# DARSHAN SINGHRAJ\1 KISHA'N v. STATE Of1MAHARASHTRA

- **Citation:** [1972] 1 S.C.R. 571
- **Court:** Supreme Court of India
- **Decided:** 1971-09-02
- **Bench:** J: .M. 'Shelat, I.· D. DuA, $. C. Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/darshan-singhraj-1-kisha-n-v-state-of1maharashtra-5396
- **Pages:** 6

## Headnote

571.
~
Code of Criminal' Procedure' (Ac;/ 5 of 1898), S: 19"64(2)-Chargeshee,t by po/ice-Nq reference to or a1/egation of crilninal conspiracy-
.\1agisttate framing charges for-offences including. under s. 120-B~. l~P.C.
Whether prior consent under~~ 196A(2), Cr.P.C., rteCessizry.
•
•
Tμe police filed a charge-sheet against the appellant and" another '"for -
various offences ip connection with the fabrication of a' British passport.
Tht3 offences mentioned in the cl]argc·shej!t against the appellant were
ss. 419/109, 468 .and 471, J.P.C., and against-the other accused ss. 419 and
471 read with s. 468~ The Magistrate dfd not exatnine any witnesses.
but after perming the charge-slieet 'and .bther documents filed bl'fore him
under s. 19'3, 4Cr.P.C., framed charges against the~·two~accused and committed them for trial before the Sessi<{nS" Court.
The .. charges
against
the accusecct included the offence under s. 120B, ·J.P.C., the object of the
conspiracy being) to commit the non-cognizable offence of forging tl\e
.passport.
~
•
The appi:Jlant filed an application in the, High, Court tor quashing the
committaf order on the ground that no oonscnt, as required by s. 196A(1).
Cr.P.C., having been -obtained, the Magistrate had no jurisdiction to 'take
cognizance of the offence of conspiracy.
The High Court' dis1nisscd the
application.
Dismissing. the apPeaI to· this Court,
HELD: {l) Cognizance takes place when the Magistra\~ takes judicial "llotice of ah offence. Therefore, when a Magistrate takes cognizante
of an 'OffenCe, under s. 190, Cr.P.G. upon a police report, prilria facie he
doc_s ·SO of the of\en,ces alleged )n the report. (573 .H; 574 A]
1n the prese'tll case the charge-sheet did., not ref~r to or charge ~ithcr
of 'the accused \with criminal
conspiracy.
The' •cognizan'Ce
Which
the
Magistrate took was therefore, .. only of the, offences alleged in the chargc-
:>hcet, and it was onJy at the later Stage of ~passing the
cQmmittal rorder
that he considered that a chafge under. ~- 1408 \Vas
more
appropriate
tha1i, that of abctment." (574 F-HJ
·
·(2) Even on .. 'the basis that it is not tl1c sections referred to -in
the
.charge--sheet that matter, but the offence . .prinza facie
disclOsed by
the
allegations, in the presenl case, the offence 'primarily and. 'essentially' di<
closed in the charge-sheet and other documents \Vas one of abetment ot
forgery and of the fal~e impcr.onation.· (575 F-H]
· '
..
Therefore, the ·Magistrate 0did..not take cognizance of the offence under
s. 120Jl, J.P.C., .and hence, consent under s. i96A(2) Cr.P.C.," was
not
.a condition. precedent. (,576 .ll-CJ
t•
~·
••
CRIMINAL Ai>PELVATE JuR1smc'r10N : Criminal _Appeal No.
100 of 1969. ·
·
572
SUPREME COURT REPORTS
[1972] 1 S.C.R.
Appeal by special ieave from rhe judgment !!jnd order dated
January 8, 1969 of the Bombay High Court in Criminal Application No. 1341 of 1968.
C. L. Sareen and J. C. Ta/war, for the appellant.
P. K. Chatterjee and S. P. Nayar, for the re&pQn.dent.

## Text

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DARSHAN SINGHRAJ\1 KISHA'N
v.
STATE Of1MAHARASHTRA
September 2, 1971
[J: .M. 'SHELAT, I.· D. DuA AND,$. C. ROY, JJ.)
571.
~
Code of Criminal' Procedure' (Ac;/ 5 of 1898), S: 19"64(2)-Chargeshee,t by po/ice-Nq reference to or a1/egation of crilninal conspiracy-
.\1agisttate framing charges for-offences including. under s. 120-B~. l~P.C.
Whether prior consent under~~ 196A(2), Cr.P.C., rteCessizry.
•
•
Tμe police filed a charge-sheet against the appellant and" another '"for -
various offences ip connection with the fabrication of a' British passport.
Tht3 offences mentioned in the cl]argc·shej!t against the appellant were
ss. 419/109, 468 .and 471, J.P.C., and against-the other accused ss. 419 and
471 read with s. 468~ The Magistrate dfd not exatnine any witnesses.
but after perming the charge-slieet 'and .bther documents filed bl'fore him
under s. 19'3, 4Cr.P.C., framed charges against the~·two~accused and committed them for trial before the Sessi<{nS" Court.
The .. charges
against
the accusecct included the offence under s. 120B, ·J.P.C., the object of the
conspiracy being) to commit the non-cognizable offence of forging tl\e
.passport.
~
•
The appi:Jlant filed an application in the, High, Court tor quashing the
committaf order on the ground that no oonscnt, as required by s. 196A(1).
Cr.P.C., having been -obtained, the Magistrate had no jurisdiction to 'take
cognizance of the offence of conspiracy.
The High Court' dis1nisscd the
application.
Dismissing. the apPeaI to· this Court,
HELD: {l) Cognizance takes place when the Magistra\~ takes judicial "llotice of ah offence. Therefore, when a Magistrate takes cognizante
of an 'OffenCe, under s. 190, Cr.P.G. upon a police report, prilria facie he
doc_s ·SO of the of\en,ces alleged )n the report. (573 .H; 574 A]
1n the prese'tll case the charge-sheet did., not ref~r to or charge ~ithcr
of 'the accused \with criminal
conspiracy.
The' •cognizan'Ce
Which
the
Magistrate took was therefore, .. only of the, offences alleged in the chargc-
:>hcet, and it was onJy at the later Stage of ~passing the
cQmmittal rorder
that he considered that a chafge under. ~- 1408 \Vas
more
appropriate
tha1i, that of abctment." (574 F-HJ
·
·(2) Even on .. 'the basis that it is not tl1c sections referred to -in
the
.charge--sheet that matter, but the offence . .prinza facie
disclOsed by
the
allegations, in the presenl case, the offence 'primarily and. 'essentially' di<
closed in the charge-sheet and other documents \Vas one of abetment ot
forgery and of the fal~e impcr.onation.· (575 F-H]
· '
..
Therefore, the ·Magistrate 0did..not take cognizance of the offence under
s. 120Jl, J.P.C., .and hence, consent under s. i96A(2) Cr.P.C.," was
not
.a condition. precedent. (,576 .ll-CJ
t•
~·
••
CRIMINAL Ai>PELVATE JuR1smc'r10N : Criminal _Appeal No.
100 of 1969. ·
·
572
SUPREME COURT REPORTS
[1972] 1 S.C.R.
Appeal by special ieave from rhe judgment !!jnd order dated
January 8, 1969 of the Bombay High Court in Criminal Application No. 1341 of 1968.
C. L. Sareen and J. C. Ta/war, for the appellant.
P. K. Chatterjee and S. P. Nayar, for the re&pQn.dent.
The Judgment of the Court was delivered by
Shelat, J. The appellant and one Bakshi Singh Sunder Singh
II
were accused No. 2 and accused No. 1 respecuvely m Lile wu1mittal proceedings before the Presidency Magistrate, 28th Court,
Greater Bombay.
This appeal, by special leave, is directed
against the judgment of the High Court of Bombay refusing to
C
qua'h the order of committal passed by the learned Magistrate.
The facts relevant to this appeal are few and may first be
stated.
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
tamily.
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 procure 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 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, th'< police filed a charge-sheet
before the learned Magistrate.
That charge-sheet is not before
us. But counsel for the appellant informed us that Bakshi Singh
was therein charged under secs. 419 and 471 read with sec. 468,
and the appellant was charged under secs. 419 I I 09, 468 and
471 of the Penal Code. Counsel also informed us
that the
Magistrate did not examine any witnesses, during the committal
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DAllSHAN SINGH V. MAHA.llASHTRA (Sire/at, J.)
573
proceedings but on a perusal of the charge-sheet and the documents filed before him under sec. 173 of the Code of Criminal
Procedure· he framed the charges and committed, by his order dated
September 13, 1968, Bakshi Singh and the appellant for trial
before the Sessions Court.
By that order he directed the
said Bakshi Singh to stand his trial under secs. 120B, 419, 467
and 471 read with sec. 467, and the appellant under secs. 120B
and 467 of the Penal Code. The offence of 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.
In the High Court various contentions were raised on behalf
of the appellant in support of his application under sec. 561A of
the Code of Criminal Procedure including that under sec. 196A
(2). That contention was that no consent as required by sec.
196~ ( 2) hav)ng been first obtained, the Magistrate had no
jurisdiction to take cognizance of the offence of conspiracy, and
therefore, the committal order was without jurisdiction and had
to be quashed.
In this appeal we are concerned only with that
contention as the special leave granted to the appellant has been
limited to that ground alone.
Sub-sec. 2 of sec. 196A, which is relevant to the present case,
provides that no court shall take cognizance of the offence 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 offence.
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 offence.
In respect of that offence,
sec. 196A(2) would undoubtedly
apply.
What that section prohibits is taking cognizance of an
offence 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 offence 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
offence has been committed. As has often been held taking cognizance does not involve any formal action or indeed action of
any kind but occurs as soon as a Magistrate applies his mind to
the suspected commission of an offence.
Cognizance, therefore,
takes place at a point when a magistrate first takes judicial notice
of an offence. This is the position whether the magistrate takes
574
SUPREME COURT REPORTS
[1972] 1 S.C.R.
cognizanc_e of an. offence on a complaint or on a police report, . A'
or upon mformallon of a person other than a police officer.
Therefore, when a magistrate takes cognizance of an offence
upon a police report, prima facie he does so of the offence or
offences 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
B
magistrate was for offences under secs. 419 and 4 71 read with
sec. 468 against Bakshi Singh and under secs. 419/109, 4 71 and
468 against the appellant.
The charge-sheet admittedly did not
refer to or charge either of them with criminal conspiracy under
sec. ! 20B. Prima facie it is not possible to say that at the stage
when the police filed the charge-sheet the Magistrate took cogniC
zance of the offence under sec. 120B, for,
that was not the
offence alleged in the charge-sheet to have been committed by
either of the two accused persons.
True it is that the Magistrate ultimately drew up
charges
which included the offence under sec. 120B, the object of which
was to forge the passport, an offence under sec. 467. The Magistrate also did not consider it necessary to examine any witnesses
and frame the charges on a perusal of the ~barge-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
before him.
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 cc•!lSidered that though the charge-sheet
filed before him alleged the commission of offences under secs.
419/109, 4 71 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 offences alleged in the charge'.sheet because it was in
respect of those offences that the police had applied to him to initiate proceedings against Bakshi Singh and the appellant and not
for the offence 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. l 20B 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 offence
of abetment of an offence of forgery and impersonation so far as
the appellant was concerned and not of the offence of criminal
conspiracy, and therefore, sec. 196A(2) did not apply.
Counsel in this connection relied on certain observations
made in a minority judgment of S. K. Das, J., in Pramatha Nath
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DARSHAN SINGH v. MAHARASHTRA (She/at, /.)
575
Ta/uqdar v. Saroj Ranjan Sarkar.(')
The question: involved:
there was, whether a second complaint could be entertained by.
a magistrate who or whose predecessor had on the same or similar
allegations dismissed a previous complaint,. and if so, in what
circumstances should such a complaint be entertained. Arising:
out of this question a contention was raised whether on the complaint, as it was framed, the Magistrate had the j\1risdiction to
take cognizance of the offences alleged in the complaint in the
absence of a sanction under sec. 196A. The second complaint
alleged offences under secs. 467 and 471 read with sec; 109 of
the Penal Code. But in para, 5 thereof, there was an allegation
as to criminal conspiracy and it was on the basis of that allegation
that sec. 196A(2) was sought to be involved. It was in this
connection that the learned Judge at page 315 of the report
observed:
"It would not be proper to decide the question of
sanction merely by taking into consideration the offences
mentioned in the heading or the use of the expression
"criminal conspiracy" in para 5. The proper test should
be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or
offences for which a consent in writing would be necessary to the initiation of the proceedings within the
meaning of s. 196A(2) of the Code of Criminal Procedure. It is from that point of view that the petition
of complaint must be examined."
The learned Judge ultimately held that though the offence of
criminal conspiracy was alluded to in para 5 of the said complaint, the offence "primarily and essentially" charged was abetment by conspiracy under sec. 109 of the Penal Code, and therefore. no consent under sec. 196A(2) was required. In Biroo
Sardar v. Arif/( 2 ) the view also taken was that it is not the·
sections referred to which matter but the offence
prima facie
disclosed.
Following that decision, the High Court of Bombay
in Ramchandra v. Emperor(') observed that the questibn whether sanction is necessary or not depends not on the
sections
referred to in a complaint but the offence prima facie disclosed·
by the facts alleged in it.
It is clear from the charge-sheet submitted to the magistrate
that the offence of criminal conspiracy was not even referred to.
The offence "primarily and essentially" alleged therein was one
of abetment of forgery under secs. 468· and 471 and of false·
(I) [1962] Supp. 2 S.C.R, 297.
(2) AJ.R. 1925 Cal. 579.
(3) A.LR. 1939 [Bom.1129.
'5 76
SUPREME COURT REPORTS
[1972] 1 S.C.R.
impersonation under sec. 419 read with sec. 109. Assuming that
lhe Magistrate before taking cognizance had persued the state·
ments 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 enter-.
ed into a criminal conspiracy with Bakshi Singh for forging the
passport. It cannot be disputed that the charge-sheet also prima
facie disclosed the offence of abetment.
That being so,
it is
impossible to sustain the argument that the Magistrate took cognizance of the offence 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
he took wefo vitiated for want of such consent.
The appeal, therefore, fails and is dismissed.
V.P.S.
Appeal dismissed.
A
B
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