Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1347 OF 2010
Mehmood Ul Rehman … Appellant (s)
Versus
Khazir Mohammad Tunda and others … Respondent (s)
WITH
CRIMINAL APPEAL NO. 1348 OF 2010
Safaraz Pathan and another … Appellant (s)
Versus
Khazir Mohammad Tunda and others … Respondent (s)
J U D G M E N T
KURIAN, J.:
1. Cognizance of an offence is taken by the Magistrate
under Chapter XIV Section 190 of The Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘CrPC’). The Chapter
deals with “Conditions Requisite For Initiation of Proceedings”.
Signature Not Verified
The Magistrate is empowered to take cognizance of an offence
Digitally signed by
Jayant Kumar Arora
Date: 2015.03.31
17:04:29 IST
Reason:
under Section 190(1)(a) of CrPC upon receiving a complaint of
facts which constitute such offence. Chapter XV CrPC deals with
1
the further procedure for dealing with “Complaints to
Magistrate”. Under Section 200 of CrPC, the Magistrate, taking
cognizance of an offence on a complaint, shall examine upon
oath the complainant and the witnesses, if any, present and the
substance of such examination should be reduced to writing
and the same shall be signed by the complainant, the witnesses
and the Magistrate. Under Section 202 of CrPC, the Magistrate,
if required, is empowered to either inquire into the case himself
or direct an investigation to be made by a competent person
“for the purpose of deciding whether or not there is sufficient
ground for proceeding”. If, after considering the statements
recorded under Section 200 of CrPC and the result of the inquiry
or investigation under Section 202 of CrPC, the Magistrate is of
the opinion that there is no sufficient ground for proceeding, he
should dismiss the complaint, after briefly recording the reasons
for doing so. Chapter XVI CrPC deals with “Commencement of
Proceedings before Magistrate”. If, in the opinion of the
Magistrate taking cognizance of an offence, there is sufficient
ground for proceeding, the Magistrate has to issue process
under Section 204(1) of CrPC for attendance of the accused.
2. In the instant case, we are called upon to decide the
scope of the ‘opinion of Magistrate’ on sufficient ground for
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proceeding to issue process to the accused. The question has
arisen in the background of an order passed by the Judicial
Magistrate First Class, Srinagar on 03.04.2007 on a complaint
filed by the first respondent herein under Section 500 of Ranbir
Penal Code, 1932 [Section 500 the Indian Penal Code (45 of
1860)]. The operative portion of the order reads as follows:
“Perused the complaint, and the statements
recorded. In the first instance of proceedings,
let bail warrant to the tune of Rs.15,000/- be
issued against the alleged accused persons,
with direction to accused persons to cause their
appearance before this court on 22.4.07, to
answer the material questions.”
3. According to the appellants, the complaint filed by the
first respondent did not constitute an offence and hence they
were not liable to be called by the Magistrate to defend the
criminal proceedings. Thus, aggrieved, the appellants filed a
petition to quash the proceedings initiated by the Magistrate by
order dated 03.04.2007.
4. The High Court, by the impugned order, rejected the
petition holding that the veracity of allegations made in the
complaint filed by the first respondent before the Magistrate “is
a question of evidence and can be settled only when the
evidence is adduced”.
3
5. Heard Shri Soli J. Sorabjee, learned Senior Counsel
appearing for the appellants in Criminal Appeal No. 1347 of
2010 and appearing for the respondents in Criminal Appeal No.
1348 of 2010. Ms. Vibha Datta Makhija, learned Senior Counsel
appeared for the respondents in Criminal Appeal No. 1347 of
2010 and for the appellants in Criminal Appeal No. 1348 of
2010. Ms. S. Janani, learned Counsel appeared for the
complainant/respondent(s) in both Criminal Appeal Nos. 1347 of
2010 and 1348 of 2010.
6. Though the learned Senior Counsel made an attempt to
canvas on the merits of the matter as well, we do not find it
necessary and it is not proper also at this stage to deal with the
same. However, the contention that the Magistrate has not
even formed an opinion as to whether the allegations in the
complaint would constitute an offence, when considered along
with the statements recorded under Section 200 of CrPC,
requires consideration.
7. The question is: how does a Magistrate, while taking
cognizance of an offence on complaint, indicate his satisfaction
regarding the ground for proceeding against the accused.
4
8. In Pepsi Foods Limited and another v. Special
1
Judicial Magistrate and others , this Court has held that
exercise under Section 204 of CrPC of summoning an accused in
a criminal case is a serious matter and that the process of
criminal law cannot be set into motion in a mechanical manner.
It was also held that the order of the Magistrate summoning the
accused must reflect that he has applied his mind to the facts of
the case and the law governing the issue. To quote:
“28. Summoning of an accused in a criminal
case is a serious matter. Criminal law cannot be
set into motion as a matter of course. It is not
that the complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate summoning
the accused must reflect that he has applied his
mind to the facts of the case and the law
applicable thereto. He has to examine the
nature of allegations made in the complaint and
the evidence both oral and documentary in
support thereof and would that be sufficient for
the complainant to succeed in bringing charge
home to the accused. It is not that the
Magistrate is a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. The Magistrate has
to carefully scrutinise the evidence brought on
record and may even himself put questions to
the complainant and his witnesses to elicit
answers to find out the truthfulness of the
allegations or otherwise and then examine if
any offence is prima facie committed by all or
any of the accused.”
1
(1998) 5 SCC 749
5
9. In taking recourse to such a serious process, this Court
has consistently held that the Magistrate must apply his mind
on the allegations on commission of the offence. In Darshan
2
Singh Ram Kishan v. State of Maharashtra , it was held
that the process of taking cognizance does not involve any
formal action, but it occurs as soon as the Magistrate applies his
mind to the allegations and thereafter takes judicial notice of
the offence. To quote:
“8. As provided by Section 190 of the Code
of Criminal Procedure, a Magistrate may take
cognizance of an offence either, ( a ) upon
receiving a complaint, or ( b ) upon a police
report, or ( c ) upon information received from a
person other than a police officer or even upon
his own information or suspicion that such an
offence has been committed. As has often been
held, taking cognizance does not involve any
formal action or indeed action of any kind but
occurs as soon as a Magistrate applies his mind
to the suspected commission of an offence.
Cognizance, therefore, takes place at a point
when a Magistrate first takes judicial notice of
an offence. This is the position whether the
Magistrate takes cognizance of an offence on a
complaint, or on a police report, or upon
information of a person other than a police
officer. Therefore, when a Magistrate takes
cognizance of an offence upon a police report,
prima facie he does so of the offence or
offences disclosed in such report.”
2
(1971) 2 SCC 654
6
10. In one of the early decisions, Emperor v. Sourindra
3
Mohan Chuckerbutty , a Division Bench of the Calcutta High
Court has taken the same view … “taking cognizance does not
involve any formal action, or indeed action of any kind, but
occurs as soon as a Magistrate, as such, applies his mind to the
suspected commission of an offence”.
11. In Smt. Nagawwa v. Veeranna Shivalingappa
4
Konjalgi and others , this Court took the view that in the
process of taking cognizance and issue of process to the
accused, Magistrate has to form an opinion that a prima facie
case is made out against the accused. At that stage, the
Magistrate is also competent to consider whether there are
inherent improbabilities appearing on the face of the complaint
or in the evidence led by the complainant. To quote:
“5. … It is true that in coming to a decision as
to whether a process should be issued the
Magistrate can take into consideration inherent
improbabilities appearing on the face of the
complaint or in the evidence led by the
complainant in support of the allegations but
there appears to be a very thin line of
demarcation between a probability of conviction
of the accused and establishment of a prima
facie case against him. The Magistrate has been
given an undoubted discretion in the matter and
the discretion has to be judicially exercised by
him. Once the Magistrate has exercised his
discretion it is not for the High Court, or even
3
(1910) I.L.R. Vol.XXXVII, Cal. 412
4
(1976) 3 SCC 736
7
this Court, to substitute its own discretion for
that of the Magistrate or to examine the case on
merits with a view to find out whether or not the
allegations in the complaint, if proved, would
ultimately end in conviction of the accused. …”
5
12. In Kishun Singh and Others v. State of Bihar , this
Court reiterated the position that where, on application of mind,
the allegations in the complaint, according to the Magistrate, if
proved, would constitute an offence, cognizance is to be is
taken of the offence so as to proceed further against the
accused. To quote:
“7. … Even though the expression ‘take
cognizance’ is not defined, it is well settled by a
catena of decisions of this Court that when the
Magistrate takes notice of the accusations and
applies his mind to the allegations made in the
complaint or police report or information and on
being satisfied that the allegations, if proved,
would constitute an offence decides to initiate
judicial proceedings against the alleged
offender he is said to have taken cognizance of
the offence. It is essential to bear in mind the
fact that cognizance is in regard to the offence
and not the offender. Mere application of mind
does not amount to taking cognizance unless
the Magistrate does so for proceeding under
Sections 200/204 of the Code …”
13. In State of W.B. and another v. Mohd. Khalid and
6
others , it has been held by this Court that while exercising the
power to take cognizance, a Magistrate has to see whether
5
(1993) 2 SCC 16
6
(1995) 1 SCC 684
8
there is any basis for initiating judicial proceedings. At
paragraph-43, it has been held as follows:
“43. … Section 190 of the Code talks of
cognizance of offences by Magistrates. This
expression has not been defined in the Code. In
its broad and literal sense, it means taking
notice of an offence. This 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. The word ‘cognizance’ indicates the
point when a Magistrate or a Judge first takes
judicial notice of an offence. It is entirely a
different thing from initiation of proceedings;
rather it is the condition precedent to the
initiation of proceedings by the Magistrate or
the Judge. Cognizance is taken of cases and not
of persons.”
14. In Kanti Bhadra Shah and another v. State of
7
W.B. , this Court has taken the view that it is quite unnecessary
to write detailed orders at the stage of issuing process.
15. In U.P. Pollution Control Board v. Mohan Meakins
8
Limited and others , the position was further clarified that it
was not necessary to pass a speaking order at the stage of
taking cognizance.
7
(2000) 1 SCC 722
8
(2000) 3 SCC 745
9
16. In Deputy Chief Controller of Imports and Exports
9
v. Roshanlal Agarwal and others , this Court considered the
situation where the impugned order passed by the Magistrate
read as follows: “Cognizance taken. Register the case. Issue
summons to the accused”. It was held that “at the stage of
issuing the process to the accused, Magistrate is not required to
record reasons”. Kanti Bhadra Shah (supra) and U.P.
Pollution Control Board (supra) were also referred to in the
said decision.
17. In Jagdish Ram v. State of Rajasthan and
10
another , the law was restated holding that at the stage of
issuing process to the accused, the Magistrate is not required to
record reasons. However, he has to be satisfied that there is
sufficient ground for proceeding and such satisfaction is not
whether there is sufficient ground for conviction. To quote:
“10. … The taking of cognizance of the
offence is an area exclusively within the domain
of a Magistrate. At this stage, the Magistrate
has to be satisfied whether there is sufficient
ground for proceeding and not whether there is
sufficient ground for conviction. Whether the
evidence is adequate for supporting the
conviction, can be determined only at the trial
and not at the stage of inquiry. At the stage of
issuing the process to the accused, the
Magistrate is not required to record reasons.”
9
(2003) 4 SCC 139
10
(2004) 4 SCC 432
10
18. In S.K. Sinha, Chief Enforcement Officer v.
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Videocon International Limited and others , this Court
held that taking cognizance has no esoteric or mystic
significance in criminal law and it connotes that a judicial notice
is taken of an offence, after application of mind. To quote:
“19. The expression “cognizance” has not
been defined in the Code. But the word
(cognizance) is of indefinite import. It has no
esoteric or mystic significance in criminal law. It
merely means “become aware of” and when
used with reference to a court or a Judge, it
connotes “to take notice of judicially”. It
indicates the point when a court or a Magistrate
takes judicial notice of an offence with a view to
initiating proceedings in respect of such offence
said to have been committed by someone.
20. “Taking cognizance” does not involve any
formal action of any kind. It occurs as soon as a
Magistrate applies his mind to the suspected
commission of an offence. Cognizance is taken
prior to commencement of criminal
proceedings. Taking of cognizance is thus a sine
qua non or condition precedent for holding a
valid trial. Cognizance is taken of an offence and
not of an offender. Whether or not a Magistrate
has taken cognizance of an offence depends on
the facts and circumstances of each case and
no rule of universal application can be laid down
as to when a Magistrate can be said to have
taken cognizance.”
11
(2008) 2 SCC 492
11
19. In U.P. Pollution Control Board v. Dr. Bhupendra
12
Kumar Modi and another , at paragraph-23, the position has
been discussed as follows:
“23. It is a settled legal position that at the
stage of issuing process, the Magistrate is
mainly concerned with the allegations made in
the complaint or the evidence led in support of
the same and he is only to be prima facie
satisfied whether there are sufficient grounds
for proceeding against the accused.”
20. In Bhushan Kumar and another v. State (NCT of
13
Delhi) and another , the requirement of application of mind
in the process of taking cognizance was reiterated. It was
further held that summons is issued to notify an individual of his
legal obligation to appear before the Magistrate as a response
to the alleged violation of law. It was further held that in the
process thus issued, the Magistrate need not explicitly state the
reasons. Paragraphs-11 to 13 contain the relevant discussion,
which read as follows:
“11. In Chief Enforcement Officer v.
3
Videocon International Ltd. (SCC p. 499, para
19) the expression “cognizance” was explained
by this Court as
“it merely means ‘become
aware of’ and when used with reference to a
court or a Judge, it connotes ‘to take notice of
judicially’. It indicates the point when a court or
a Magistrate takes judicial notice of an offence
12
(2009) 2 SCC 147
13
(2012) 5 SCC 424
12
with a view to initiating proceedings in respect
of such offence said to have been committed by
someone.” It is entirely a different thing from
initiation of proceedings; rather it is the
condition precedent to the initiation of
proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of
persons. Under Section 190 of the Code, it is the
application of judicial mind to the averments in
the complaint that constitutes cognizance. At
this stage, the Magistrate has to be satisfied
whether there is sufficient ground for
proceeding and not whether there is sufficient
ground for conviction. Whether the evidence is
adequate for supporting the conviction can be
determined only at the trial and not at the stage
of enquiry. If there is sufficient ground for
proceeding then the Magistrate is empowered
for issuance of process under Section 204 of the
Code.
12. A “summons” is a process issued by a
court calling upon a person to appear before a
Magistrate. It is used for the purpose of
notifying an individual of his legal obligation to
appear before the Magistrate as a response to
violation of law. In other words, the summons
will announce to the person to whom it is
directed that a legal proceeding has been
started against that person and the date and
time on which the person must appear in court.
A person who is summoned is legally bound to
appear before the court on the given date and
time. Wilful disobedience is liable to be
punished under Section 174 IPC. It is a ground
for contempt of court.
13. Section 204 of the Code does not
mandate the Magistrate to explicitly state the
reasons for issuance of summons. It clearly
states that if in the opinion of a Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding, then the
summons may be issued. This section mandates
the Magistrate to form an opinion as to whether
there exists a sufficient ground for summons to
13
be issued but it is nowhere mentioned in the
section that the explicit narration of the same is
mandatory, meaning thereby that it is not a
prerequisite for deciding the validity of the
summons issued.”
21. The extensive reference to the case law would clearly
show that cognizance of an offence on complaint is taken for
the purpose of issuing process to the accused. Since it is a
process of taking judicial notice of certain facts which constitute
an offence, there has to be application of mind as to whether
the allegations in the complaint, when considered along with
the statements recorded or the inquiry conducted thereon,
would constitute violation of law so as to call a person to appear
before the criminal court. It is not a mechanical process or
matter of course. As held by this Court in Pepsi Foods
Limited (supra), to set in motion the process of criminal law
against a person is a serious matter.
22. Under Section 190(1)(b) of CrPC, the Magistrate has the
advantage of a police report and under Section 190(1)(c) of
CrPC, he has the information or knowledge of commission of an
offence. But under Section 190(1)(a) of CrPC, he has only a
complaint before him. The Code hence specifies that … “a
14
complaint of facts which constitute such offence”. Therefore, if
the complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall not take
cognizance under Section 190(1)(a) of CrPC. The complaint is
simply to be rejected.
23. The steps taken by the Magistrate under Section 190(1)
(a) of CrPC followed by Section 204 of CrPC should reflect that
the Magistrate has applied his mind to the facts and the
statements and he is satisfied that there is ground for
proceeding further in the matter by asking the person against
whom the violation of law is alleged, to appear before the court.
The satisfaction on the ground for proceeding would mean that
the facts alleged in the complaint would constitute an offence,
and when considered along with the statements recorded,
would, prima facie , make the accused answerable before the
court. No doubt, no formal order or a speaking order is required
to be passed at that stage. The Code of Criminal Procedure
requires speaking order to be passed under Section 203 of CrPC
when the complaint is dismissed and that too the reasons need
to be stated only briefly. In other words, the Magistrate is not to
act as a post office in taking cognizance of each and every
complaint filed before him and issue process as a matter of
15
course. There must be sufficient indication in the order passed
by the Magistrate that he is satisfied that the allegations in the
complaint constitute an offence and when considered along
with the statements recorded and the result of inquiry or report
of investigation under Section 202 of CrPC, if any, the accused
is answerable before the criminal court, there is ground for
proceeding against the accused under Section 204 of CrPC, by
issuing process for appearance. Application of mind is best
demonstrated by disclosure of mind on the satisfaction. If there
is no such indication in a case where the Magistrate proceeds
under Sections 190/204 of CrPC, the High Court under Section
482 of CrPC is bound to invoke its inherent power in order to
prevent abuse of the power of the criminal court. To be called to
appear before criminal court as an accused is serious matter
affecting one’s dignity, self respect and image in society. Hence,
the process of criminal court shall not be made a weapon of
harassment.
24. Having gone through the order passed by the
Magistrate, we are satisfied that there is no indication on the
application of mind by the learned Magistrate in taking
cognizance and issuing process to the appellants. The
contention that the application of mind has to be inferred
16
cannot be appreciated. The further contention that without
application of mind, the process will not be issued cannot also
be appreciated. Though no formal or speaking or reasoned
orders are required at the stage of Section 190/204 CrPC, there
must be sufficient indication on the application of mind by the
Magistrate to the facts constituting commission of an offence
and the statements recorded under Section 200 of CrPC so as to
proceed against the offender. No doubt, the High Court is right
in holding that the veracity of the allegations is a question of
evidence. Question is not about veracity of the allegations; but
whether the respondents are answerable at all before the
criminal court. There is no indication in that regard in the order
passed by the learned Magistrate. We, hence, set aside the
order dated 03.04.2007 passed by the Judicial Magistrate First
Class, Srinagar and the impugned order passed by the High
Court. The matter is remitted to the Magistrate for fresh
consideration and further action, if required to be taken in
accordance with law.
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25. The appeals are allowed as above.
………..………………………..J.
(KURIAN JOSEPH)
…………………..……………J.
(ADARSH KUMAR GOEL)
New Delhi;
March 31, 2015.
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ITEM NO.1A COURT NO.12 SECTION II
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1347/2010
MEHMOOD UL REHMAN Appellant(s)
VERSUS
KHAZIR MOHAMMAD TUNDA & ORS.
Respondent(s)
WITH
Crl.A. No. 1348/2010
Date : 31/03/2015 These appeals were called on for
pronouncement of judgment today.
For Appellant(s) Mr. Sarad Kumar Singhania,Adv.
Mr. Praveen Chaturvedi,Adv.
For Respondent(s) Mr. Praveen Chaturvedi,Adv.
Ms. S. Janani,Adv.
Hon'ble Mr. Justice Kurian Joseph pronounced
the reportable Judgment of the Bench comprising
His Lordship and Hon'ble Mr. Justice Adarsh Kumar
Goel.
The appeals are allowed in terms of the signed
reportable Judgment.
(Rajni Mukhi) (Renu Diwan)
Sr. P.A. Court Master
(Signed Reportable Judgment is placed on the file)
19