JUDGMENT
Garg, J.
1. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the accused petitioner against the judgment dated 7.6.1999 passed by the learned Addl. Sessions Judge No. 2, Bhilwara in Cr. Revision No. 84/96 (105/91) by which he rejected the revision petition filed by the accused petitioner and upheld the order dated 20.3.191 passed by the learned Judicial Magistrate First Class, Gangapur in Criminal Case No. 582/88 by which the learned Magistrate took cognizance against the accused petitioner for the offence under Sections 147, 149, 435, 453 and 477 IPC pertaining to FIR No. 248/88 Police Station Gangapur District Bhilwara and prayed that both the orders passed by the courts below be quashed.
2. It arises in the following circumstances:-
On 11.10.1988, one Bhagwati Lal lodged a report in the Police Station Gangapur against nine persons stating inter-alia that he has taken some premises on rent from Agarwal Samaj of Gangapur in which he was running his office for the last thirty years. It was further stated in the report that some dispute regarding disconnection of electricity was going on in the Court of S.D.M. and yesterday night, after reaching procession of Agrasen Maharaj in Narsingh Chowk, certain youngsters came at his office and thereafter, broke the locks and the material was taken out of the shop and it was put into fire. It was further stated in the report that he was sitting on the shop of Jugal Panwala.
On this report, the police registered the case and chalked out regular FIR No. 248/88 for the offence under Sections 147, 435 and 453 IPC and started investigation.
After usual investigation, police submitted challan against nine persons in the court of Magistrate on 30.11.1986. It may be stated here that police did not find case against the present accused petitioner and one Balu Ram, though their names were mentioned in the FIR and hence, challan was not filed against them. It may also be stated here that police found case against two other persons though their names were not found in the FIR and hence, against them, challan was filed.
On 30.11.1988, the learned Magistrate took cognizance against the nine persons mentioned in the charge-sheet for the offence under Section 147; 149, 435, 453, 477 IPC.
On the same day i.e. on 30.11.1988, an application was moved by the complainant with the prayer that cognizance be also taken against present accused petitioner and one Baluram as there was sufficient material against them and the police papers clearly showed prima facie case against them, but the police did not file challan against them.
On this application, the learned Magistrate passed order on 30.11.1988 that it may be tagged with the file.
It may be mentioned here that a criminal misc. petition No. 1/89 Bhagwati Lal v. The State of Rajasthan was also filed in this court by the complainant, but the same was dismissed as not pressed on 6.7.1989 and the learned counsel for the complainant states that it was dismissed as not pressed, because no order was passed by the learned Magistrate on his application dated 30.11.1988.
On 20.3.1991 when the arguments on charge were being heard by the learned Judicial Magistrate First Class, Gangapur, the said application, which was filed by the complainant on 30.11.1988, came for consideration and the learned Magistrate, after perusing the police papers and going through the statements recorded by the police under Section 161 Cr.P.C., came to the conclusion that prima facie case is established against these two persons, namely, present accused petitioner Suresh Chandra and one Balu Ram for committing offence under Sections 147, 149, 435, 453, 477 IPC and thus, he took cognizance against them for the said offences vide order dated 20.3.1991.
Aggrieved from the said order dated 20.3.1991 passed by the learned Judicial Magistrate First Class, Gangapura, both present accused petitioner Suresh Chandra and Balu Ram preferred criminal revision before the learned Sessions Judge, Bhilwara, which was transferred to the learned Addl. Sessions Judge No. 2, Bhilwara and the learned Addl. Sessions Judge No. 2, Bhilwara through his judgment dated 7.6.1999 rejected the revision petition of the present accused petitioner, but allowed the revision of accused Balu Ram.
Aggrieved from the said judgment-dated 7.6.1999 passed by the learned Addl. Sessions Judge No. 2, Bhilwara, this criminal misc. petition under Section 482 Cr.P.C. has been filed by the present accused petitioner.
In this petition, the following submissions have been made by the learned counsel appearing for the accused petitioner:-
(1) That since the cognizance for the said offences had already been taken by the learned Magistrate on 30.11.1988 against 9 persons mentioned in the charge-sheet, therefore, cognizance, which was taken by the impugned order dated 20.3.1991 against the present accused petitioner, could not have been taken and the course, which was open to the learned Magistrate was to wait till some material witnesses in Court were examined, in other words, recourse should have been taken under the provisions of Section 319 Cr.P.C.
(2) That the order dated 20.3.1991 passed by the learned Magistrate is further illegal for the reason that it was passed in clear contravention of principles of natural justice as before passing it, no opportunity of hearing was given to the accused petitioner.
Hence, it was prayed that this petition under Section 482 Cr.P.C. be allowed arid both impugned orders passed by the courts below be quashed and set aside.
4. On the other hand, the learned counsel appearing for the respondent No. 2 and the learned Public Prosecutor supported the impugned orders passed by both the courts below.
5. I have heard the learned counsel appearing for both the sides and perused the material available on record.
6. Before proceeding further, it may be stated here that during the course of arguments, the learned counsel appearing for the accused petitioner first submitted that after filing of challan, the learned Magistrate was ceased of the matter and he cannot take cognizance against some other accused till the stage of the provisions of Section 319 Cr.P.C. comes, but later on, he changed his argument by saying that the learned Magistrate has power to take cognizance even against those accused, those names are not mentioned in the charge-sheet submitted by the police, but on the same day when the challan is filed and after filing of the charge-sheet, the learned Magistrate cannot take cognizance except in circumstances as provided in Section 319 Cr.P.C. and, therefore, in this case, since challan was filed on 30.11.1988 and on that day, cognizance was taken by the learned Magistrate against nine persons and no cognizance was taken against the present accused petitioner and, therefore, subsequent taking of cognizance against the present accused petitioner is illegal.
7. The pertinent question that arises for determination in this case is whether the learned Magistrate after passing the order taking cognizance of the offence and issuing process to the accused persons named in the charge-sheet filed by the police has any power to issue process to other accused persons not named in the charge-sheet to face trial.
8. Before proceedings further, something should be said about the word ‘cognizance’.
9. The word ‘cognizance’ has no esoteric or mystic significance in criminal law or procedure, it merely means to become aware of and, when used with reference to a court or Judge, to take notice of judicially. Taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. It is impossible to attempt to define what is meant by ‘taking cognizance’, and as to when cognizance is taken of an offence which depends upon the facts and circumstances of each case.
Cognizance is taken of offence and not of offenders.
10. It may stated here that upon receipt of a police report under Section 173(2) Cr.P.C. a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) Cr.P.C. even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) Cr.P.C. does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) Cr.P.C. and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 Cr.P.C. for taking cognizance of a case under Section 190(1)(a) Cr.P.C. though it is open to him to act under Sections 200 or 202 Cr.P.C. also.
11. Under Section 190 Cr.P.C. the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence.
12. As already stated above, when a Magistrate takes cognizance, he takes a cognizance of the offence and not merely against a particular person or persons named in the charge sheet or the complaint. Consequently, a Magistrate is entitled to summon additional accused against whom he considers that there is good evidence after perusal of the statements and other documents in a case on a police report.
13. The Hon’ble Supreme Court in Hareram Satpathy vs. Tikaram Agarwala & Ors. (1) has held that the Magistrate has power to issue process against those persons whose names were not mentioned in the police report.
14. The Hon’ble Supreme Court in India Carat Pvt. Ltd. v. State of Karnataka and Anr. (2) has held that Magistrate can take cognizance of the offence even if police report is to the effect that no case was made out.
15. The Orissa High Court in Rajkishore Mohapatra & Ors. v. State of Orissa & Anr. (3) has observed that the Magistrate had the power to issue summons to persons who had not been arranged as accused sent up for trial in the report submitted by the Investigating Officer under Section 173 Cr.P.C. and this power could be exercised at any stage after taking cognizance of the offences on consideration of the material available with her, which includes the report of the Investigating Officer and the documents annexed to it (police papers).
16. Thus, the Magistrate has power to add some other accused against whom challan’has been filed by the police.
17. In the present case, from perusing the impugned orders, it appears that the learned Judicial Magistrate First Class, Gangapur as well as the learned Addl. Sessions Judge No. 2, Bhilwara came to the conclusion, on the basis of police papers, that a prima facie case, was found established against the present accused petitioner for the offences for which cognizance was taken and it may be stated here that at that stage, meticulous examination about probabilities or improbabilities of involvement of accused is not required and the Court is also not required to closely scrutinize the evidence on record. From the papers on record, if it appears to the learned Magistrate that a prima facie case is made out against any accused person, the Magistrate can issue process against him and proceed further on the same papers submitted by the police on the basis of which police did not find case against that accused person. The cognizance, which was taken by the learned Magistrate would fall within Section 190(1)(b) and not 190(1)(c) Cr.P.C. and simply because the application was not decided by the learned Magistrate on the very day i.e. on 30.11.1988, it would not make any difference as the application was decided before framing of charges against other accused persons. Apart from this, summoning of additional accused is part of proceedings initiated by taking cognizance of an offence and, therefore, if on 30.11.1988, the learned Magistrate did not take any cognizance or did not take any order on the application of the complainant, he is not precluded from taking cognizance against the present accused petitioner when arguments on charges were being heard by him and application of the complainant came up for consideration before him.
18. Therefore, I am clearly of the view that when the Magistrate, after taking cognizance of the case on police report summons the charge-sheeted accused and subsequently, he found on consideration of material on record that a prima facie case is also established against other accused persons, he can issue summons against those accused persons not arranged as accused in the charge sheet filed by the police and this power can be exercised at any time, but before framing of the charges against the accused persons against whom challan was filed by the police and cognizance was taken by the Magistrate. I am further of the view that after framing or charges against those accused persons against whom challan was filed and cognizance was taken by the Magistrate, the Magistrate cannot take cognizance or add other accused persons or summon additional accused on the basis of police papers and if the Magistrate wants to take cognizance against other accused or add other accused persons or summon additional accused after framing of charges against those accused persons against whom chalian was filed and cognizance was taken by the Magistrate, in that event, he has to take recourse under the provisions of Section 319 Cr.P.C. meaning thereby after recording the evidence in Court.
19. Hence, argument that after filing of challan, cognizance can only be taken under the provisions of Section 319 Cr.P.C. is rejected.
20. In view of the law laid down by the Hon’ble Supreme court in the case of M/s. India Carat Pvt. Ltd. (supra), the decisions relied upon by the learned counsel for the accused petitionef in Bagh Singh v. The State of Rajasthan (4), Jogendra and Ors. v. State of Rajasthan and Anr. (5), Bansilal and Anr. v. State of Rajasthan and Anr. (6) and Rajesh Sidana (Smt.) v. The State of Rajasthan and Anr. (7) would not be helpful to the accused petitioner.
21. So far as the decisions relied upon by the learned counsel for the accused petitioner in Sukhdas and Ors. v. State of Rajasthan (8) & Ranjit Singh v. State of Punjab (9) are concerned, they are not applicable to the facts of the present case as there is no dispute on the point that in cases exclusively triable by Sessions Court, the Magistrate has no power to add other accused against whom challan has not been filed.
Whether accused has to be heard before cognizance is taken?
22. Since, Magistrate takes cognizance of an offence and not against any particular accused, therefore, accused is not entitled to hearing prior to issue of process. For that the Full Bench decision of this Court in Mahesh Chand v. State of Rajasthan (10) and decision of Allahabad High Court in Pratap v. State of U.P. (11) may be referred to.
23. Hence, the argument that accused petitioner was not heard by the learned Magistrate before taking cognizance against him is rejected.
24. For the reasons stated above, it is held that while passing the impugned order dated 20.3.1991, the learned Magistrate had power to take cognizance against the present accused petitioner and by taking cognizance against the accused petitioner, the learned Magistrate could not be said to have exceeded the power vested in him under law and the learned Addl. Sessions Judge No. 2, Bhilwara rightly did not interfere with the said order of the learned Magistrate taking cognizance against the accused petitioner. Hence, no interference is called for in exercise of powers under Section 482 Cr.P.C. and this petition is liable to be dismissed.
Accordingly, this criminal misc. petition under Section 482 Cr.P.C. filed by petitioner Suresh Chandra is dismissed, after confirming the impugned judgment dated 7.6.1999 passed by the learned Addl. Sessions Judge No. 2, Bhilwara and order dated 20.3.1991 passed by the learned Judicial Magistrate First Class, Gangapur.
