Criminal Revn. Nos. 15 and 17 of 2002

15th January, 2002

Petitioner Counsel: M. S. AMRAWAT,

Cases Cited:
Narsingh Das Tapadia Vs. Goverdhan Das Partani, 2000 DCR 3 [Para 10,21,22]
R.R.Chari Vs. State of U.P., AIR 1951 SC 207 [Para 13]
Narayandas Bhagwandas Vs. State of West Bengal, AIR 1959 SC 1118 [Para 14]
D. Lakshminarayana Vs. V. Narayana, AIR 1976 SC 1672 [Para 15]
Ajit Kumar Vs. State of West Bengal, AIR 1963 SC 765 [Para 16]
Tula Ram Vs. Kishore Singh, AIR 1977 SC 2401 [Para 17]

JUDGMENT

JUDGMENT :- Heard at admission stage.

2. By this judgment, the abovementioned both the criminal revision petitions are being decided as in both of them, the law point involved is the same.

FACTS OF CRIMINAL REVISION PETITION NO. 15/2002

3. This criminal revision-petition has been filed by the accused-petitioner against the order dated 18-8-2001 passed by the learned Additional Chief Judicial Magistrate No. 2, Jodhpur in Criminal Case No. 303/99 by which the learned Magistrate dismissed the application filed by the accused-petitioner under S.468, Cr. P.C.

4. It arises in the following circumstances :

i) The respondent-complainant filed a complaint on 23-5-1998 against the accused-petitioner for committing the offence under S.138 of the Negotiable Instrument Act alleging that the accused-petitioner purchased lubricant oil from the complainant respondent and for making payment of that, a Cheque No. 232348 dated 25-8-1997 was issued by the accused-petitioner in favour of the complainant-respondent and that cheque was deposited by the respondent complainant in the bank on 24-3-1998, but it was dishonoured. When the cheque was dishonoured, the Bank informed the complainant about dishonour of the cheque on 25-3-1998 and that within 15 days from 25-3-1998, a registered notice was sent by the complainant-respondent to the accused-petitioner which was received by the accusedpetitioner on 11-4-1998. After receipt of the notice, the accused-petitioner did not reply to the notice issued by the complainant-respondent nor he issued a fresh cheque in favour of the complainant-respondent, thereupon on 23-5-1998, a complaint was filed by the respondent-complainant against the accused-petitioner in the Court of Additional Chief Judicial Magistrate No. 2, Jodhpur stating that he has committed offence under S.138 of the Negotiable Instruments Act.

5. When the complaint was filed on 23-5-1998, it was ordered to be put up on 26-5-1998. On 26-5-1998, the Court passed an order that the complaint be registered and further it was put up for recording the statements of the complainant-respondent and its witnesses under Ss.200 and 202, Cr. P.C. for 8-7-1998.

6. On 19-7-1999, an order was passed by the lower Court that the accused be summoned through bailable warrants.

7. In compliance of the order dated 19-7-1999, the accused-petitioner appeared on 24-5-2000 and on 20-7-2000, an application under S.468, Cr. P.C. was filed by the petitioner stating that since cognizance was taken on 19-8-1999, while the complaint was filed on 26-5-1998, therefore, the cognizance was taken after expiry of one year, therefore, the cognizance is time-barred.

8. But that application was rejected by the learned Judicial Magistrate through his order dated 18-8-2001 holding that cognizance in this case was taken on 26-5-1998 when the Court ordered that statements of complainant-respondent and its witnesses be recorded under Ss.200 and 202, Cr. P.C.

9. Aggrieved by the order dated 18-8-2001, this revision-petition has been filed by the accused-petitioner.

10. The main contention of the learned counsel for the accused-petitioner is that the order dated 26-5-1998 by which the learned Magistrate ordered for registration of the case against the accused-petitioner and further ordered that statements of the complainant-respondent and its witnesses under Ss.200 and 202, Cr.P.C. be recorded, does not amount to taking of cognizance and cognizance was actually taken on 19-7-1999 when process was issued against the accused-petitioner. He has placed reliance on a case of Hon'ble Supreme Court reported in 2000 DCR 3, Narsingh Das Tapadia v. Goverdhan Das Partani.

11. What is meant by taking cognizance. The word "cognizance" has not been defined in Cr. P.C. For convenience S.190 of the Cr.P.C.is quoted here:

"190(1) Subject to the provisions of this chapter, any Magistrate of the first class, and, any Magistrate of the second class specially empowered in this behalf under subsection (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.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."

12. The word "cognizance" means the hearing of a thing judicially. Therefore, it can be said that act of taking cognizance is a judicial act.

13. The Hon'ble Supreme Court in the case of R. R. Chari v. State of U.P., reported in AIR 1951 SC 207 has explained as to what is meant by taking cognizance in the following manner :

"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."

14. The Hon'ble Supreme Court in the case of Narayandas Bhagwandas v. State of West Bengal, reported in AIR 1959 SC 1118 has held as under :

"As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence. It is only when a Magistrate applies his mind for the purpose of proceeding under S.200 and subsequent sections of Ch. XVI of the Code of Criminal Procedure or under S.204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and, therefore, had taken cognizance.

15. The Hon'ble Supreme Court in the case of D. Lakshminarayana v. V. Narayana, reported in AIR 1976 SC 1672 has held as under :

"The expression "taking cognizance of an offence" by the Magistrate has not been defined in the Code. The ways in which such cognizance can be taken are set out in Cls.(a)(b) and (c) of S.190(1). Whether the Magistrate has or has not taken cognizance of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under S.200 and the succeeding section in Chapter XV of the Code of 1973 he is said to have taken cognizance of the offence within the meaning of S.190(1)(a). If instead of proceeding under Chapter IX he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under S.156(3) he cannot be said to have taken cognizance of any offence."

16. The Hon'ble Supreme Court in the case of Ajit Kumar v. State of West Bengal, reported in AIR 1963 SC 765 has further held as under:

"The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means 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. Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously, the statutory requirement must be fulfilled. But Statutory provision apart,there is no set material which must exist before the judicial mind can operate."

17. It may be stated here that any Magistrate who takes cognizance under S.190(1)(a), Cr. P.C. he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as, indicated in the subsequent provision i.e. proceedings under S.200, and thereafter sending it for inquiry and report under S.202. It can be said that before a Magistrate takes cognizance of an offence, he must have applied his mind for the purpose of proceeding in a particular way as indicated in the subsequent provision. When a Magistrate applies his mind not for the purpose of proceeding under the subsequent sections but for taking action of some other kind e.g. ordering an investigation under S.156(3) or issuing a search warrant for purposes of investigation, he cannot be said to have taken cognizance of. For that AIR 1977 SC 2401 Tula Ram v. Kishore Singh may be referred to where the legal propositions of law are as follows :

1. Magistrate can order investigation under S.156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Ss.190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14, he is not entitled in law to order any investigation under S.156(3) though in cases not falling within the proviso to S.202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by S.202 of the Code.

2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives;

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding, he can straightway issue process to the accused but before he does so he must comply with the requirements of S.200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceedings he can dismiss the complaint.

18. Thus from the above discussion, it becomes very much clear that when the Magistrate applies his mind for registering a case and further orders that statements of the complainant and its witnesses be recorded under Ss.200 and 202, Cr. P.C. he takes cognizance.

19. When this being the position, in the present case when the learned Magistrate ordered on 26-5-1998 that the case be registered and fixed the date of 8-7-1998 for recording the statements of the complainant-respondent and its witnesses, therefore, in all manner, it can be said that the Magistrate took cognizance on 26-5-1998.

20. The argument that he took cognizance on 19-7-1999, the day on which the accused-petitioner was summoned through bailable warrant is not correct. Under these circumstances, the learned Magistrate rightly rejected the application of the accused-petitioner filed under S.468, Cr. P.C. vide order dated 18-8-2001.

21. So far as authority in the case of Narsingh Das Tapadia (supra) on which reliance has been placed is concerned, the same authority also lays down the same law as discussed above and in that case, it was held by the Hon'ble Supreme Court as under:

Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed.

Mere presentation of the complaint in the Court cannot be held to mean, that its cognizance had been taken by the Magistrate.

22. The facts of the case of Narsingh Das Tapadia (supra) are distinguishable from the facts of the present case on the point that in that case the complaint was filed, but the same was returned to the complainant on the ground that verification was not signed by the counsel. In these circumstances, it was held by the Hon'ble Supreme Court that mere presentation of the complaint does not amount to taking cognizance. The position in the present case is different one as the Court applied its mind on 25-6-1998 on which date, the Court ordered that the complaint be registered and further ordered that statements of the complainant-respondent and its witnesses be recorded under Ss.200-202, Cr. P.C. In these circumstances, the above authority does not help the learned counsel for the accused-petitioner, rather substantiate the earlier law as laid down by the Hon'ble Supreme Court.

CRIMINAL REVISION PETITION NO. 17/2002

23. The law point involved in Criminal Revision Petition No. 17/2002 is squarely covered by the law point involved in Criminal Revision Petition No. 15/2002 and hence, the Criminal Revision Petition No. 17/2002 is also liable to be dismissed for the aforesaid reasons.

24. For the reasons mentioned above, both the revision petitions have no force and the same are liable to be dismissed.

Accordingly, the Criminal Revision Petition No. 15/2002 is dismissed after confirming the order dated 18-8-2001 passed by the learned Additional Chief Judicial Magistrate No.2, Jodhpur in Criminal Case No. 303/99 and the Criminal Revision Petition No. 17/2002 is dismissed after confirming the order dated 18-8-2001 passed by the learned Additional Judicial Magistrate No. 2, Jodhpur in Criminal Case No. 304/99.

Petition dismissed.