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PETITIONER: DARSHAN SINGH RAM KISHAN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT02/09/1971

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D. ROY, SUBIMAL CHANDRA

CITATION:  1971 AIR 2372            1972 SCR  (1) 571  1971 SCC  (2) 654

ACT: Code  of  Criminal Procedure (Act 5 of  1898),  s.  1964(2)- Charge  sheet  by police-No reference to  or  allegation  of criminal conspiracy-Magistrate framing charges for  offences including under s. 120-B, I.P.C.Whether prior consent  under s. 196A(2), Cr.P.C., necessary.

HEADNOTE: The  police filed a charge-sheet against the  appellant  and another   for  various  offences  in  connection  with   the fabrication  of a British passport.  The offences  mentioned in the charge-sheet against the appellant were ss.  419/109, 468  and 471, I.P.C., and against the other accused ss.  419 and  471 read with s. 468.  The Magistrate did  not  examine any witnesses, but after perusing the charge-sheet and other documents  filed  before him under s. 173,  Cr.P.C.,  framed charges against the two accused and committed them for trial before the Sessions Court.  The charges against the  accused included  the offence under s. 120B, I.P.C., the  object  of the  conspiracy being, to commit the non-cognizable  offence of forging the passport. The  appellant  filed an application in the High  Court  for quashing the committal order on the ground that no  consent, as  required by s. 196A(2), Cr.P.C., having  been  obtained, the Magistrate had no jurisdiction to take cognizance of the offence  of  conspiracy.   The  High  Court  dismissed   the application. Dismissing the appeal to this Court, HELD : (1) Cognizance takes place when the Magistrate  takes judicial notice of an offence.  Therefore, when a Magistrate takes cognizance of an offence under s. 190, Cr.P.C. upon  a police  report,  prima  facie he does  so  of  the  offences alleged in the report. [573 H; 574 A] In  the  present case the charge-sheet did not refer  to  or charge either of the accused with criminal conspiracy.   The cognizance which the Magistrate took was therefore, only, of the offences alleged in the chargesheet, and it was only  at the  later  stage  of passing the committal  order  that  he considered that a charge under s. 120B was more  appropriate than that of abetment. [574 F-H] (2)  Even on the basis that it is not the sections  referred

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to  in the charge-sheet that matter, but the  offence  prima facie disclosed by the allegations, in the present case  the offence ’primarily and essentially disclosed in the  charge- sheet and other documents was one of abetment of forgery and of the false impersonation. [575 F-H] Therefore,  the  Magistrate did not take cognizance  of  the offence  under s. 120B, I.P.C., and hence, consent under  s. 196A(2) Cr.P.C., was not a condition precedent. [576 B-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 100  of 1969. 572 Appeal  by special leave from the judgment and  order  dated January  8,  1969  of  the Bombay  High  Court  in  Criminal Application No. 1341 of 1968. C.   L. Sareen and J. C. Talwar, for the appellant. P.   K. Chatterjee and S. P. Nayar, for the respondent. 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 respectively  in  the committal 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  quash  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  a British  passport  bearing No. 183459 at  Nairobi.   On  the strength of that passport he was returning to India with his family.  On his way he died on board the ship.  According to the  prosecution  that passport came into the hands  of  the appellant.   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  a passport for him. The  allegation was that the appellant prepared an  applica- tion for a visa in the name of Bakshi Singh.  It was further alleged  that  with  a view to procure  the  said  visa  the photograph of the said deceased Jivansingh was removed  from the said passport 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 a 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, the police filed a 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. 419/109, 468 and 471 of  the   Penal Code.   Counsel also. informed us- that the  Magistrate  did not examine any witnesses, during the committal 573 proceedings  but  on a perusal of the charge-sheet  and  the documents  filed  before him under sec. 173 of the  Code  of Criminal  Procedure he framed the charges and committed,  by

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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. 196A(2) having 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 to be quashed.   In  this appeal  we  are concerned only with that contention  as  the special  leave ranted 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 a 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 committed  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, a  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, 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 574 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. 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 sees. 419 and  471 read  with  sec. 468 against Bakshi Singh  and  under  sees. 419/109,  471  and 468 against the appellant.   The  charge- sheet  admittedly did not refer to or charge either of  them with criminal conspiracy under sec. 120B.  Prima facie it is not possible to say that at the stage when the police  filed the  charge-sheet  the  Magistrate took  cognizance  of  the offence,  under  sec. 120B, for, that was  not  the  offence alleg ed  in  the  charge-sheet to have  been  committed  by either of the two accused persons.

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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 Magistrate also did not consider it necessary to examine any  witnesses  and frame the charges on a  perusal  of  the charge-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 &,fore 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 committal, the  Magistrate  considered  that  though   the charge-sheet  filed  before him alleged  the  commission  of offences under secs. 419/109, 471 and 468, the proper charge on the materials before him, although they were the same  as before  the police officer, warranted a charge  of  criminal conspiracy  for  forging  a 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  initiate  proceedings  against  Bakshi  Singh  and   the appellant  and not for the offence under sec. 120B.  It  was at a later stage, i.e., at the time of passing the committal order  that he considered that a charge under sec. 120B  was the more appropriate charge and not a 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 a minority judgment of S. K. Das, J.,  in  Pramatha Nath                 575 Taluqdar  v. Saroj Ranjan Sarkar. (1) The question  involved there  was, whether a second complaint could be  entertained by a magistrate who or whose predecessor had on the same  or similar  allegations dismissed a previous complaint, and  if so,  in  what  circumstances  should  such  a  complaint  be entertained.   Arising-. out of this question  a  contention was  raised whether on the complaint, as it was framed,  the Magistrate  had the jurisdiction to, take cognizance of  the offences  alleged  in  the complaint in the,  absence  of  a 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 me-rely 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   complaint   disclosed               primarily   and  essentially  an  offence   or               offences for which a consent in writing  would               be   necessary  to  the  initiation   of   the               proceedings  within the meaning of s.  196A(2)               of the Code of Criminal Procedure.  It is               from  that point of view that the petition  of               ’complaint must be examined."

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The learned Judge ultimately held that though the offence of criminal conspiracy was alluded to in para 5 of thesaid complaint, the offence "primarily and essentially" chargedwas abetment by conspiracy under sec. 109 of the Penal Code, and therefore. no consent under sec. 196A(2) was required.In Biroo     Sardar  v. Ariff (2) the view also taken was  that itis  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(3)  observed that  the  question  whether sanction is  necessary  or  not depends  not on the sections referred to in a complaint  but the offence prima facie disclosed’. by the facts alleged  in it. It   is  clear  from  the  charge-sheet  submitted  to   the magistratethat  the offence of criminal conspiracy  was  not even  referred to.  The offence "primarily and  essentially" alleged  therein was oneof abetment of forgery  under  secs. 468 and 471 and of false, (1) [1962] Supp. 2 S.C.R. 297.    (2) A.I.R. 1925 Cal. 579. (3)  A.I.R. 1939 [Bom.] 129. 576 impersonation  under sec. 419 read with sec. 109.   Assuming that the Magistrate before taking cognizance had persued the statements  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 entered into a 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  cognizance of the offence under sec. 120B, and therefore, consent under sec.  196A(2) was required as a condition precedent or  that the committal order and the proceedings for committal which be took were vitiated for want of such consent. The appeal, therefore, fails and is dismissed. V.P.S.       Appeal dismissed. 577