Vishnu Dutt and Another Vs Govind Das and Others

@JUDGMENTTAG-ORDER

B.R. Arora, J.@mdashThis miscellaneous petition is directed against the order dated 20-12-93, passed by the Additional Chief Judicial Magistrate No. 4, Jodhpur, by which the learned Magistrate refused to accept the Final Report submitted by the police and took cognizance against the accused-petitioners for the offences under Sections 448, 427 and 341 I.P.C.

2. The order passed by the learned Additional Chief Judicial Magistrate has been challenged by the petitioners on the grounds that (i) the order passed by the learned Magistrate taking cognizance is not a speaking order; (ii) the learned Magistrate has not considered the Final Report submitted by the investigating agency and has not given any detailed reasons why he did not agree with the Final Report submitted by the investigating agency; and (iii) before taking the cognizance and not accepting the Final Report, the petitioners were not given any opportunity of hearing. It has been contended by the learned counsel for the petitioners that the order issuing the process should be a speaking order so that the accused may know what materials have been considered against them by the learned Magistrate while taking the cognizance. It is, also, contended by the learned counsel for the petitioners that the learned Magistrate, while passing the order taking cognizance against the petitioners, has not considered the Final Report submitted by the investigating agency and has not given any reasons and, therefore, the order passed by the learned Magistrate stands vitiated. In support of its contention learned counsel for the petitioners has placed reliance over: Basuda v. State 1989 Raj Cri 271 and State of Maharashtra Vs. Rajendra Garbad Patil, . His further contention is that before taking the cognizance it is necessary that the accused should be given an opportunity of hearing and as the cognizance has been taken against the petitioners without giving them any opportunity of hearing hence the order passed by the learned Magistrate deserves to be quashed and set-aside. In support of this contention, learned counsel for the petitioners has placed reliance over: Hardev Singh Sandhu Vs. State of Rajasthan and Others, and Jagdish v. State of Rajasthan 1988 Cri LR (Raj) 128 The learned Public Prosecutor, on the other hand, has supported the order passed by the Court below and contended that the learned Magistrate, while taking the cognizance, has considered the relevant material available on record and has rightly taking the cognizance against the accused-petitioners. According to him, at the time of taking the cognizance, no detail-discussion of the evidence is necessary. In support of its contention, the learned Public Prosecutor has placed reliance over: Bhanwar Lal v. State of Rajasthan 1985 Cri LR (Raj) 512 He also, submitted that the accused has no right of hearing before the cognizance is taken. In support of his contention, the learned Public Prosecutor has placed reliance over: Mahesh Chand and etc. Vs. State of Rajasthan and etc., Chandra Deo Singh Vs. Prokash Chandra Bose and Another,

3. I have considered the submissions made by the learned counsel for the parties.

4. The first ground, on which the order taking cognizance against the petitioners has been challenged by the learned counsel for the petitioners, is that the order passed by the learned Magistrate, taking congizance, is not a speaking order which is a mandatory requirement as the petitioners have a right to know what prevailed with the learned Magistrate while taking action against him and issuing the process. At the time of taking cognizance, what is required from the Magistrate is that he should go-through the record and consider the F.I.R. or the complaint, as the case may be, filed by the complainant and the evidence collected by the investigating agency or recorded by the Court and then apply his mind to the materials on record and pass an order taking or not taking the cognizance. If he does not take the cognizance and drops the proceedings then he is required to pass a detailed order showing the reasons why he did not consider it proper to issue the process. Nobody can unnecessarily be harassed or prosecuted unless there is some evidence available against him. But so far as the order taking the cognizance is concerned, it will be sufficient if he refers the relevant material available on record, on the basis of which he has taken the cognizance. The detailed discussion of the evidence, at this stage, is not required to be done because this duty is to be performed by the Magistrate at the time of final disposal of the case. Now, it has to be seen: whether the order, passed by the learned Magistrate is a speaking order or not. Two orders have been passed by the learneed Magistrate on 20-12-92. One order is in the Order-sheet in which the learned Magistrate has stated that the order dictated and pronounced separately and a prima facie, case is made-out against the accused for taking the cognizance under Sections 448,427 and 341,I.P.C. and the other order of the same day, which is available on the file, is a reasoned order containing the conclusion based on the discussion of the evidence available on record, the consideration of the Final Report and the protest petition. The order cannot be said to be'' an order without application of mind. The learned Magistrate, in support of his conclusions, has given reasons. The order, therefore, does not suffer from the vice of "not giving the reasons." The conclusions arrived-at by the learned Magistrate are supported by the reasons. Therefore, the judgments, on which reliance has been placed by the respective parties, are not necessary to be discussed as they are not applicable to the facts and circumstances of the present case.

5. The next contention, raised by the learned counsel for the petitioners, is that the petitioners have got a right to be heard before the cognizance is taken against them. The two judgments, referred above, on which reliance has been placed by the learned counsel for the petitioners, run contrary to the view taken by the Full Bench of this Court in Mahesh Chand and etc. Vs. State of Rajasthan and etc., and Chandra Deo Singh Vs. Prokash Chandra Bose and Another, In both these judgments, the judgment of the Full Bench of this Court has not been referred or considered. It has been held by the Full Bench of this Court in Mahesh Chandra''s case that cognizance of an offence is taken at the stage when the accused is nowhere in the picture before the Magistrate. The Apex Court, in the case of Chandra Deo Singh v. Prakash Chand Bose 1963 Cri LJ 397 (Supra) has held that permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the Legislature has made no specific provision permitting the accused person to take part in an enquiry. At the time of taking cognizance, the defence available to the accused is not required to be considered by the Magistrate. The Magistrate, at that stage, is, also, not required to consider the truthfulness or falsity of the evidence. Whether the witnesses are trustworthy or not, that is not required to be considered at this stage and the order has to be passed by the learned Magistrate to determine the issue on the basis of the material placed before him by the complainant or the investigating agency. The defence, if at all available to the accused, is not to be considered and decided by the Magistrate at this stage. If the evidence collected by the investigating agency or produced before the Court, at its face value, do constitute any crime involving the accused and the Court is satisfied, after applying its judicious mind then it can take the cognizance against the accused and issue the process. The accused nowhere comes in the picture before the process is issued. It is only after the process is issued that the accused gets a right to participate in the proceedings and to appear before the Court and requests it that the matter may be reconsidered. As the order taking cognizance is an interim order and not a judgment, therefore, it can be varied or recalled if after hearing the accused and on reconsideration of the material available on record, the Court is satisfied that no offence, for which the process has been issued, has been made-out, on the basis of which the accused could be tried, it can then drop the proceedings. No person can be tried without a prima facie case against him and the Magistrate cannot refuse to consider the case on the ground that no fresh material has been made available after the cognizance has been taken. The issuance of the process cannot act as a bar to drop the proceedings if the materials do not disclose any offence against the accused.

6. It has been held by the Hon''ble Supreme Court in the case of: K.M. Mathew Vs. State of Kerala and another, that "it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied, on reconsideration of the complaint, that there is no offence for which the accused could be tried. It is the judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued, is no bar to drop the proceedings if the complaint, on the very face of it, does not disclose any offence against the accused.

7. The Code of Criminal Procedure, does not envisage the participation of the accused at any stage of enquiry before the cognizance has been taken by the Court though the provisions have been made for the participation of the complain-ant and hearing the complainant if a Final Report has been submitted by the investigating agency. The contention, raised by the learned counsel for the petitioners, on this count, is, therefore, bereft of any substance and the accused have no right of participation in the enquiry or the investigation before the process is issued.

8. Since the process has been issued against the accused-petitioners, they may, therefore, ap-pear before the learned Magistrate and show to the Court that the allegations made in the complaint, the evidence collected by the investigating agency and the evidence produced before the Court by the complainant, do not constitute any crime involving the accused-petitioners and satisfy the Court that if the relevant materials would have been taken into consideration, the process against them would not have been issued. If such thing is brought to the notice of the Court then the Court will consider the arguments advanced by the accused-petitioners. If after reconsideration of the material available on record the trial Court is satisfied that no offence, for which the process has been issued, is made-out, he may then drop the proceedings. But the order taking the cogzance, which is an interim order, cannot.be quashed at this stage by this Court in its inherent jurisdiction u/s 482 Cr.P.C.

9. In the result, I do not find any merit in this miscellaneous petition, filed by the accused-petitioners, and the same is hereby dismissed.