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2010 DIGILAW 611 (RAJ)

Prem Singh v. State of Rajasthan

2010-03-16

M.N.BHANDARI

body2010
JUDGMENT 1. - By this criminal miscellaneous petition, a challenge has been made to the order dated 06.08.2009 whereby the revision petition filed by the petitioner was dismissed. 2. A revision petition was filed to challenge the order dated 13.12.2002 passed by the Chief Judicial Magistrate, Bharatpur and also the order dated 16.12.2002 passed by the Additional Chief Judicial Magistrate, Bharatpur. It is stated that on filing complaint, the case was registered by the Court of Chief Judicial Magistrate. He had taken cognizance and accordingly, the matter was placed for recording of evidence of the complainant under Section 200 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C."). After drawing above referred order, the impugned order dated 13.12.2002 was passed, whereby the complaint was returned back to the complainant for its presentation to the Court of Additional Chief Judicial Magistrate having jurisdiction over Police Station Mathura Gate. The complainant accordingly,2 submitted complaint before the Additional Chief Judicial Magistrate. On filing of the complaint before the Additional Chief Judicial Magistrate, an order under Section 156(3) of the Cr.P.C. was passed. Pursuant to the order, the police made investigation and submitted charge sheet, the Court passed order taking cognizance. The matter was thereafter heard for framing of the charges and the charges were framed vide order dated 11.05.2004. 3. Learned counsel for the petitioner submits that the order of the Chief Judicial Magistrate to return back the complaint to the complainant was illegal after taking cognizance of the offence and even the order of the Additional Chief Judicial Magistrate for directing police to make investigation pursuant to the provisions of Section 156(3) of Cr.P.C. On the aforesaid ground, the two orders have been challenged as it goes in the root of the case. For supporting his argument, the judgment of the Hon'ble Apex Court in the case of Devarapalli Lakshmi narayana Reddy & Ors. v. V. Narayana Reddy & Ors. reported in AIR 1976 SC 1672 has been referred wherein the Hon'ble Apex Court came to the conclusion that expression "taking cognizance of an offence" by the Magistrate has not been defined in the Code. v. V. Narayana Reddy & Ors. reported in AIR 1976 SC 1672 has been referred wherein the Hon'ble Apex Court came to the conclusion that expression "taking cognizance of an offence" by the Magistrate has not been defined in the Code. The cognizance can be said to be taken when the Magistrate applies his mind for proceeding under Section 200 of Cr.P.C. In view of the aforesaid, the Chief Judicial Magistrate having passed an order for recording evidence of the3 complainant under Section 200 of Cr.P.C., the cognizance of the offence has been taken, thus at that stage, the matter could not have been returned back to the complainant. 4. Learned Public Prosecutor on the other hand opposed this petition and submits that learned Revisional Court has considered all the aspects of the matter as raised by the learned counsel for the petitioner herein. It is a matter where after passing two orders on 13.12.2002 as well as on 16.12.2002not only the police made investigation but charge sheet was also filed followed by the order of cognizance and framing of the charges. The petitioner has not challenged those orders and belatedly challenge the orders referred to above. Since, the charge has been framed after the order of cognizance, the issue raised in the present matter remains of no consequence. The petitioner could have raised all such objections while cognizance was taken or at the time, when the matter was heard for framing of the charges. He failed to challenge subsequent orders, filed the revision petition belatedly to challenge two orders referred above. 5. I have considered the rival submissions made by the learned counsel for the parties and given my thoughtful consideration. 6. It is a case where no doubt complaint was initially filed before the Court of Chief Judicial Magistrate, who then passed an order on 20.11.2002 for recording evidence under Section 200 of Cr.P.C. Perusal of the order does not show that learned Chief Judicial Magistrate applied his mind for taking cognizance of offence. 6. It is a case where no doubt complaint was initially filed before the Court of Chief Judicial Magistrate, who then passed an order on 20.11.2002 for recording evidence under Section 200 of Cr.P.C. Perusal of the order does not show that learned Chief Judicial Magistrate applied his mind for taking cognizance of offence. In view of the judgment referred by the learned counsel for the petitioner, the words "taking cognizance of offence" has not been defined but the manner cognizance can be taken are set out in clause (a) (b) (c) of Section 190(1) of Cr.P.C. According to the Hon'ble Apex Court, if the order passed by the Magistrate is speaking one on receiving complaint, the Magistrate applied his mind for the purpose of proceeding under Section 200 of Cr.P.C. and the succeeding section of chapter XV of the Code of Criminal Procedure. He is said to have taken cognizance of officer within the meaning of Section 190(1) of Cr.P.C. Perusal of the order dated 20.11.2002 does not show it to be a speaking order passed after applying its mind to take cognizance of the offence. In fact, aforesaid does not show application of mind for taking cognizance. It is true that order further indicates for proceeding under Section 200 of the Cr.P.C., however, that remains of no consequence in view of the finding aforesaid, as the order dated 20.11.2002 is not speaking and does not disclose application of mind of learned Chief Judicial Magistrate for taking cognizance. The case was returned back to the complainant on the next date i.e. 13.12.2002 at the stage, when cognizance of offence cannot be said to have taken in view of the finding aforesaid. My view5 is supported by a recent judgment of Hon'ble Apex Court reported in AIR 2008 1213. 7. The facts now remain as to subsequent presentation of the complaint before the Additional Chief Judicial Magistrate, who then passed an order under Section 156(3) of Cr.P.C. for investigation. 8. In the present matter not only the investigation has already been completed but on filing charge sheet, cognizance was taken followed by order of framing of charges. 7. The facts now remain as to subsequent presentation of the complaint before the Additional Chief Judicial Magistrate, who then passed an order under Section 156(3) of Cr.P.C. for investigation. 8. In the present matter not only the investigation has already been completed but on filing charge sheet, cognizance was taken followed by order of framing of charges. The petitioner did not raise objection at the first available occasion, against the order passed by the Additional Chief Judicial Magistrate under Section 156(3) of Cr.P.C. and thereby allowed the Court to proceed with the matter not only to take cognizance but to further frame the charges. Having allowed the Court to proceed with the matter, belatedly a revision petition was filed. The Court below has taken note of the aforesaid aspects of the matter and thereby came to the conclusion that the challenge to the orders is no more survives. Learned counsel for the petitioner, however, submits that even such orders can be challenged at the appellate stage. In view of the aforesaid, it is tried to impress upon that challenge to the order dated 13.12.2002 so as the order dated 16.12.2002 was not belatedly and should not have been rendered infructuous. 9. I have given my thoughtful consideration on the aforesaid aspects also, since I have came to the conclusion that order dated 20.11.2002 is not or can be said to be a order "taking cognizance of offence", hence an order for evidence under Section 200 of Cr.P.C. remains of no consequence. The complaint was returned back to the complainant, which was presented afresh to the competent Court i.e. the Additional Chief Judicial Magistrate. In view of the aforesaid finding and order passed for investigation by police under Section 156(3) of Cr.P.C. cannot be said to be illegal. 10. In view of the finding aforesaid, I am not inclined to accept this petition more so when petition under Section 482 of Cr.P.C. against the order passed by the Revisional Court is nothing but a second revision petition. In view of the judgment of the Hon'ble Apex Court, second revision petition in the shape of 482 of Cr.P.C. can be entertained only in rare of rarest cases. The case in hand is not falling in that category, thus for this reason also, I am not inclined to accept the petitioner. 11. The criminal miscellaneous petition is dismissed, accordingly. 12. The case in hand is not falling in that category, thus for this reason also, I am not inclined to accept the petitioner. 11. The criminal miscellaneous petition is dismissed, accordingly. 12. The matter is now old by eight years in a complaint, thus the Court below is expected to proceed expeditiously so that the trial can be concluded within the reasonable time this is more so7 when the order under challenge is of the month of August 2009and a period of more than 8 months has already passed by now.Petition dismissed. *******