Taking Cognizance of an Offence - The Disillusionment Continues
The essential facts discernible from a nascent verdict of the Supreme Court of India in Crl. Appeal No. 844 of 2015 (S.R. Sukumar V/s S. Sunaad Raghuram) (Justice T.S.Thakur and Justice R.Banumathi- written by Justice Banumathi) handed down (as reportable) on 2-7-2015, are as follows:-
|09-5-2007:||A complaint was filed by one Sunaad Raghuram before the Addl. Chief Metropolitan Magistrate against one Sukumar (A1) and his mother (A2) alleging the commission of offences punishable under sections 120-B, 499 and 500 IPC.|
|18-5-2007:||The Magistrate took cognizance of the offences under Section 200 CrPC and recorded in part the sworn statement of the complainant and adjourned the case to 23-5-2007 for want of time. The above proceedings were recorded by the Magistrate in the proceedings sheet.|
|23-5-2007:||Recording of the sworn statement of the complainant was completed. The matter was then adjourned to 24-5-2007 on request.|
|24-5-2007:||The complainant filed an application for amendment of the complaint by introducing a subsequent event constituting a new cause of action by seeking to incorporate 2 more paragraphs in the complaint.|
|24-5-2007:||The Magistrate allowed the application for amendment holding that he had not taken cognizance of the offences earlier. He then took cognizance of the offences.|
|26-6-2007:||The Magistrate permitted the complainant to carry out the amendment and directed the issue of process against A1 alone.|
|2007:||Aggrieved by the above order A1 approached the High Court by filing a petition (presumably under section 482 CrPC) praying for quashing the order dated 21-6-2007 passed by the Magistrate contending, inter alia, that there was no provision in the CrPC for amendment of the complaint and that, at any rate, the Magistrate went wrong in allowing the application after he had already taken cognizance of the offence.|
|21-1-2012:||The High Court dismissed the petition holding that-|
|i)||before allowing the amendment, the Magistrate had not taken cognizance of the offence.|
|ii)||no prejudice was caused to the accused.|
|iii)||if the amendment was not allowed, then it would have resulted in multiplicity of proceedings between the parties.|
|2012:||A1 preferred SLP (Crl) No.4813/2012 before the Hon’ble Supreme Court. Leave was granted and the appeal was numbered as Criminal Appeal No. 844/2015. :|
|05/01/15||A two - Judge Bench of the Supreme Court (2015(3) KHC SN 15(SC) dismissed the criminal Appeal. The following propositions of law/ observations made by the Apex Court have surprised the author:-|
|A)||“Merely because the complainant was examined that does not mean that the Magistrate has taken cognizance of the offence” (Paragraph 8).|
|B)||“Only upon examination of the complainant, the Magistrate will proceed to apply the Judicial mind whether to take cognizance of the offence or not (Paragraph – 11).|
|C)||“Under Section 200 CrPC, when the complainant is examined, the Magistrate cannot be said to have ipso facto taken cognizant, when the Magistrate was merely gathering the material on the basis of which he will decide whether a prima facie case is made out for taking cognizance of the offence or not” (Paragraph 11).|
|D)||“It is wrong to contend that the Magistrate has taken cognizance of the case even on 18-5-2007 when the Magistrate has recorded the statement of complainant/respondent in part and even when the Magistrate has not applied his judicial mind” (Paragraph 16).|
|E)||“Even though the order dated 18-5-2007 reads “cognizance taken under Section 200 CrPC”, the same is not grounded in reality and actual cognizance was taken only later” (Paragraph 16).|
- For the sake of argument we will assume that it is permissible to allow amendment of the averments in a complaint so long as the amendment does not change the character of the original complaint. Even then, what was the need or scope for examining the question as to whether cognizance of the offence was or was not taken ? If as a matter of fact the amendment sought is one which can be allowed since it does not change the foundation of the case as originally pleaded, can it not be allowed even after cognizance of the offence has been taken? Was not the enquiry regarding the factum and the stage of taking cognizance of the offences, an avoidable exercise?
- Now let us examine the soundness of the propositions of law/observations referred to above. Although the learned Judges have adverted to the binding and oft quoted passages from the decisions of the Apex Court itself, such as R.R.Chari V/s State of Uttar Pradesh -1951 SCR 312; Jamuna Singh and others v/s Bhadai Sah - (1964) 5 SCR 37; Nirmaljit Singh Hoon v/s State of West Bengal and Another - (1973) 3 SCC 753; Devarapally Lakshminarayana Reddy and others v/s Narayana Reddy and others - AIR 1976 SC1072; CREF Finance Ltd v/s Shree Shanthi Hornes (P) Ltd. and Another - (2005) 7SCC4 67; S.K. Sinha, Chief Enforcement Officer v/s Videocon International Ltd and others - (2008) 2 SCC 492, and Subrahmaniam Swamy v/s Manmohan Singh and Another - (2012) 3 SCC 64, it is respectfully submitted that the essence of the ratio decidendi in those decisions has either been missed or conveniently sculled over by the learned Judges unmindful of the resultant incertitude and confusion. The settled position has been unsettled and chaos has been injected into the consistent, stable and immutable situation. The law, as crystallised through the various rulings of the Apex Court, is very clear on the point. If the Magistrate applies his mind for the purpose of proceeding under section 200 and the subsequent sections of Chapter XV of CrPC then he can be said to have taken cognizance of the offences as made out in the complaint. But, if 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) CrPC or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.
- The above proposition of law laid down by Justice Das Gupta of the Culcutta High Court in Superintendent and Remembrances of Legal Affairs, West Bengal v/s Abani Kumar Banerji (AIR 1950 Cal 437) was quoted with approval by the three - Judge Bench of the Apex Court in R.R. Chari (supra) and the other decisions adverted to by the learned Judges in the said decision of questionable authority. The decision in Devarapally Lakshminarayana Reddy (supra) was also rendered by a three - Judge Bench, Another three - Judge Bench of the Supreme Court in Gopal Das Sindhi v/s State of Assam - AIR 1961 SC 986 also reiterated the above legal position. One more decision which has affirmed the above legal position but which was not adverted to by the learned Judges, is Narayanadas Bhagwandas Madhavadas v/s State of West Bengal - AIR 1959 SC 1118. The distinction between Chapter XII CrPC dealing with the pre-cognizance stage and Chapter XV CrPC dealing with post-cognizance stage, was succinctly delineated by the Supreme Court in Tula Ram v/s Kishor Singh [(1977) 4 SCC 459]. The judicial act of taking cognizance of the offence should not be confused with the subsequent act of issuing process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in the complaint or Police report or in the other information. The issue of process is at a subsequent stage. (Vide CREF Finance Ltd v/s Shree Shanthi Homes (P) Ltd and Another - (2005) 7 SCC 467 and State of Karnataka v/s Pastor P. Rajan (2006) 6 SCC 728). (See in this connection the illuminating article authored by Sri. M.A. Rashid, Founder; LiveLaw titled “Anil Kumar’s case (2013) 10 SCC 705 violates binding precedents”)
- 5. Thus, if the Magistrate after applying his judicial mind to the avernments in the complaint decides to record the sworn statement of the complainant under section 200 CrPC (i.e. decides to proceed under Chapter XV CrPC) he can legitimately be said to have taken cognizance of the offence. Even the actual recording of the sworn statement under section 200 CrPC. is not necessary. For instance, we will take a hypothetical situation:
After applying his judicial mind to the factual matrix recited in the complaint the Magistrate records the following in the “proceedings sheet” at 5 pm.-
“Complainant present. For want of time, the case is adjourned to tomorrow for recording the sworn statement of the complainant and his witnesses, if any”.
- Here the Magistrate has decided to proceed under Chapter XV CrPC. Hence the Magistrate can legitimately be said to have taken cognizance of the offence. He cannot thereafter retrace his steps back to the pre-cognizance stage and forward the complaint to the Police under Section 156(3) CrPC - (See Adalat Prasad v/s Rooplal Jindal - [(2004) 7 SCC 338].
I am, therefore, with due respect, of the considered opinion that the two - judge Bench in Sukumar’s case was wrong in laying down the propositions of law marked as A to E in paragraph 1 above and they tend to confuse, if not mislead, the entire hierarchy of courts particularly the Magistrates in the whole nation. The said verdict deserves to be over-ruled at the earliest.
Justice V.Ramkumar is a Former Judge, High Court of Kerala and Chairman, Advisory Board, Kerala Anti-social Activities Prevention Act