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Judgment
Anand Byrareddy, J.—Heard the learned Advocate General appearing for the petitioners.
The respondents having been served have remained absent.
The facts leading up to this petition are as follows:
The first respondent is said to have filed a private complaint u/s 200 of the Code of Criminal Procedure, 1973 against the second respondent, alleging offences u/s 153-A, 295 and 295-A of the Indian Penal Code 1860. The second respondent is the Chief Minister of Tamil Nadu and he wan alleged to have made certain statements at Chennai and these statements, which were said to have been published in Newspapers at Bangalore, formed the basis of the complaint.
It transpires that when the matter came up before the Court of the Magistrate on 03.12.2007, the following order was passed as reflected in a copy of the order sheet dated 03.12.2007, as follows:
Complainant present in view of Section 179 Cr.P.C. this Court is having jurisdiction which consequence happened at Madiwal P.S. Jurisdiction. Register the case in PCR.
The offence involved in the case are u/s 153-A, 295 and 295-A of IPC. They require investigation.
Hence, acting u/s 156(3) Cr.P.C. refer the complaint for investigation & report to SHO, Madiwala.
Await Report by 05/01/08.
Sd/-
03/12
The petitioners are before this Court pursuant to cognizance having been taken by the Magistrate as aforesaid. It is contended that the alleged statements made by the second respondent, Chief Minister of Tamil Nadu at Chennai, which statements are said to have been published at Bangalore would not clothe a Court of the Magistrate at Bangalore with jurisdiction to entertain the complaint or to direct investigation of the case by the second petitioner. The investigation if proceeded with, would be one without jurisdiction.
The learned Advocate General would submit that in terms of Section 196 of the Code of Criminal Procedure, 1973, prior sanction of the State is essential for the Magistrate to take cognizance. In the case on hand, there is no such sanction obtained in the first instance. Hence, on the face of it the proceedings before the Magistrate ought to be set at naught, and it is in this vein that the petition is preferred.
In this regard apart from reading the express provisions of the Section, namely, Section 196 of the Code of Criminal Procedure'' 1973, reliance is placed on several authorities to contend that the Magistrate having taken cognizance and having directed investigation, is contrary to the provisions aforesaid, notwithstanding that the person who is said to be aggrieved is a Station House Officer, namely, the second petitioner who is now directed to investigate the alleged offence, the State of Karnataka is equally concerned, as the object of the provisions under Chapter XVI of Code of Criminal Procedure is rendered nugatory, in the event the alleged offences are sought to be prosecuted without the prior sanction of the State, which is mandatory.
The learned Advocate General would submit in the instant case, the direction to investigate the offence would tantamount to taking cognizance as held by the Supreme Court in the case of CREF Finance Ltd. Vs. Shree Shanthi Homes Pvt. Ltd. and Another, .
The learned Advocate General would further submit that in the case on hand, the complaint having been registered and the Magistrate having proceeded to direct investigation of the same, would indicate that he has taken cognizance and therefore has contravened the procedure prescribed, which imposes a threshold bar to the institution of proceedings and would submit that the proceedings be set at naught.
In the light of the above contentions, the points to be considered would be:
a) Whether the Court of Magistrate has taken cognizance of the case by virtue of its direction to the concerned station House Officer to investigate and report?
b) Whether the institution of the proceedings without the prior sanction as prescribed u/s 196 of the Code of Criminal Procedure 1973, in the circumstances of the case, enabled the Court to take cognizance?
Though the territorial jurisdiction of the Court of the Magistrate in entertaining the complaint is sought to be questioned, as the petition can be disposed of on above mentioned issues, the objection as regards jurisdiction is not considered on merits.
What is taking cognizance has not been defined in the Code. 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 judicially'' (see Ajit Kumar Palit Vs. State of West Bengal, )
Criminal proceedings are initiated either by a First Information Report lodged before the Police if the offence is a cognizable one or by a complaint lodged before a jurisdictional Magistrate, irrespective of whether the offence is cognizable or non-cognizable.
When a complaint is lodged the Magistrate may order for investigation by the police, as in the instant case. The question whether the Magistrate has taken cognizance of the offence on the complaint before sending it for investigation or whether the case was sent to the police without taking ''cognizance'' of the offence, is well - settled. Whether the Magistrate can be said to have taken cognizance of the alleged offence in the complaint u/s 190(1) of the Code depends upon the purpose for which he applies his mind to the complaint. If it is for the purpose of proceeding with the complaint under the various provisions of Sections 200 - 203, namely, for examination of the complainant, postponement of issue of process etc, the magistrate must be held to have taken cognizance of the offences mentioned in the complaint; on the other hand, if he applies his mind to the complaint only for the purpose of ordering an investigation u/s 156(3) of the Code, he cannot be said to have taken cognizance of the offence.
(See: Jamuna Singh and Others Vs. Bhadai Sah, ; Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, ; Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, ; R.R. Chari Vs. The State of Uttar Pradesh, ; Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, ; Gopal Das Sindhi and Others Vs. State of Assam and Another, ; Shiva Shiv Prasad Shukla Vs. State, ; Ramalakhan v. Rameshwar 1975 Cri LJ 866 (Pat HC); see also State of Assam Vs. Abdul Noor and Others, ; Mowu Vs. The Superintendent, Special Jail, Nowgong, Assam and Others, ; Darshan Singh Ram Kishan Vs. The State of Maharashtra, .)
This is the view expressed by the Supreme Court even in the CREF Finance Limited case supra cited by the learned Advocate General - a complaint when sent to the police for investigation u/s 156(3) is not an instance of a Magistrate having taken cognizance.
It is to be kept in view that the Magistrate may take cognizance of the offence on the complaint being lodged - but when an investigation is ordered u/s 156(3) - the police are required to submit a report after investigation u/s 173(2). On receiving the police report the magistrate may take cognizance of the offence u/s 190(1)(b) and issue process. This is the position generally in respect of institution of Criminal proceedings and of taking cognizance on a complaint.
In the instant case however, the offences alleged are under Sections 153-A, 295 & 295A of the Indian Penal Code - relating to promoting enmity between different groups of people and involving deliberate acts outraging the religious feelings of any class. And as pointed out by the learned Advocate General, Section 196(1) provides that no Court shall take cognizance of any offences u/s 153A or Section 295A without the previous sanction of the Central Government or the State Government.
The object of Section 196(1) of the Code of Criminal Procedure is to prevent unauthorized persons from intruding in matters of State by instituting prosecution and to secure that such prosecutions, for reasons of policy, shall only be instituted under the authority of Government. Further, the offences are of a serious and exceptional nature and deal with matters relating to public peace and tranquility with which the State Government is concerned. Therefore, provision has been made for obtaining prior sanction of the Government before cognizance is taken of any such offence. It is possible that in a given case the very filing of a prosecution, after tempers have cooled down, may generate fresh heat which could well be avoided by the Government by refusing to accord sanction. There is hence an underlying policy which is evident on a reading of the offences enumerated in Section 196(1) in respect of which prior sanction is a must before cognizance of such offence can be taken. Further under Sub-section (3) of Section 196, it is laid down that before sanction is accorded, the State Government may order a preliminary investigation by a police officer. This is apparently to decide on the course to be adopted by the State Government in respect of any particular incident and is therefore a crucial step, which cannot be bypassed.
Therefore, in my view having regard to the nature of offences alleged, prior sanction of the State Government was a must before the Magistrate could even direct an investigation by the jurisdictional police. It is this feature which would distinguish the present case as an exception to the general rule.
Hence, the writ petition is allowed. The proceedings before the Court of the VI Additional Chief Metropolitan Magistrate, Bangalore in PCR 18433 of 2007 are hereby quashed.