TaxTMI 
TaxTMI 
2007 (9) TMI 602
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....taining the temple. He was residing at the temple and performing regular puja. On 8.8.1984 at about 9.30 p.m., after performing evening puja and aarti and after having dinner he was doing meditation when five persons including two accused persons namely the present appellant and one Ram Saran and three persons who were Sikhs and whose names he did not know but could identify them, entered into the temple, tied him with a rope and ran away with the donation box with cash of about Rs. 5,000/-. Appellant was carrying a knife, Ram Saran was having a lathi and one of the three others who was a Sikh was having a revolver. After some time two local persons namely Kanwar Singh and Dr. Salekh Chand came to the temple and they also saw five persons running towards Gagan Cinema. Both of them identified the appellant and Ram Saran; they untied the rope and cried for help. After hearing their cry several local residents gathered at the temple and the complainant narrated the whole incident to them. Complainant along with Kanwar Singh and Dr. Salekh Chand and others went to lodge report at the police station, Seema Puri. But the duty officer did not listen to him and the local residents and dire....
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....and other Sikh accused were holding lathi. But in the complaint it was stated that Ram Saran was carrying a lathi and one of the accused Sikh was holding a revolver. It was accepted that no injury was inflicted on the complainant by any of the accused. 7. The effect of not adducing material to show that in fact the grievance was made before the police and the FIR was not recorded has been considered by this court in several cases. Section 304 Cr.P.C. mandates that when the accused is not represented, the Court has to appoint a counsel so that the accused does not go undefended. 8. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no ....
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....ry in nature. It may be true that non- compliance of the provisions of Section 210, Cr.P.C., is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr. P.C., unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. But even applying the very same principles it is seen that in fact the appellant was in fact prejudiced because of the non- production of the records from the police. Delay in filing the complaint because of police inaction has to be explained by calling for the records from the police was explained by this Court in Khedu Mohton and others v. State of Bihar (AIR 1971 SC 66). Where the Court took exception to the fact that the complaint lodged with the police had not been summoned or proved, no satisfactory proof of any such complaint had been adduced before the Court, and none of the documents as would have become available under Sec. 173, Cr. P.C., had also been brought on record. 10. When information is given at the pol....
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....ence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Cr.P.C. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Cr.P.C. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. 15. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Cr.P.C. A reading of Section 202(1) of the Cr.P.C. makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there....
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....pon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Cr.P.C. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the com....
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....the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal (AIR 1959 SC 1118). It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Cr.P.C.. The action of Mr. Thomas comes within the observations of Mr. Justice Das Gupta. In these circumstances, we do not think that the first contention on behalf of the appellants has any substance." 20. In Narayandas Bhagwandas Madhavdas v. The State of West Bengal (AIR 1959 SC 1118) it was observed as under: "On 19.9.1952, the appellant appeared ....
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....te had recorded an order thereon, "Permitted. Issue search warrant." It was on this date that the Additional District Magistrate took cognizance of the offence. We cannot agree with this submission because the petition of Inspector Mitra clearly states that "As this is non-cognizable offence, I pray that you will kindly permit me to investigate the case under section 155 Cr.P.C." That is to say, that the Additional District Magistrate was not being asked to take cognizance of the offence. He was merely requested to grant permission to the police officer to investigate a non- cognizable offence. The petition requesting the Additional District Magistrate to issue a warrant of arrest and his order directing the issue of such a warrant cannot also be regarded as orders which indicate that the Additional District Magistrate thereby took cognizance of the offence. It was clearly stated in the petition that for the purposes of investigation his presence was necessary. The step taken by Inspector Mitra was merely a step in the investigation of the case. He had not himself the power to make an arrest having regard to the provisions of s. 155(3) of the Code of Criminal Procedure. In order to....
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....Reserve Bank as required by s. 23(3)(b) of the Foreign Exchange Regulation Act. It is only at this stage that the Additional District Magistrate would be called upon to make up his mind whether he would take cognizance of the offence. If the complaint was filed with the authority of the Reserve Bank, as aforesaid, there would be no legal bar to the Magistrate taking cognizance. On the other hand, if there was no proper authorization to file the complaint as required by s. 23 the Magistrate concerned would be prohibited from taking cognizance. In the present case, as the requisite authority had been granted by the Reserve Bank on January 27, 1953, to file a complaint, the complaint filed on February 2, was one which complied with the provisions of s. 23 of the Foreign Exchange Regulation Act and the Additional District Magistrate could take cognizance of the offence which, indeed, he did on that date. The following observation by Das Gupta, J., in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji [A.I.R. (1950) Cal. 437] was approved by this Court in the case of R. R. Chari v. The State of Uttar Pradesh [[1951] S.C.R. 312]:- "What is....