him. The
materials before him, therefore, were the same as were
before the police officer who had filed the charge-sheet.
But while drawing up the charges and passing his order of
committal, the Magistrate considered that though the
charge-sheet filed before him alleged the commission of
offences under secs. 419/109, 471 and 468, the proper charge
on the materials before him, although they were the same as
before the police officer, warranted a charge of criminal
conspiracy for forging a passport. It is quite clear,
however, that the cognizance which he took was of the
offences alleged in the charge-sheet because it was in
respect of those offences that the police had applied to him
to initiate proceedings against Bakshi Singh and the
appellant and not for the offence under sec. 120B. It was
at a later stage, i.e., at the time of passing the committal
order that he considered that a charge under sec. 120B was
the more appropriate charge and not a charge under sec. 109
of the Penal Code. That being so, it must be held that the
Magistrate took cognizance of the offence of abetment of an
offence of forgery and impersonation so far as the appellant
was concerned and not of the offence of criminal conspiracy,
and therefore, sec. 196A(2) did not apply.
Counsel in this connection relied on certain observations
made in a minority judgment of S. K. Das, J., in Pramatha
Nath
575
Taluqdar v. Saroj Ranjan Sarkar. (1) The question involved
there was, whether a second complaint could be entertained
by a magistrate who or whose predecessor had on the same or
similar allegations dismissed a previous complaint, and if
so, in what circumstances should such a complaint be
entertained. Arising-. out of this question a contention
was raised whether on the complaint, as it was framed, the
Magistrate had the jurisdiction to, take cognizance of the
offences alleged in the complaint in the, absence of a
sanction under sec. 196A. The second complaint alleged
offences under secs. 467 and 471 read with sec. 109 of the
Penal Code. But in para 5 thereof, there was an allegation
as to criminal conspiracy and it was on the basis of that
allegation that sec. 196A(2) was sought to be involved. It
was in this connection that the learned Judge at page 315 of
the report, observed :
“It would not be proper to decide the,
question of sanction me-rely by taking into
consideration the offences mentioned in the
heading or the use of the expression ”
criminal conspiracy” in para, 5. The proper
test should’ be whether the allegations made
in the petition of complaint disclosed
primarily and essentially an offence or
offences for which a consent in writing would
be necessary to the initiation of the
proceedings within the meaning of s. 196A(2)
of the Code of Criminal Procedure. It is
from that point of view that the petition of
‘complaint must be examined.”
The learned Judge ultimately held that though the offence of
criminal conspiracy was alluded to in para 5 of thesaid
complaint, the offence “primarily and essentially” chargedwas
abetment by conspiracy under sec. 109 of the Penal Code, and
therefore. no consent under sec. 196A(2) was required.In
Biroo Sardar v. Ariff (2) the view also taken was that
itis not the, sections referred to which matter but the
offence prima facie disclosed. Following that decision, the
High Court of Bombay in Ramchandra v. Emperor(3) observed
that the question whether sanction is necessary or not
depends not on the sections referred to in a complaint but
the offence prima facie disclosed’. by the facts alleged in
it.
It is clear from the charge-sheet submitted to the
magistratethat the offence of criminal conspiracy was not
even referred to. The offence “primarily and essentially”
alleged therein was oneof abetment of forgery under secs.
468 and 471 and of false,
(1) [1962] Supp. 2 S.C.R. 297. (2) A.I.R. 1925 Cal. 579.
(3) A.I.R. 1939 [Bom.] 129.
576
impersonation under sec. 419 read with sec. 109. Assuming
that the Magistrate before taking cognizance had persued the
statements of witnesses recorded by the police during
investigation, it was conceded by counsel, after he himself
had gone through them from the record, that none of the
witnesses had alleged therein either directly or indirectly
of the appellant having entered into a criminal conspiracy
with Bakshi Singh for forging the passport. It- cannot be
disputed that the charge-sheet also prima facie disclosed
the offence of abetment. That being so, it is ,impossible
to sustain the argument that the Magistrate took cognizance
of the offence under sec. 120B, and therefore, consent under
sec. 196A(2) was required as a condition precedent or that
the committal order and the proceedings for committal which
be took were vitiated for want of such consent.
The appeal, therefore, fails and is dismissed.
V.P.S. Appeal dismissed.
577