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Superintendent And R... v. Abani Kumar Banerjee...
Factual and Procedural Background
On 2nd February 1948, Haridas Mukherjee filed a petition of complaint before the Chief Presidency Magistrate of Calcutta concerning a bank. The Magistrate ordered an enquiry and, upon receiving a report that the bank had ceased functioning, issued a search warrant and directed seizure of the bank's books. Subsequently, a challan was submitted against Abani Kumar Banerjee under Section 408 of the Penal Code. On 7th February 1949, the Chief Presidency Magistrate recorded receipt of the challan and transferred the case to Mr. C.C. Chakravartti for disposal. Mr. Chakravartti held that the initial Magistrate had acted illegally, ruled that the accused was before him due to illegal arrest, ordered his release, and fixed a date for examination of the complainant under Section 200 of the Cr PC. The present Rule challenges that order.
Legal Issues Presented
- Whether the learned Magistrate was bound to take cognizance under Section 190(1)(a) of the Code of Criminal Procedure immediately upon the filing of a petition of complaint.
- If bound to take cognizance, whether the Magistrate was also bound to examine the complainant under Section 200 and proceed according to Sections 202, 203, and 204 of the Code.
- If not bound to take cognizance, whether the Magistrate's action in sending the case to the police for investigation under Section 156(3) without examining the complainant was legal.
Arguments of the Parties
Complainant's Arguments (Mr. Mukherjee)
- The Magistrate is bound to take cognizance of a petition of complaint as soon as it is filed.
- Taking cognizance necessarily occurs whenever the Magistrate applies his mind to the petition, including actions such as issuing search warrants or ordering police enquiries.
- The matter should be referred to a Full Bench for clarification.
Court's Response
- The Magistrate is not bound to take cognizance immediately upon filing of the complaint.
- "Taking cognizance" requires the Magistrate to apply his mind for the purpose of proceeding under Sections 200 and subsequent provisions, not merely for issuing search warrants or ordering investigations under Section 156(3).
- The Court found no justification for referring the matter to a Full Bench.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Samaddar v. Sures Chandra, 53 C.W.N 270; A.I.R (36) 1949 Cal. 197 | A Magistrate empowered to take cognizance must do so immediately upon receipt of a petition of complaint. | The Court noted this view but did not follow it, preferring contrary Division Bench decisions. |
| Robinul Hossain v. K.K Ram, 82 C.L.J 322 | A Magistrate may either take cognizance and proceed under Sections 200 onwards or may send the complaint for police investigation under Section 156(3). | The Court followed this view as authoritative. |
| Pulin Behari Ghosh v. The King, 53 C.W.N 653 | Same principle as Robinul Hossain: Magistrate's discretion to take cognizance or direct police investigation. | The Court followed this view as authoritative. |
Court's Reasoning and Analysis
The Court analyzed the legal meaning of "taking cognizance" under Section 190(1)(a) of the Cr PC. It rejected the argument that any action by the Magistrate on a petition of complaint constitutes cognizance. Instead, cognizance requires the Magistrate to apply his mind specifically to proceed under the procedural framework of Sections 200 to 204 of the Code, which includes examining the complainant and directing subsequent steps. Actions such as ordering police investigation under Section 156(3) or issuing search warrants do not amount to taking cognizance. The Court relied on Division Bench precedents supporting this interpretation, thereby concluding that the Chief Presidency Magistrate was not bound to take cognizance immediately upon the complaint's filing. The learned Magistrate erred in holding otherwise and in treating earlier proceedings as invalid. Consequently, the Court set aside the order releasing the accused and directed continuation of the trial on the existing record.
Holding and Implications
Rule made absolute.
The Court set aside the order of the learned Magistrate who had declared the accused to be at liberty on the ground of illegal arrest. It held that the proceedings from the filing of the complaint until transfer to Mr. C.C. Chakravartti were valid. The case must proceed to trial either before the Chief Presidency Magistrate or another Presidency Magistrate as appropriate. No new precedent was created beyond affirming the existing Division Bench view that Magistrates have discretion to either take cognizance under Section 190(1)(a) or direct investigation under Section 156(3) of the Cr PC.
The Judgment of the Court was delivered by
Das Gupta, J.:— On 2nd February 1948, a petition of complaint was filed before the Chief Presidency Magistrate of Calcutta by one Haridas Mukherjee. On that petition of complaint, the learned Magistrate passed the following order:
“To D.C.D.D, for enquiry and report. If it is found that the Bank has ceased functioning, the enquiring officer to seize the books atonoe on the strength of a search warrant I should issue on his application. If the Bank is functioning he should apply to me for instructions. To 13/2.”
2. On 9th February 1948, a report was received that the Bank had ceased functioning. On 10th February 1948, the learned Chief Presidency Magistrate ordered issue of a search warrant. A report from the police was received on 23rd Match 1948. On 14th June 1948, the learned Chief Presidency Magistrate passed the following order:
“Heard learned Pleader. Let D.C.D.D take cognisance of this case at once, and seize the books of this Bank that are necessary.”
3. Thereafter a challan was sent up by the police under S. 408, Penal Code, against Abani Kumar Banerjee. On 7th February 1949, the learned Chief Presidency Magistrate recorded the receipt of the challan under S. 408, Penal Code, and then transferred the case to Mr. C.C Chakravartti for disposal. This learned Magistrate came to the conclusion that the learned Chief Presidency Magistrate had acted illegally and that the accused Abani Kumar Banerjee was before him on the basis of illegal arrest, and accordingly ordered him to be set at liberty; and he fixed a date for the examination of the complainant, apparently under Section 200 of the Cr PC.
4. It is against this order of the learned Presidency Magistrate Mr. C.C Chakravarti, that the present Rule is directed.
5. The real question for decision is whether the learned Magistrate is right in his view that when a petition of a complaint was filed before the Chief Magistrate, he was bound to take cognizance under Section 190(1)(a) of the Cr PC. If he was so bound, he was certainly bound also to examine the complainant under Section 200 of the Cr PC and thereafter proceed in the ways indicated in subsequent Ss. 202, 203 and 204 of the Code. If, however, he was not so bound, the action of the learned Chief Presidency Magistrate in sending the case to the police without himself examining the complainant under Section 200 of the Cr PC cannot be said to be illegal as he would be entitled to order investigation by the polios, under Section 156(3) of the Cr PC.
6. Sen J. in the case of Samaddar v. Sures Chandra 53 C.W.N 270 : (A.I.R (36) 1949 Cal. 197) and in some other cases has taken the view that a Magistrate duly empowered to take cognizance is bound to take cognizance of the petition of complaint as soon as it is filed before him. The contrary view has been taken by several Division Benches of this Court of which mention need be made only of two recent decisions, viz., decision of Roxburgh and Chakravartti JJ. in Robinul Hossain v. K.K Ram, 82 C.L.J 322 and the decision of Harries C.J and Das J. in Pulin Behari Ghosh…Accused v. The King…Opposite Party.*, 53 C.W.N 653. In these cases, the view has been dearly expressed that when a petition of complaint is filed before a Magistrate the Magistrate may take cognizance under Section 190(1)(a) of the Cr PC and proceed to examine the complaint under S. 200, and thereafter proceed according to the subsequent sections of the Code, or in the alternative, may not take cognizance and may instead send it to the police for investigation under the provisions of Section 156(3) of the Cr PC. I feel bound to follow these decisions.
7. Mr. Mukherjee has, however, tried to convince us that the view taken in these decisions mentioned above is wrong, and that we should refer the matter to the Full Bench.
8. I have for myself no hesitation in feeling that there is nothing which would justify our referring the matter to the Full Bench. As I read Section 190 of the Cr PC, and the subsequent sections, it seems to me to be clear that a Magistrate is not bound to take cognizance of an offence, merely because a petition of complaint is filed before him. Mr. Mukherji's argument is that a Magistrate cannot possibly take any action with regard to a petition of complaint, without applying his mind to it, and taking cognizance of the offence mentioned in the complaint necessarily takes place, when the Magistrate's mind is applied to the petition. Consequently, Mr. Mukherji argues, whenever a Magistrate takes the action, say, of issuing search warrant, or asking the police to enquire and to investigate, he has taken cognizance of the case. In my judgment, this is putting a wrong connotation on the words “taking cognizance”. What is “taking cognizance” has not been defined in the Code of Criminal Procedure, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) of the Cr PC he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,—proceeding under S. 200, and thereafter sending it for enquiry and report under S. 202. 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 S. 166(3), or issuing a search warrant for the purpose of the investigation, be cannot be said to have taken cognizance of the offence. My conclusion, therefore, is that the learned Magistrate is wrong in thinking that the Chief Presidency Magistrate was bound to take cognizance of the case as soon as the petition of complaint was filed.
9. Mr. Mukherjee wanted to draw our attention to the evidence of some of the witness examined before Mr. Chakravarti to show that really there was something suspicious about the whole complaint. In my judgment, it is not necessary or proper for us to go into the matter at this stage. The learned Magistrate has, in my opinion, clearly committed an error in law in treating the proceedings after the filing of the petition on 2nd February, 1948, up to 7th February 1949, as invalid, and in deriding to start proceedings anew.
10. I would, therefore, make this Rule absolute, set aside the learned Magistrate's order directing the accused to be set at liberty, and direct that the Court should proceed with the trial of the case on the basis that the proceedings up to the order of the Chief Presidency Magistrate on 7th February, 1949, ordering transfer of the case to Mr. C.C Chakravarti are valid.
11. We understand that the Magistrate, Mr. C.C Chakravarti, has since been transferred. This would necessitate that the case should be tried either by the Chief Presidency Magistrate or by such other Presidency Magistrate to whom he may think fit to transfer the case.
12. Lahiri, J.:— I agree.
V.B.B
13. Rule made absolute.
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