Whether taking of cognizance of offence by Magistrate without examining complainant is illegal?

As observed earlier, it is the main submission of the learned counsel for the petitioners that before taking cognizance, the respondent being the complainant was not examined on oath by the learned Magistrate; therefore, cognizance taken by the learned Magistrate is without any basis and the procedure adopted by the learned Magistrate is contrary to the law under Section 200(a) of Cr.P.C. In this regard, the learned counsel for the petitioners has also relied upon by the judgment delivered by the Andhra Pradesh High Court reported in 2003 (1) ALT (Cri) 309 [K.Laxma Reddy and ors Vs. The State of A.P.through Sho], wherein it has been held that when a complaint is filed, the Magistrate has to record the sworn statement of the complainant, and the object of such examination is to test whether the complaint makes out a prima facie  case so as to enable the Magistrate to issue process. For the same proposition, the learned counsel for the petitioners has also relied upon the judgment delivered by the Karnataka High Court, reported in ILR 2008 KAR 474 [Sri.K.Venkataramaiah and ors Vs. Sri Katterao].

11.But, it is the reply of the learned counsel for the respondent that non-examination of the complainant could be considered only as an irregularity and it will not vitiate the proceedings.  In this regard, the learned counsel for the respondent has also invited the attention of this Court to Section 460(e) of Cr.P.C., which deals with the irregularity, which does not vitiate the proceedings.  As per Section 460(e) of Cr.P.C., if any magistrate, who is not empowered by law, takes cognizance of an offence under Clause (a) or Clause (b) of Sub-Section (1) of Section 190, then it will not vitiate the proceedings.  Thus, the learned counsel for the respondent submitted that even if the complainant was not examined on oath, as per Section 460(e), it will only be an irregularity, and it will not vitiate the proceedings. 

12.But, in my considered opinion, the said submission of the learned counsel for the respondent is not legally sustainable, because as per Section 460 (e) of Cr.P.C.,  if any magistrate who is not empowered by law takes cognizance of an offence under Clause (a) or Clause (b) of Sub-Section (1) of Section 190, then it will not vitiate the proceedings and it could only be considered as irregularity.  But, that is not the state of affairs, in the instant case.  In the instant case, the learned Magistrate is empowered to take cognizance, but he has not taken the oath of the complainant for taking the complaint on file.   As per Section 200, if Magistrate has taken cognizance without examination of the complainant, definitely such a procedure is contrary to Section 200 of Cr.P.C.  Therefore,      I find some force in the submission made by the learned counsel for the petitioner.  On this sole ground, I am of the opinion, the cognizance taken by the learned Magistrate is liable to be set aside.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :             28.03.2016
CORAM:
THE HON'BLE MR.JUSTICE R.SUBBIAH
Crl.O.P.No.3298 of 2014 


A.Leo Charles Vs. M.Vijayakumar


M.Vijayakumar

Citation: 2016 CRLJ 4051 Madras

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What is distinction between cognizance taken erroneously and cognizance taken by disregarding specific bar or prohibition created by statute?

However, a distinction has to be drawn between cases where cognizance is taken on insufficient basis, or by coming to an erroneous conclusion; and cases where cognizance is taken without having a power to do so, or by   violating   an   express   provision   of   law   prohibiting   such   taking   of cognizance.   If cognizance is taken by the concerned Courts on the basis

of material insufficient for taking cognizance, then that would be clearly erroneous, but still, that would not be a matter to be considered by the Special Court under the MCOC Act.  This however, cannot apply where there would be a legal bar to taking of cognizance of the offences in question.  Invalid cognizance on the basis of the merits of the case would not be a ground to take away the activity outside the purview of the    concept of     'continuing unlawful activity    '.  However, cognizance taken in spite of a specific bar created by a statute, has to be treated on a totally

different footing.   In the previous case, the decision or order of taking cognizance   would   be   erroneous,   but   the   error   would   not   be   a jurisdictional error.   In the latter case, the error would be clearly a jurisdictional   error.     Taking   cognizance   by   violating   the   specific   bar created by a statute would be of no cognizance at all in the eyes of law, and would be non est.  The distinction between cognizance erroneously taken i.e. in spite of insufficiency of material, and the cognizance taken

by disregarding the specific bar or prohibition created by the statute, is clear, basic and must be clearly recognized.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.722 of 2012

The State of Maharashtra  Vs. Ajay Jagdish Pande and 3 ors 

­­­CORAM :   NARESH H. PATIL &

ABHAY M. THIPSAY, JJ.

      

  PRONOUNCED ON : 25th JUNE 2014

­­­

Citation : 2016 ALLMR(CRI)1864

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