State by Public Prosecutor vs P. Nazarudeen

Rengasamy, J.—This revision is against the order of the learned Judicial Magistrate, Karaikudi dated 19.9.1990 refusing to remand the

Respondent/accused for the offences under Sections 124A, 153 (B)(i)(c), 295A and 505(i)(c) of the Indian Penal Code read with Section 34 of

the Indian Penal Code. The Respondent herein was arrested on 19.9.1990 and was produced before the learned Judicial magistrate, Karaikudi on

the same day requesting for the remand of the accused. But the learned Magistrate has not remanded on the ground that u/s 196(3) sanction is a

must for taking cognizance by the Court and in this case as sanction was not obtained, the arrest itself was illegal and therefore, he was not

remanding the accused person.

On a perusal of the order of the learned Magistrate I find that the has wrongly referred to Section 155(3) of the Code of Criminal Procedure for

the arrest of the accused in this case. Section 155 of Criminal procedure Code is applicable only to the non-cognizable cases by the police. All the

offences referred to in the Remand Report are cognizable by the Police and therefore, it was a mistake on the part of the learned Magistrate for

referring Section 155 of the Code of Criminal Procedure in this case.

No doubt of Section 196(3) requires sanction for taking cognizance by the Court for certain offences. Section 190 Code of Criminal Procedure

refers to the cognizance by the Magistrate and under this section there are three stages for taking cognizance by the Magistrates. They are

(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.

The first stage referred to is the complaint directly received by the Magistrate. The next is the report of the Police Officer, dealt with u/s 173 of the

Criminal Procedure Code. The third category is information received from any other person or upon the own knowledge of the Magistrate himself.

In this case as the police has taken cognizance, as these offences are cognizable offences, unless the final report u/s 173 of the Code of Criminal

Procedure is filed, the stage for taking cognizance by the Magistrate has not reached. The learned Magistrate cannot try the case (taking

cognizance) if the sanction was not obtained as required u/s 196. But in this case the stage for taking cognizance had not come at the time when the

accused was produced before him for remand.

u/s 167 of the Code of Criminal Procedure when a person was arrested and detained in custody and investigation could not be completed

within twenty-four hours, he could be produced before the nearest Judicial Magistrate for remand, Irrespective of the question whether the

Magistrate was empowered to try the offence or not, he has to remand a person when produced u/s 167(2). Therefore, in this case as the offences

are cognizable by the Police, there is nothing illegal in arresting the accused and the Magistrate before whom he was produced, was bound to

remand the accused person. The Court below was misguided by Section 196(3) even before the stage has reached him, for the trial of the case.

Therefore, the order of the learned Magistrate is not sustainable and is liable to be set aside.

In the result, the order of the learned Magistrate is set aside. The revision is allowed.