DARSHAN SINGH RAM KISHAN versus STATE OF MAHARASHTRA

DARSHAN SINGHRAJ\1 KISHA'N

STATE Of1MAHARASHTRA September 2, 1971

[J: .M. 'SHELAT, I.· D. DuA AND,$. C. ROY, JJ.)

~ Code of Criminal' Procedure' (Ac;/ 5 of 1898), S: 19"64(2)-Charge-shee,t by po/ice-Nq reference to or a1/egation of crilninal conspiracy-.\1agisttate framing charges for-offences including. under s. 120-B~. l~P.C.­Whether prior consent under~~ 196A(2), Cr.P.C., rteCessizry.

Tµe police filed charge-sheet against the appellant and" another '"for -c various offences ip connection with the fabrication of a' British passport. Tht3 offences mentioned in the cl]argc·shej!t against the appellant were ss. 419/109, 468 .and 471, J.P.C., and against-the other accused ss. 419 and 471 read with s. 468~ The Magistrate dfd not exatnine any witnesses. but after perming the charge-slieet 'and .bther documents filed bl'fore him under s. 19'3, 4Cr.P.C., framed charges against the~·two~accused and com-mitted them for trial before the Sessi<{nS" Court. The .. charges against the accusecct included the offence under s. 120B, ·J.P.C., the object of the conspiracy being) to commit the non-cognizable offence of forging tl\e .passport. ~ •

The appi:Jlant filed an application in the, High, Court tor quashing the committaf order on the ground that no oonscnt, as required by s. 196A(1). Cr.P.C., having been -obtained, the Magistrate had no jurisdiction to 'take cognizance of the offence of conspiracy. The High Court' dis1nisscd the application.

Dismissing. the apPeaI to· this Court,

HELD: {l) Cognizance takes place when the Magistra\~ takes judi-cial "llotice of ah offence. Therefore, when Magistrate takes cognizante of an 'OffenCe, under s. 190, Cr.P.G. upon police report, prilria facie he doc_s ·SO of the of\en,ces alleged )n the report. (573 .H; 574 A]

1n the prese'tll case the charge-sheet did., not ref~r to or charge ~ithcr of 'the accused \with criminal conspiracy. The' •cognizan'Ce Which the Magistrate took was therefore, .. only of the, offences alleged in the chargc-:>hcet, and it was onJy at the later Stage of ~passing the cQmmittal rorder that he considered that chafge under. ~- 1408 \Vas more appropriate tha1i, that of abctment." (574 F-HJ ·

·(2) Even on .. 'the basis that it is not tl1c sections referred to -in the .charge--sheet that matter, but the offence . .prinza facie disclOsed by the allegations, in the presenl case, the offence 'primarily and. 'essentially' di< closed in the charge-sheet and other documents \Vas one of abetment ot forgery and of the fal~e impcr.onation.· (575 F-H] · ' ..

Therefore, the ·Magistrate [0]did..not take cognizance of the offence under s. 120Jl, J.P.C., .and hence, consent under s. i96A(2) Cr.P.C.," was not .a condition. precedent. (,576 .ll-CJ

t• ~· ••

•• CRIMINAL Ai>PELVATE JuR1smc'r10N : Criminal _Appeal No. 100 of 1969. · ·

[1972] 1 S.C.R.

Appeal by special ieave from rhe judgment !!jnd order dated January 8, 1969 of the Bombay High Court in Criminal Applica-tion No. 1341 of 1968.

C. L. Sareen and J. C. Ta/war, for the appellant.

P. K. Chatterjee and S. P. Nayar, for the re&pQn.dent.

The Judgment of the Court was delivered by

Shelat, J. The appellant and one Bakshi Singh Sunder Singh were accused No. 2 and accused No. 1 respecuvely m Lile wu1-mittal proceedings before the Presidency Magistrate, 28th Court, Greater Bombay. This appeal, by special leave, is directed against the judgment of the High Court of Bombay refusing to qua'h the order of committal passed by the learned Magistrate.

The facts relevant to this appeal are few and may first be stated.

On October 31, 1963, one Jivansingh Uttam Singh obtained British passport bearing No. 183459 at Nairobi. On the strength of that passport he was returning to India with his tamily. On his way he died on board the ship. According to the prosecution that passport came into the hands of the appel-lant. Bakshi Singh desired to go to the United Kingdom, but had no passport. The appellant agreed to arrange his journey and also for that purpose to obtain passport for him. The allegation was that the appellant prepared an applica-tion for visa in the name of Bakshi Singh. It was further alleged that with view to procure the said visa the photograph of the said deceased Jivansingh was removed from the said pass-port and that of Bakshi Singh substituted. The visa having in this fashion been obtained, Bakshi Singh journeyed to the United Kingdom having on his way made some intermediate halts. The British authorities suspected that the passport was forged document and repatriated Bakshi Singh to India. On his arrival he was handed over to the Special Police, Bombay. The Special Police carried out investigation in the course of which they recorded statements of certain witnesses including that of Tanna Singh, the younger brother of Bakshi Singh. On completion of the investigation, th'< police filed charge-sheet before the learned Magistrate. That charge-sheet is not before us. But counsel for the appellant informed us that Bakshi Singh was therein charged under secs. 419 and 471 read with sec. 468, and the appellant was charged under secs. 419 I I 09, 468 and 471 of the Penal Code. Counsel also informed us that the Magistrate did not examine any witnesses, during the committal

proceedings but on perusal of the charge-sheet and the docu-ments filed before him under sec. 173 of the Code of Criminal Procedure· he framed the charges and committed, by his order dated September 13, 1968, Bakshi Singh and the appellant for trial before the Sessions Court. By that order he directed the said Bakshi Singh to stand his trial under secs. 120B, 419, 467 and 471 read with sec. 467, and the appellant under secs. 120B and 467 of the Penal Code. The offence of criminal conspiracy charged under sec. 120B was that the said Bakshi Singh and the appellant had conspired to forge the said passport for the use of the said Bakshi Singh. In the High Court various contentions were raised on behalf of the appellant in support of his application under sec. 561A of the Code of Criminal Procedure including that under sec. 196A (2). That contention was that no consent as required by sec. 196~ ( 2) hav)ng been first obtained, the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy, and therefore, the committal order was without jurisdiction and had 0 to be quashed. In this appeal we are concerned only with that contention as the special leave granted to the appellant has been limited to that ground alone.Sub-sec. 2 of sec. 196A, which is relevant to the present case, provides that no court shall take cognizance of the offence of criminal conspiracy punishable under sec. 120B of the Penal Code in case inter alia where the object of such conspiracy is to commit any non-cognizable offence. There is no doubt that the charge, as framed by the Magistrate and for which he com-mitted the appellant and Bakshi Singh to stand their trial before the Sessions Court, was for criminal conspiracy, the object of which was to forge the said passport, non-cognizable offence. In respect of that offence, sec. 196A(2) would undoubtedly apply. What that section prohibits is taking cognizance of an offence of criminal conspiracy unless consent to the initiation of proceedings against the person charged with it has been first obtained.

As provided by sec. 190 of the Code of Criminal Procedure, Magistrate may take cognizance of an offence either (a) upon receiving complaint, or (b) upon police report, or ( c) upon information received from person other than police officer or even upon his own, information or suspicion that such an offence has been committed. As has often been held taking cog-nizance does not involve any formal action or indeed action of any kind but occurs as soon as Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at point when magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes

cognizanc_e of an. offence on complaint or on police report, . A' or upon mformallon of person other than police officer. Therefore, when magistrate takes cognizance of an offence upon police report, prima facie he does so of the offence or offences disclosed in such report.

It is not in dispute that the charge-sheet submitted by the police officer for the purpose of initiation of proceedings by the magistrate was for offences under secs. 419 and 4 71 read with sec. 468 against Bakshi Singh and under secs. 419/109, 4 71 and 468 against the appellant. The charge-sheet admittedly did not refer to or charge either of them with criminal conspiracy under sec. ! 20B. Prima facie it is not possible to say that at the stage when the police filed the charge-sheet the Magistrate took cogni-zance of the offence under sec. 120B, for, that was not the offence alleged in the charge-sheet to have been committed by either of the two accused persons.

True it is that the Magistrate ultimately drew up charges which included the offence under sec. 120B, the object of which was to forge the passport, an offence under sec. 467. The Magis-trate also did not consider it necessary to examine any witnesses and frame the charges on perusal of the ~barge-sheet submitted to him by the police, the statement of witnesses recorded by the police during their investigation and such other documents as were filed under sec. 173 of the Code of Criminal Procedure before him. The materials before him, therefore, were the same as were before the police officer who had filed the charge-sheet. But while drawing up the charges and passing his order of com-mittal, the Magistrate cc•!lSidered that though the charge-sheet filed before him alleged the commission of offences under secs. 419/109, 4 71 and 468, the proper charge on the materials before him, although they were the same as before the police officer, warranted charge of criminal conspiracy for forging passport. It is quite clear, however, that the cognizance which he took was of the offences alleged in the charge'.sheet because it was in respect of those offences that the police had applied to him to ini-tiate proceedings against Bakshi Singh and the appellant and not for the offence under sec. 120B. It was at later stage, i.e., at the time of passing the committal order that he considered that charge under sec. l 20B was the more appropriate charge and not charge under sec. 109 of the Penal Code. . That being so, it must be held that the Magistrate took cognizance of the offence of abetment of an offence of forgery and impersonation so far as the appellant was concerned and not of the offence of criminal conspiracy, and therefore, sec. 196A(2) did not apply.

Counsel in this connection relied on certain observations made in minority judgment of S. K. Das, J., in Pramatha Nath

Ta/uqdar v. Saroj Ranjan Sarkar.(') The question: involved: there was, whether second complaint could be entertained by. magistrate who or whose predecessor had on the same or similar allegations dismissed previous complaint,. and if so, in what circumstances should such complaint be entertained. Arising: out of this question contention was raised whether on the com-B plaint, as it was framed, the Magistrate had the j\1risdiction to take cognizance of the offences alleged in the complaint in the absence of sanction under sec. 196A. The second complaint alleged offences under secs. 467 and 471 read with sec; 109 of the Penal Code. But in para, 5 thereof, there was an allegation as to criminal conspiracy and it was on the basis of that allegation that sec. 196A(2) was sought to be involved. It was in this connection that the learned Judge at page 315 of the report observed:

"It would not be proper to decide the question of sanction merely by taking into consideration the offences mentioned in the heading or the use of the expression "criminal conspiracy" in para 5. The proper test should be whether the allegations made in the petition of com-plaint disclosed primarily and essentially an offence or offences for which consent in writing would be neces-sary to the initiation of the proceedings within the meaning of s. 196A(2) of the Code of Criminal Pro-cedure. It is from that point of view that the petition of complaint must be examined."

The learned Judge ultimately held that though the offence of criminal conspiracy was alluded to in para 5 of the said com-plaint, the offence "primarily and essentially" charged was abet-ment by conspiracy under sec. 109 of the Penal Code, and there-F fore. no consent under sec. 196A(2) was required. In Biroo Sardar v. Arif/([2 ]) the view also taken was that it is not the· sections referred to which matter but the offence prima facie disclosed. Following that decision, the High Court of Bombay in Ramchandra v. Emperor(') observed that the questibn whe-ther sanction is necessary or not depends not on the sections referred to in complaint but the offence prima facie disclosed· by the facts alleged in it.

It is clear from the charge-sheet submitted to the magistrate that the offence of criminal conspiracy was not even referred to. The offence "primarily and essentially" alleged therein was one of abetment of forgery under secs. 468· and 471 and of false·

(I) [1962] Supp. 2 S.C.R, 297.

(2) AJ.R. 1925 Cal. 579.

impersonation under sec. 419 read with sec. 109. Assuming that lhe Magistrate before taking cognizance had persued the state· ments of witnesses recorded by the police during investigation, it was conceded by counsel, after he himself had gone through them from the record, that none of the witnesses had alleged therein either directly or indirectly of the appellant having enter-. ed into criminal conspiracy with Bakshi Singh for forging the passport. It cannot be disputed that the charge-sheet also prima facie disclosed the offence of abetment. That being so, it is impossible to sustain the argument that the Magistrate took cogni-zance of the offence under sec. 120B, and therefore, consent under sec. 196A ( 2) was required as condition precedent or that the committal order and the proceedings for committal which he took wefo vitiated for want of such consent.

The appeal, therefore, fails and is dismissed.

Appeal dismissed.