Pappayammal vs Arumugham and Others

Paul, J.—This revision petition has been preferred against the order of the learned Judical Second Class Magistrate of Dharmapuri

dismissing the petition C. M. P. No. 3426/77 filed by the revision petitioner in P. R. C. No. 17 of 1977 praying that the approvers in the aforesaid

murder case should be examined only by the Magistrate who took cognizance of the offence and not by the Judicial Second Class Magistrate of

Dharmapuri to whom the case had been transferred by the orders of this Court or in the alternative without examining the approvers, the case

should be committed to the Sessions Court.

The revision petitioner is the widow of the deceased Palaniappan who was murdered on 24-6-1974 at about 10 P. M. A charge sheet was laid

before the Judicial Second Class Magistrate No. II, Salem against the respondents for offences under Sections 120-B, 302 read with Section 34,

341 and 201 I. P. C. and u/s 3 (1) read with Section 25 of the Indian Arms Act. Eventually, the case was transferred by the orders of this Court

to the file of the Judicial Second Class Magistrate of Dharmapuri and is pending on his file as P. R. C. 17 of 1977. Three persons have been taken

as approvers in the aforesaid case. When the learned Magistrate was about to examine the approvers, the petition CM. P. No. 3426 of 1977 was

filed contending that the learned Judicial Second Class Magistrate to whom the case has been transferred cannot examine the approvers for it is

only the Magistrate who took cognizance of the case. namely, the Judicial Second Class Magistrate No. II, Salem, could examine the approvers.

This objection was overruled by the learned Magistrate. Hence this revision petition.

Section 209 of the Cr.P.C. states:

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate

that the offence is triable exclusively by the Court of Session, he shall.

(a) Commit the case to the Court ot Session;

Section 306 (4) of the Cr.P.C. states:

Every person accepting a tender of pardon made under Sub-section (1):

(a) shall be examined as a witness in the Court by the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

Sub-section (5) of Section 306 states: ""Where a person has accepted a tender of pardon made under Sub-section (1) and has been examined

under Sub-section (4) the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,

(a) commit it for trial

(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act. 1952, if the offence is triable exclusively by that Court;

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself."" Since the Sub-section (4) of Section 306

stipulates that every person accepting a tender of pardon made under Sub-section (1) shall be examined as a witness in the Court of the Magistrate

taking cognizance of the offence and in the subsequent trial, it has been contended by Mr. Kannan, learned Counsel for the revision Petitioner that

only the Judicial Second Class Magistrate1 No. II, Salem before whom the charge sheet was laid and who took cognizance of the case could

examine the approvers in the case and not the Judicial Second Class Magistrate, Dharmapuri to whom the case was eventually transferred. It is

necessary therefore to consider what exactly is the connotation of the term ""taking cognizance of the offence,"" Another question that arises for

determination is whether once a case is takn cognizance o� by a particular Magistrate no other Court or Magistrate could take cognizance once

again of the offence.

It has been observed in Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, .

What is ''taking cognizance'' has not been defined in the Criminal Procedure Code.... It seems to me clear, however, that before it can be said that

any Magistrate has taken cognizance of any offence u/s 190 (1)(a), Cr.P.C. he must not only have applied his mind to the con- tents of the petition,

but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter."" In

Shivangowda and Another Vs. Veerappa and Another, it has been held that (at p. 42 of Cri LJ):

Taking cognizance is a mental act. It is also a judicial act. Taking cognizance ordinarily means that the concerned Magistrate has come to the

conclusion that there is a case to be enquired into.

Of course as has been held in State Vs. Shankar Bhaurao Khirode, taking of cognizance is a different thing from initiattion of proceedings and

cognizance can be said to have been taken only when the Magistrate after having applied his mind to the report alleging an offence, himself does

something for proceeding under the subsequent provisions of the Code.

In Ramlakhan Mahto Vs. Rameshwar Mahto and Others, it has been observed as follows (at p. 868):

''Cognizance'' means to apply the mind for the purpose of taking cognizance in respect of facts constituting the offence. If the Magistrate applies his

mind not for the purpose of taking action under Chap. XVI but for any other purpose, then he cannot be said to have taken cognizance of the

offence u/s 190 (1) of the Code.

The observations in Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, were approved by the Supreme Court in

R.R. Chari Vs. The State of Uttar Pradesh, and in Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, and also in Gopal Das

Sindhi and Others Vs. State of Assam and Another, . Taking cognizance does not involve any formal action or indeed action of any kind. It takes

place as soon as the Magistrate applies his mind to the suspected com-1 mission of the offence. Michu Bagh and Another Vs. K. Sadangi and

Others, . (Orissa). The Supreme Court in Darshan Singh Ram Kishan Vs. The State of Maharashtra, has observed as follows (at P. 1699 of Cri

LJ):

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 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.

Undoubtedly, the learned Second Class Magistrate No. II, Salem before. whom the charge sheet in this case was filed had taken cognizance of the

offence.

The question is whether the Magistrate to whom the case was subsequently transferred can also be said to be a Magistrate taking cognizance or

in other words, whether cognizance of the offence can be taken again by another Magistrate or Court. Mr. Kannan, learned Counsel for the

revision petitioner contends that once cognizance is taken by a Magistrate, there cannot be taking of cognizance again by any other Magistrate. In

support of this contention, Mr. Kannan has relied on the decision In Kitti alias Kittaraju and Another Vs. Thammaiah Setty and Another, where it

was observed that once such cognizance is taken, there cannot be another order taking cognizance in the matter. Yet another decision relied on by

the learned Counsel for the revision petitioner is S.N. Dubey and Another Vs. Devi Kant Jha, . In that decision, it was observed that once

cognizance of an offence is taken, there is no question of taking cognizance afresh. In that case a complaint laid before a Magistrate was sent to the

Sub-Divisional Magistrate for disposal and the Sub-Divisional Magistrate examined the complainant on solemn affirmation and referred the matter

for enquiry to a First Class Magistrate. The first Class Magistrate passed an order taking cognizance of the offence and transferred the case to the

Court of Munsif-cum-First Class Magistrate for disposal. That order was challenged on the ground that the First Class Magistrate to whom the

complaint was sent by the Sub Divisional Magistrate for enquiry had no jurisdiction to pass the impugned order.

It was held by a single Judge of the Patna High Court that once cognizance of an offence is taken there is no question of taking cognizance afresh

and the order of the First Class Magistrate to the effect �cognizance is taken"" has no significance inasmuch as cognizance by the Sub Divisional

Magistrate and that the order simply transfers the case to some other Magistrate for trial and is to be treated as an order passed und Section 192

of the code. The learned Judge further observed that in as much as Section 192 of the Cr. P.C. says that (1) any Chief Presidency Magistrate,

District Magistrate or Sub Divisional Magistrate may transfer any case, of which he has taken cognizance, for enquiry or trial, to any Magistrate

subordinate to him and (2) any District Magistrate may empower any Magistrate of the First Class who has taken cognizance of any case, to

transfer for enquiry or trial to any other specified Magistrate in his district who is competent under the code to try the accused or commit him for

trial and such as Magistrate may dispose of the case accordingly, the First Class Magistrate can transfer to another Magistrate only a case of which

he has taken cognizance but he cannot transfer a case of which he himself has not taken cognizance unless of he acts as a successor in office of the

Magistrate who has taken cognizance and the First Class Magistrate�s power of transferring a case was restricted to the case of which he

himself has taken cognizance, but since in that case cognizance was taken by the Sub Divisional Magistrate only the Sib Divisional Magistrate or his

successor in office by virtue of Section 559 of the code could pass an order u/s 192 of the Code.

But then, in K.R. Bhat Vs. Emperor, , it has been held that power to try a case necessarily when a Magistrate has taken cognizance of an offence

and the case is transferred to another Magistrate, the transferee Magistrate proceeds according to Chap. XVI but does not take cognizance of the

offence. He should necessarily take cognizance of the offence before proceeding under Chap. XVI. For example committed to it for Section 193

Cr.P.C. says �except as otherwise expressly provided by this Code or any other law for the time begin in force, no court of Session shall take

cognizance of any offence as court of original jurisdiction unless the case has been committed to it by a Magistrate under this code.� When a

case is committed to a Court of Session by a magistrate, the Session Court takes cognizance of the offence, even though the Magistrate who

committed the case had already taken cognizance of the offence. Therefore, it cannot be said as a general rule, that once cognizance is taken by a

Magistrate, no other Magistrate or Court could again take cognizance of the offence. The expression �taken cognizance� in its broader literal

sense means taking notice of an offence and does not involve any formal action or indeed action of any kind, but occurs as soon as the Magistrate

applies his mind to the suspected commission of an offence before he could proceed with the enquiry or trial.

�Cognizance� is defined in Wharton�s Law Lexicon (Fourteenth Edition) as taking note judicially. Therefore, a transfere Magistrate has to

take cognizance of the offence before he could proceed to enquire into it or to proceed with a trial in respect of the offence. Therefore in this case,

in my view, the expression �the court of the Magistrate taking cognizance of the offence� occurring in Sub-section (4)(a) of Section 306 of

the Cr. P.C. would also include a Magistrate to whom the case is transferred for enquiry or trial. Hence, it is not necessary that it is only the

Magistrate who took initial cognizance of the offence on the filing of the charge-sheet before him should examine the approver or approvers and

the not the Magistrate to whom the case is transfereed for enquiry. Therefore the order of the learned Judicial Second Class Magistrate of

Dharmapuri is quite correct and I see no ground to interfere with it, This revision petition is dismissed.

The learned Counsel for the petitioner made an oral application for granting leave to appeal before the Supreme Court and the learned Counsel

for the first accused opposes the prayer. For granting leave under Article 134 (1)(c) of the Constitution the petitioner may file an application and

such an application will be considered on its merits.