The order of the Magistrate refusing to take cognizance is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions is, thus, not powerless to pass an order in its revisionary jurisdiction.
When the Magistrate has dismissed the application of the complainant and thereby refused to take cognizance under Sections 304-B and 498-A Indian Penal Code (IPC) and this order had attained finality as no revision petition/ criminal miscellaneous appeal was preferred either by the complainant or by the Public Prosecutor, second application with the same relief would whether be maintainable before the Sessions Court, was the question before the Court.
It was emphatically argued that it amounted to second time cognizance by the Court of Sessions which was impermissible in law. It was argued that under Section 190 of the Code of Criminal Procedure, 1973 (‘Code’), cognizance of the offence can be taken only once.
In the instant matter, Appellants were the parents of accused, alleged of causing death of his wife within ten months of their wedding. Cause of death was Asphyxia due to hanging. Father of the deceased in FIR registered under Sections 304-B and 498-A of the Indian Penal Code (IPC) alleging husband of causing death. Appellants claimed that it was a case of suicide by hanging committed by the deceased. Matter was investigated which resulted into the filing of chargesheet against the husband for committing the offence under Section 306 IPC, i.e. abetting the suicide committed by deceased. As per the Police investigation there was no dowry demands and no offence under Sections 498-A and 304-B of IPC was made out and instead it was a case of suicide and at the most husband could be charged of abetting the suicide.
Against the above, an application was preferred before the concerned Magistrate Court for taking cognizance against the Appellants and Accused under Sections 304-B and 498-A IPC, which however was dismissed. The case was thereafter committed to the Sessions Court for trial under Section 306 IPC. Similar application was preferred again which was allowed by the Sessions Court by taking cognizance for offences punishable under Sections 304-B and 498-A IPC and, in the alternative, Section 306 IPC, against the Appellants and their son.
High Court in appeal remanded the matter back to the Sessions Court with a direction to hear the parties. Sessions Court accorded fresh hearing and again allowed the application, against which revision was preferred before the High Court. The said revision petition was dismissed by the High Court vide impugned finding.
Thus, the question before court precisely was to determine as to whether the Court of Sessions was empowered to take cognizance of offence under Sections 304-B and 498-A of IPC, when similar application to this effect was rejected by the JMFC while committing the case to Sessions Court, taking cognizance of offence only under Section 306 IPC and specifically refusing to take cognizance of offence under Sections 304-B and 498-A IPC.
It was the contention of prosecution that since the case is triable by the Court of Sessions, it is the Court of Sessions only which is competent to take cognizance and, therefore, order passed by the Sessions Court should be treated as taking cognizance of offence for the first time in terms of Section 193 of the Code.
Both the parties in some way tried to reap out the benefits from the finding of Dharam Pal’s case [(2014) 3 SCC 306] and Nisar and Another v. State of U.P. [(1995) 2 SCC 23]
In Dharam Pal’s case, the Constitution Bench had held that:
(a) The Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report. The Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) of the Code. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused.
Thereafter, if on being prima facie satisfied that a case had been made out to proceed against the persons named in Column 2 of the report, he may proceed to try the said persons or if he is satisfied that a case had been made out which was triable by the Court of Session, he must commit the case to the Court of Session to proceed further in the matter. Further, if the Magistrate decides to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same is found to be triable by the Sessions Court.
(b) The Sessions Judge is entitled to issue summons under Section 193 of the Code upon the case being committed to him by the Magistrate. Section 193 speaks of cognizance of offences by the Court of Session. The key words in the section are that ‘no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code’. The provision of Section 193 entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. The submission that the cognizance indicated in Section 193 deals not with cognizance of an offence but of the commitment order passed by the Magistrate, was specifically rejected in view of the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section.
(c) Cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the Code will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge.
The powers of the Magistrate can be ascertained in view of the above finding is that even if the case is triable by the Court of Session, the function of the Magistrate is not to act merely as a post office and commit the case to the Court of Session, but he is also empowered to take cognizance, issue process and summon the accused and thereafter commit the case to the Court of Session.
The key words in the section are that “no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code”. The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section.
In the instant case, the Police report which was submitted to the Magistrate, the IO had not included the Appellants as accused persons. The complainant had filed application before the Magistrate with prayer to take cognizance against the Appellants as well. This application was duly considered and rejected by the learned Magistrate. The situation thus was not where the investigation report/ chargesheet filed under Section 173(8) of the Code implicated the Appellants and Appellants contended that they are wrongly implicated. On the contrary, the Police itself had mentioned in its final report that case against the Appellants had not been made out. This was objected to by the complainant who wanted the Magistrate to summon these Appellants as well and for this purpose the application was filed by the complainant under Section 190 of the Code.
The Appellants had replied to the said application and after hearing the arguments, the application was rejected by the Magistrate. This shows that order of the Magistrate was passed with due application of mind whereby he refused to take cognizance of the alleged offence against the appellants and confined it only to the son of the Appellants. This order was not challenged. Normally, in such a case, it could not be said that the Magistrate had played ‘passive role’ while committing the case to the Court of Sessions. He had, thus, taken cognizance after due application of mind and playing an “active role” in the process. The position would have been different if the Magistrate had simply forwarded the application of the complainant to the Court of Sessions while committing the case.
In this scenario, it would be a case where Magistrate had taken the cognizance of the offence. Notwithstanding the same, the Sessions Court on the similar application made by the complainant before it, took cognizance thereupon. Normally, such a course of action would not be permissible.
The order of the Magistrate refusing to take cognizance against the appellants is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions was, thus, not powerless to pass an order in its revisionary jurisdiction. Things would have been different had he passed the impugned order taking cognizance of the offence against the Appellants, without affording any opportunity to them, since with the order that was passed by the learned Magistrate a valuable right had accrued in favour of these appellants. However, in the instant case, a proper opportunity was given to the Appellants herein who had filed reply to the application of the complainant and the Sessions Court had also heard their arguments.
The appeal was accordingly dismissed.
[Balveer Singh and Anr. vs. State of Rajasthan & Anr.]
Criminal Appeal No. 253 of 2016