Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XX

Let us discuss 6 situations in this context.

Situation 1 At 4.30 p.m a Magistrate receives a private complaint alleging the commission of cognizable offences by the named accused therein. The complainant and his witnesses are present. The Magistrate goes through the complaint and the documents produced along with it and looks up at the clock to find that the time is ten minutes past 5 pm. The Magistrate, therefore, adjourns the case to the next day.

Situation 2 In the above situation, instead of adjourning the case, the Magistrate issued a search warrant as requested by the complainant.

Situation 3 In Situation 1 above, the Magistrate after making a record of the proceedings in the “case sheet” which reads – “adjourned to tomorrow for recording the sworn statement of the complainant and the witnesses”, adjourns the case to the next day.

Situation 4 In Situation 1 above, the Magistrate after adjourning the case to the next day, records the sworn statement of the complainant and the witnesses.

Situation 5 In Situation 1, after perusing the complaint and the documents, the Magistrate applies his mind and forwards the complaint to the Police under Section 156 (3) Cr.P.C. for investigation and report.

Situation 6 In Situation 4 above, after recording the sworn statement of the complainant and the witnesses, the Magistrate issues summons to the accused under Section 204 Cr.P.C.

Q (a) Has the Magistrate taken cognizance of the offences in any of the above six situations involving private complaints?

Q (b) If the Magistrate has taken cognizance of the offences in any of the above six situations, in which situation did the Magistrate first take cognizance of the offences ?

Ans. (a) The Magistrate has taken cognizance of the offences in Situations (3), (4) and (6). We will shortly discuss that when once the Magistrate, after applying his mind to the averments in the complaint and the supporting material, has decide to proceed under Section 200 and the subsequent sections relating to inquiry and trial in the Cr.P.C., the Magistrate can be said to have taken cognizance of the offence. The actual recording of the sworn statement of the complainant and the witnesses, is really at the post-cognizance stage.

(b) It was in Situation (3) that the Magistrate first took cognizance of the offences.

NOTE BY VRK: A doubt may arise as to whether the Magistrate in Situation 3 above, after recording in the “case sheet”, his decision to take the sworn statement (i.e. his decision to proceed under Chapter XV Cr.P.C.), may change his decision and in that event, how can it be said that he has taken cognizance of the offence ?

The judicially settled position (which will be discussed shortly) is that when a Magistrate, upon receiving a “complaint”, applies his mind for the purpose of proceeding under Section 200 and the subsequent Sections in Chapter XV Cr.P.C., he can be said to have taken cognizance of the offence.

When once the Magistrate has decided to proceed under Chapter XV Cr.P.C., he cannot retrace his steps backwards in view of Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674 – 3 Judges – N. Santhosh Hegde – J, and Subramaniam Sethurman v. State of Maharashtra AIR 2004 SC 4711 – N. Santhosh Hegde – J. Moreover, the process of taking cognizance of an offence is a complex one which only begins with the decision to proceed under Chapter XV Cr.P.C. and may extend upto the stage of dismissing the complaint under Section 203 Cr.P.C. or issuing process under Section 204 Cr.P.C.

Q.97 In a murder case the case of the prosecution is that death was caused by administering poison to the deceased. But no medical report to that effect and no evidence to the effect that poison was administered to the deceased. However, the Sessions Judge to cognizance of the offence of murder on suspicion. Is it liable to be quashed in a petition under Section 482 Cr.P.C. ?

Ans. Yes. The facts in Harishchandra Prasad Mani v. State of Jharkand (2007) 15 SCC 494 = AIR 2007 SC 1117 – S. B. Sinha, Markandey Katju – JJ, were identical and the order taking cognizance was quashed.

Q.98 Will not a writ petition under Article 226 of the Constitution of India lie against an order taking cognizance of an offence ?

Ans. No. Such an order can be challenged only under the revisional jurisdiction under Section 397 Cr.P.C. or under the inherent power of the High Court under Section 482 Cr.P.C. Doctrine of “forum non convenience” discussed. (Vide Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. (2006) 3 SCC 658 = AIR 2006 SC 1288 – S. B. Sinha, P. K. Balasubramanyan – JJ).

Q.99 What are the initial steps taken by a Magistrate taking cognizance of an offence on a private complaint ?

Ans. When a private complaint alleging the commission of a cognizable offence is filed before a Magistrate and the Magistrate has decided to proceed under Chapter XV of Cr.P.C., he is said to have taken cognizance of the offence. The first step in Chapter XV is to record the sworn statement of the complainant (and the witnesses, if any, present and if necessary). If it is the complaint of a public servant acting in discharge of his official duties or of a Court, the proviso to Section 200 Cr.P.C., dispenses with the requirement of recording the sworn statement. The Magistrate may at this stage issue process or may conduct an inquiry under Section 202 Cr.P.C. depending upon the degree of his satisfaction regarding the alleged commission of the offence.

Q.100 On receipt of a private complaint alleging the commission of a cognizable offence, if the Magistrate, instead of taking cognizance of the offence, orders an investigation under Section 156 (3) Cr.P.C., is the SHO bound to register an FIR and start investigation ?

Ans. Yes. Instead of taking cognizance, the Magistrate may forward the private complaint to the Police for investigation under Section 156 (3) Cr.P.C. and in that case the Police are bound to register an FIR and conduct investigation and submit the Police Report before the Magistrate under Section 173 (2) Cr.P.C. (Vide para 10 of Suresh Chand Jain v. State of M.P. (2001) 2 SCC 628 = AIR 2001 SC 571 – K. T. Thomas, R. P. Sethi - JJ; Madhu Bala v. Suresh Kumar (1997) 8 SCC 476 = AIR 1997 SC 3104 – M. K. Mukherjee, S. Saghir Ahmed - JJ; Para 26 of Samaj Parivartan Samudaya v. State of Karnataka (2012) 7 SCC 407 = AIR 2012 SC 2326 – 3 Judges – S. H. Kapadia – CJI, Aftab Alam, Swatanter Kumar – JJ). When once the complaint has been forwarded for investigation under Section 156 (3) Cr.P.C., the complaint transforms itself into an FIR under Section 154 Cr.P.C. (Vide Madhu Bala v. Suresh Kumar (1997) 8 SCC 476 = AIR 1997 SC 3104 – M. K. Mukherjee, Saghir Ahmad - JJ).