Darshan Singh Ram Kishan vs the State Of Maharashtra, 1971 AIR 2372
Before the Supreme Court of India
Decided on: 2 September 1971
Author of the judgement: Shelat, J.M.
Bench: J.M. SHELAT, I.D. Dua SUBIMAL CHANDRA Roy
Counsel for the appellant: L. Sareen and J. C. Talwar.
Counsel for the respondent: K. Chatterjee and S. P. Nayar.
- Biroo Sardar v. Ariff A.I.R. 1925 Cal. 579
- Ramchandra v. Emperor A.I.R. 1939 [Bom.] 129.
- Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar.  Supp. 2 S.C.R. 297
Brief facts and procedural history:
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 application for a visa in the name of Bakshi Singh. It was further alleged that with a view to procuring 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 an 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 for charges under sections 419 and 471 read with section 468, and the appellant was charged under sections 419/109, 468 and 471 of the Penal Code.
The magistrate on the basis of the charge sheet and the documents before him committed Bakshi Singh and the appellant for the trial under sections 120B and 467 of the Penal Code. The offense of the 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.
Contention on behalf of the appellants:
- No consent was required under section 196A(2)
- If the consent was obtained then the Magistrate had no jurisdiction to take cognizance of the offense of conspiracy, and therefore, the committal order was without jurisdiction and had to be quashed.
Sub-sec. 2 of sec. 196A, which is relevant to the present case, provides that no court shall take cognizance of the offense 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 offense. 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 offense. In respect of that offense, sec. 196A(2) would undoubtedly apply. What that section prohibits is taking cognizance of an offense 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 offense 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 offense has been committed.
As has often been held taking cognizance does not involve any formal action or indeed the action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offense. Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offense. This is the position whether the magistrate takes cognizance of an offense 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 offense upon a police report, prima facie he does so of the offense or offenses 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 offenses under sections 419 and 471 read with sec. 468 against Bakshi Singh and under sections 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 offense, under sec. 120B, for, that was not the offense alleged in the charge-sheet to have been committed by either of the two accused persons.
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. 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 sections 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 offenses alleged in the charge-sheet because it was in respect of those offenses that the police had applied to him to initiate proceedings against Bakshi Singh and the appellant and not for the offense 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 offense of abetment of an offense of forgery and impersonation so far as the appellant was concerned and not of the offense of criminal conspiracy, and therefore, sec. 196A(2) did not apply.
Assuming that the Magistrate before taking cognizance had pursued 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 offense of abetment. That being so, it is, offense impossible to sustain the argument that the Magistrate took cognizance offense 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 the court took were vitiated for want of such consent.
Held: The appeal, therefore, fails and is dismissed.