Darshan Singh Ram Kishan Vs. State of
Maharashtra [1971] INSC 234 (2 September 1971)
SHELAT, J.M.
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]
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 alleged
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" charged was
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 it is 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.
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