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Kishore Singh and Anr. Vs Tula Ram and ors.

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Citation: – 1977 AIR 2401, 1978 SCR (1) 615

Date of judgement: – 05/10/1977

Bench: – FAZAL ALI, SYED MURTAZA

Respondents: – Kishore Singh, Mohd. Sadiq

Appellants: – Tula ram, Abhinash Chander, Nathu Ram.

Relevant case: – State of Assam v. Abdul Noor. 1970 3 SCC 10.

Facts:-

1. The respondent 1 filed a complaint against the appellants. The facts of that complaint are that respondent 2, a Pakistani National, who entered India without any pass port, and Balbir Singh, deceased, went to the shop of appellant 1 in village Panjeke and asked him to sell cloth to them on credit.

2. Appellant 1 refused to meet with their demand and told them to come on the following morning. As he wanted to close the shop, respondent 2 and Balbir Singh tried to drag him inside the shop. On the alarm raised by appellant, Abhinash Chander (appellant 2) armed with a stick and Nathu Ram (appellant 3) armed with a gun rushed towards the shop and on reaching their found appellant 1 lying on the ground.

3. Balbir Singh and respondent 2 were armed with pistols and they fired shots from their weapons. 3 more people from appellant’s side also came there armed with fire-arms. In exchange of fires Balbir Singh suffered injuries and later died. Mohd. Sadiq was captured at the shop.

4. Respondent 1, who is a brother of Balbir Singh deceased, filed a complaint under sections 302/307 Indian Penal Code, against the appellants in the Court of Judicial Magistrate 1st Class. In his complaint he stated that when he reached at the shop, he found appellants armed with guns and sticks, assaulting respondent 2, a Pakistani national and Balbir Singh died due to the injuries, he then went to the police station but nobody listened to him.

5. The appellants appealed in high court that Judicial Magistrate Ist Class, had sent the matter for investigation under section 156(3) of the Code and after that he ceased to have any legal authority to proceed with the complaint of respondents.

Issues involved: – Whether the Magistrate took cognizance of this case while ordering the investigation under section 156(3) of the Code?

Whether the Judicial Magistrate 1st Class, after the report of the police could proceed to hold the inquiry himself and summon the accused person?

Obiter dicta:-

1. The court quotes sections 156 and 190 of the Code for a proper judgement on the matter:-

156. Police Officer’s power to investigate cognizable case:-

(1) Any Officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which is a Court having jurisdiction over the local area within the limits of such station would have power to inquire into.

(2) No proceeding of a police officer in such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.

190.Cognizance of offences by Magistrates:-

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon a police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Rationale:-

  1. High court in its judgement states that, When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156(3) of issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.
  2. The court took reference of State of Assam v. Abdul Noor. 1970 3 SCC 10, and states that, Magistrate can make use of the provisions under section 156(3) of the Code to satisfy himself about the contents of the complaint before he takes the cognizance of the matter. In reference of the above cited case of the Supreme Court, the appellants left with no point for argument that by asking the police to investigate, the learned Judicial Magistrate 1st Class, had taken cognizance of the case in hand.
  3. “The Magistrate in this case after receiving the police report gave a notice to Respondent 1 and then proceeded under this Code. This was working on the same complaint which had been presented to the Magistrate and does not amount to renewal of the previous one, as argued by appellant. The cognizance in this case was taken by the Judicial Magistrate 1st Class, on the record when he after notice to Respondent 1, recorded his statement under section 200, of the Code. There was nothing unlawful in the act of the Judicial Magistrate Ist Class, in this case which requires to be revoked through this petition.”

Judgement:-

The court finds no merit in this appeal which is accordingly dismissed.

Conclusion:-

The case cited above is based on the appeal by Tula ram and other appellants against judicial magistrate, 1st class on the ground that he had sent the matter for investigation under section 156(3) of the Code and after that he ceased to have any legal authority to proceed with the complaint of respondents.

The high court dismissed their appeal with reference to the Supreme Court’s precedents stating that Magistrate by giving a notice to Respondent 1 and was working on the same complaint which had been presented to the Magistrate and does not amount to renewal of the previous one.

Moreover there was nothing unlawful in the act of the Judicial Magistrate Ist Class, in this case which requires to be revoked through this petition.