T.M. Rajendran and Another vs C.A. Reddy

Janarthanam, J.—Petitioners are accused 1 and 2 in C.C. No. 8800 of 1986 on the file of the III Metropolitan Magistrate, George Town, Madras.

Respondent herein and his sister Miss. C.C. Saraswathy are the absolute owners of the entire premises bearing door No. 6, Kondi Chetty Street, George Town, Madras-1. By an agreement dated 10.4.1983, the said premises was leased out to accused 1 with a specific stipulation that the said premises should be put to use only for running hotel business and for no other purpose or purposes and that it should not be sublet. To his surprise and dismay, the Respondent came to know on 16.7.1983 that an arrack shop sign board was put up on the premises. Immediately he sent a telegram to accused 1 to remove the sign board with a warning that his failure to do so was likely to result in actions, civil and criminal being taken. He gave a complaint to the Inspector of Police, B2 Police Station, he also sent petitions to the Commissioner of Police, Collector of Madras and the Commissioner and Secretary (Prohibition and Excise). No action was taken by any of the authorities.

Consequently, he filed a Writ Petition No. 6752 of 1983 before this Court impleading the Collector of Madras, the Commissioner (Prohibition and Excise) and accused 1 and 2, besides impleading M/s. K.V.L. & Co., represented by power agent K.V. Lakshmipathy, who is none-else than accused 3 in the case. In the writ proceedings, accused produced a letter dated 14.7.1983 purported to have been signed by Respondent and his sister, giving consent to the opening of an arrack shop in the demised premises. That letter was the basis for grant of licence in favour of accused by the Assistant Commissioner (Excise). Respondent and his sister questioned the genuineness and authenticity of that letter. Consequently, this Court directed the Assistant Commissioner (Excise) to hold an enquiry and decide the authenticity and genuineness of the said letter with the aid of the Forensic Science Laboratory. Accordingly the Assistant Commissioner held an enquiry and gave a finding that the said consent letter was a forged one.

On receipt of the finding, this Court directed accused 3 to shift the arrack shop from the demised premises to some other place.

Subsequently, Respondent lodged a report before the Inspector of Police, Crime Branch, Egmore, Madras, which was duly registered on 14.6.1984 as X Crime No. 384/84 for alleged offences under Ss. 467, 468, 471, 420 and 109 I.P.C. against accused 1 to 3. After completing the formalities of investigation, a final report u/s 173(2) Code of Criminal Procedure had been laid on 19.9.1984 against accused 1 to 3 for the aforesaid offences, which is now pending as C.C. No. 8563 of 1984 on the file of the III Metropolitan Magistrate, George Town, Madras.

Respondent, who happened to go through the final report filed by the police, came to realise that the accusations set out therein do not reflect the real offences against the offenders concerned as borne out by the records. Dissatisfied with the perfunctory nature of the investigation, he preferred the private complaint against accused 1 to 3 on 1.10.1986. which is now pending as C.C. No. 8800 of 1986 on the file of the III Metropolitan Magistrate, George Town, Madras for alleged offences under Ss. 471, 467, 420 and 120-B, I.P.C. It is to quash the said criminal proceedings the present action, invoking the inherent jurisdiction of this Court had been resorted to by accused 1 and 2.

Learned coursed appearing for the Petitioners would submit that since cognizance had been taken by learned Magistrate on the Police report filed u/s 173(2) Crl.P.C, the subsequent taking cognizance in respect of the same transaction against same accused on the initiation of a private complaint is not sustainable and therefore it is that the criminal proceedings initiated against Petitioners accused 1 and 2 by way of a private complaint are liable to be quashed.

Learned Senior Counsel for Respondent would however repel such a submission.

Now let me embark upon a discussion on the knotty question of some importance placed in this case. S. 190(1) Code of Criminal Procedure deals with cognizance of offences by Magistrates. Under the sanguine provisions, a Magistrate is empowered to take cognizance of any offence under any one of the following circumstances:

(1) upon receiving a complaint of facts which constitute such offence.

(2) upon a police report of such facts; and

(3) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed.

The meaning of the phraseology ''take cognizance'' used in the aforesaid provision is of some significance in understanding the said provision. It only means ''became aware of or takes judicial notice of an offence. The problem of taking cognizance of an offence becomes a vexed question when there is a police report as well as a private complaint in respect of the same transaction. In such an eventuality, whether it is legally permissible for the Magistrate to take on file both the cases, in the sense of taking cognizance of the offence stated to have been constituted by the averments in the police report and the private complaint. Whether such taking of cases on file is inhibited or interdicted by the provisions of the Code of Criminal Procedure? The submission of learned Counsel for the Petitioner, as already stated, would reflect such taking of case on file would amount to ''taking cognizance twice'' of the offences in respect of the same transaction and such a thing is not legally permissible, as, if at all cognizance of the offence can be taken only once.

Learned Counsel appearing for the Respondent would emphatically submit that taking on file both the cases in such a situation by the Magistrate is legally permissible as in such taking on file of those cases, the Magistrate takes cognizance or becomes aware of an offence only once and not twice, as slated by the other side. The view, as projected by learned Counsel for the Respondent, appears to be logical and tenable, if the scheme as outlined in the Code of Criminal procedure by various provisions are understood in the proper and broader perspective.

If ''taking cognizance'' means only ''becoming aware of ''or ''taking judicial notice of ''an offence, whatever might be the situation in a given case, in law the Magistrate takes cognizance or becomes aware of an offence only once. In that sense, it is correct to say that the Magistrate cannot take cognizance of an offence twice. When on the basis of a police report or private complaint or otherwise, a Magistrate takes cognizance of an offence, he becomes aware of the commission of the offence and that awareness will certainly continue or at any rate in the eyes of law, be deemed to continue. In such state of affairs, the commission of an offence is again brought to his notice, say by way of private complaint; strictly speaking, he does not take cognizance of the offence again but exercises his judicial power and proceeds with that case in pursuance of the cognizance already taken by him on the previous occasion. As such, the taking on file of the private complaint by the Magistrate in the instant case cannot at all amount to taking cognizance for the second time and in this view of the matter, the view as projected by learned Counsel for the Petitioner deserves outright rejection.

Even if it is to be construed that the taking of the complaint on file by the Magistrate amounted to taking cognizance for the second time, it cannot be stated that there is any bar provided by the provisions of the Code against such action. On the other hand, there are certain provisions of the Code, to which I may immediately point out, that permit taking cognizance of an offence more than once by the Magistrate under certain circumstances.

S. 173(8) Cr.P.C. is one such provision. A police officer, after completing the investigation, files a final report u/s 173(2) Code of Criminal Procedure or the report so filed, the Magistrate takes cognizance of the offences mentioned therein and further proceeds with the case. Thereafter, if the investigating agency feels that there are some more materials, if collected would point out the commission of the other offences by accused against whom already a final report had been filed as well as the commission of offences by other accused not arrayed as accused in the original final report filed, it is perfectly open to them to reinvestigate the matter u/s 173(8) Code of Criminal Procedure and file a supplementary report or reports before the Magistrate, who in turn, on deriving subjective satisfaction about the commission of the offences by various accused as reflected in such reports, may take cognizance of those offences.

The other signal provision that may be referred to for further projecting this view is found adumbrated u/s 210 of the Cr. P.C. This section deals with the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. It deals with the situation where the private complaint precedes the filing of the final report by the police. In such an eventuality, a mandate is cast upon the magistrate to stay the proceedings of the enquiry or trial in the complaint case and call for a report on the matter from the police officer conducting the investigation. If a report is filed u/s 173(2) Cr.P.C, the Magistrate takes cognizance of the offences as disclosed by such report. After taking the police report also on file, the magistrate is required to try the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. If the police report does not relate to any accused in the complaint case or if the magistrate does not take cognisance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. In adopting such a procedure, the magistrate had already taken cognizance of the offences as disclosed by the complaint case and also takes cognizance of the offences as disclosed by the police report as and when filed in respect of the same transaction. There is no interdiction or inhibition in taking cognizance of offences as disclosed by the complaint case as well as by the police report, though such a procedure amounts to taking cognizances twice. The interdiction or prohibition is for the magistrate not to proceed with the complaint case before even the police report is filed. That is all and nothing further.

Of course true it is that the case on hand is exactly on the reverse of the situation as contemplated in this section. Admittedly the police report precedes the complaint case. The occasion by way of preferring a private complaint had been necessitated in this case as the police report, as already indicated, did not reflect the real offences against the offenders concerned as borne out by the records. Since the complaint case had been given subsequent to the filing of the police report, duly taken cognizance of by the magistrate, there is no question of any stay of the complaint case, inasmuch as the magistrate can try both the cases together without any obstacle whatever and arrive at an independent conclusion in each case on the assessment or evaluation of the evidence. The facts of the instant case reflects reverse of a situation as contemplated u/s 210 Crl. P.C. is of no consequence. The point emphasised by reference to S. 210 is that there is no prohibition for the Magistrate to take cognizance of an offence twice, once on a police report and another on a private complaint in respect of the same transition.

16 The adoption of such a procedure will not in any way hamper autrefois acquit or convict principles adumbrated u/s 300 of the Crl.P.C.

In this view of the matter, the taking on file of the private complaint by the magistrate does not involve taking cognizance once again and even if it is so interpreted, there is no bar against such proceedings.

18 The petition therefore deserves to the dismissed and is hereby dismissed.