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TMI Blog1987 (11) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-Divisional Magistrate of Chickballapur had gone to Kolar and that he would come back to the Taluk Office at Sidlaghatta by 6-00 p.m. According to him, the P.S.I. asked him to wait till that time. According to the complainant, he waited for the Sub Divisional Magistrate in Sidlaghatta Taluk Office. According to him, the Sub Divisional Magistrate came to the Taluk Office at Sidlaghatta at 7-45 p.m. According to him, the Sub Divisional Magistrate took his seat in the Tahsildar's office. According to him, after the Sub Divisional Magistrate took his seat in the Taluk Office, he presented the vakalath and the application for bail and the affidavit of the sureties. According to him, he entered the Taluk office after showing all the respect to the Officer. According to him, when he presented the application for bail, vakalath and the affidavit of the sureties, the Sub Divisional Magistrate bearing name Mr. Mahadevaiah is said to have shouted at him. According to him, he remained there standing. When he continued to stand there, the accused is said to have shouted out According to him, the shouting of the said words by the accused in singular was resorted to by the accused only wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where on a private complaint the Magistrate straightaway proceeded to examine the complainant and his witnesses and thereafter came to the conclusion that it was a fit case to take cognizance of the offence against the accused, it is opposed to the mandatory provision of law. Where there is no indication whether in fact the Magistrate has applied his mind to the relevant facts narrated in the application and whether it is a fit case wherein he could pass an order under Section 94 Cr.P.C. the order suffers from vagueness and it is liable to be set aside. 8. The Supreme Court also in GOPAL DAS SINDHI AND OTHERS v. STATE OF ASSAM AND ANOTHER AIR 1961 SC 986 has stated in para 7 on page 988 as :- When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station, Gauhati, for investigation. Section 156(3) states Any Magistrate empowered under Section 190 may order such investigation as above mentioned. Mr. Thomas was certainly a Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party. It has been stated in para 7 as :- The expression taking cognizance is not defined in the Code of Criminal Procedure. In its broad and literal sense, it means taking notice of an offence and would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. Before it can be said that any Magistrate has taken cognizance of any offence under Section 190 Cr.P.C. he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XIV. When the Magistrate applies his mind not for the above purpose but for taking action of some other kind eg., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence; (vide 1951CriLJ775 ). Before a Magistrate can be said to have taken cognizance of an offence, he must have not only applied his mind to the contents of the complaint or the police report or the information presented before him, but mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations in the complaint and after finding that the allegations made in the complaint were sufficient enough to follow the next procedure i.e., recording of sworn statement, he adjourned the case and on the next date he recorded the sworn statement of the complainant. Therefore, we find that the Magistrate has followed the procedure as enjoined on him by Section 200. Therefore, recording of sworn statement and the subsequent issue of process are perfectly legal and in accordance with law. Therefore reading as a whole Section 200 Cr.P.C. and Section 190 Cr.P.C. and in view of the said decision, I am firmly of the opinion that the act of the Magistrate taking cognizance of the offence must precede the act of recording the sworn statements of the complainant and his witnesses if any. If the Magistrate proceeds to record the sworn statements of the complainant and his witnesses without taking cognizance of the offence, the subsequent act of recording the sworn statements of the complainant and his witnesses and the order of issuing process as a consequence thereof would be bad at law. But if the circumstances in the case go to indicate that the Magistrate applied his mind to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The order sheet only shows that the Magistrate was satisfied with the statement made by the complainant that the complaint should not be referred to the police, because they would not carry out any investigation. Perhaps the said statement made by the complainant would go to show that he had no faith in police. There is nothing in the complaint or in the order sheet to show that the Magistrate even had chosen to go through the complaint, before he proceeded to record the sworn statements of the complainant and his witnesses. The later portion of the order sheet would go to show that only after recording the sworn statements of the complainant and his witnesses and after going through the same, he took cognizance of the offences and also proceeded to issue process against the accused. Therefore in this case, the act of taking of cognizance of the offences contemplated by Sections 190 and 200 Cr.P.C. and the order of issue of process contemplated under Section 204 Cr.P.C. were simultaneous. Therefore the Magistrate committed an error in not taking cognizance of the offence before he proceeded to record the sworn statements of the complainant and his two witnesses. 11. In other wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Commissioner and Sub-Divisional Magistrate, Chickballapur Sub Division, Kolar District. It appears to be a misdescription of the accused so far as the revision is concerned. But the fact remains that A. Mahadeva is a party to the present revision. It is hoped that under such circumstances the State ought not to have evinced interest in the matter. It ought to have left the matter to the accused Mahadeva only. The State Public Prosecutor submitted that the State was misled as Mahadevaiah had been described in the complaint itself as Sub Divisional Magistrate. But whatever be the reason, the State ought not to have filed the revision as the complaint has been filed describing the accused as A. Mahadeva. The other contentions raised by the State Public Prosecutor regarding want of sanction contemplated by Section 197 Cr.P.C. is not decided in this case, as the matter is disposed of only on the said technical ground. The other contentions also have not been decided in this case and they are kept open. 14. In the result, the order passed by the Magistrate is set aside. The revision is allowed. The matter is sent back to the Magistrate for fresh disposal in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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