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2005 DIGILAW 698 (MP)

DEVRAJ v. STATE OF M. P.

2005-07-11

SUGANDHI LAL JAIN

body2005
ORDER S.L. Jain, J. Invoking the revisional jurisdiction of this Court u/s 397 read with 401 of the Code of Criminal Procedure, petitioner Devraj has filed this petition for setting aside the order dated 18-1-1997 passed by JMFC, Ashta, District Sehore by which learned Magistrate took cognizance against the petitioner for offence punishable u/s 302 of the Indian Penal Code. On 14-7-1995 Krishna Bai lodged a Dehati Nalishi against the petitioner stating that on that very day at about 9 AM, when she was cooking food, the petitioner, who is her nephew, being the son of her brother-in-law, poured kerosene on her and set her ablazed. On hearing her cries, her husband Babulal and other villagers reached the spot and took her to Ashta Hospital. On the report of Krishna Bai, an offence u/s 307 of the Indian Penal Code was registered. The dying declaration of Krishna Bai was also recorded by Executive Magistrate at about 1.45 P.M. on 14-7-1995 itself. Krishna Bai succumbed to her injuries. After investigation, a challan for an offence punishable u/s 306 of the Indian Penal Code was filed against the petitioner in the Court of JMFC, Ashta. The Magistrate, vide order impugned took the cognizance u/s 190 of the Code of Criminal Procedure against the petitioner for an offence punishable u/s 302 of the Indian Penal Code on the basis of material available on record. It is this order of the JMFC which has been challenged in this revision petition. I have heard Shri Ashutosh Singh, learned counsel for the petitioner and Shri Aseem Dixit, learned Government Advocate for the respondent/State. Learned counsel for the petitioner vehemently argued that the learned Magistrate had no power either u/s 190 or any other provision of the Code of Criminal Procedure to take cognizance of an offence triable by the Court of Session. The learned Magistrate could not have substituted the result of the investigation. A perusal of section 190 of the Code of Criminal Procedure reveals that the Magistrate First Class has jurisdiction to take cognizance of any offence. The section does not say that the Magistrate has no jurisdiction to take cognizance of an offence which is triable by the Court of Session. Therefore, the contention that the Magistrate has no jurisdiction to take cognizance of the offence triable by the Court of Session is not acceptable. The section does not say that the Magistrate has no jurisdiction to take cognizance of an offence which is triable by the Court of Session. Therefore, the contention that the Magistrate has no jurisdiction to take cognizance of the offence triable by the Court of Session is not acceptable. There is absolutely no embargo upon the Magistrate to look into the case diary and other material while considering the police report to have complete assessment and comprehensive picture and the relevant material to facilitate the conclusion with regard to the cognizance of an offence and thereby charge the accused for offences other than those mentioned in the police report on the basis of said material on record. Section 190(1) (b) the Code of Criminal Procedure empowers the Magistrate to defer with a police report be it a charge-sheet or be it a final report so called. Where the Magistrate took cognizance after perusing the FIR and other documents and satisfied himself that there was a prima facie case to take cognizance for an offence punishable u/s 302 of the Indian Penal Code, this Court, in exercise of its revisional power cannot interfere with it. The scope for interference u/s 397 of the Code of Criminal Procedure with an order taking cognizance when the prosecution is at the initial stage, is very limited and has to be applied rarely with circumspection only when uncontroverted allegations do not establish the offence. Learned counsel for the petitioner submits that on the perusal of the case diary statements recorded u/s 161 of the Code of Criminal Procedure, it cannot be said that the offence u/s 302 of the Indian Penal Code is made out. The contention is not acceptable. A perusal of Dehati Nalishi and dying declaration and other material on record, prima facie, discloses an offence u/s 302 of the Indian Penal Code. The scope of the revisional jurisdiction being very limited, the High Court cannot launch a detailed and meticulous examination of the case on merits and set aside Magistrate's order taking cognizance. Whether on the basis of the material available on record accused can be convicted u/s 302 of the Indian Penal Code or not can be decided by the trial Court only at the appropriate stage. As a result of above discussion, I do not find any illegality or irregularity in the order impugned. Whether on the basis of the material available on record accused can be convicted u/s 302 of the Indian Penal Code or not can be decided by the trial Court only at the appropriate stage. As a result of above discussion, I do not find any illegality or irregularity in the order impugned. The revision petition is, therefore, sans merit and the same is, accordingly, dismissed.