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2010 DIGILAW 76 (MP)

Pistabai v. Narendra Singh

2010-01-19

S.S.DWIVEDI

body2010
ORDER S.S. Dwivedi, J. 1. The applicant/complainant has preferred this revision under Section 397 of the Code of Criminal Procedure, feeling aggrieved by the order dated 17-12-2004 passed by Second Additional Sessions Judge, Ashok Nagar, in Cri. Revision No. 224/04, whereby set aside the order dated 21-9-2004 and 4-7-2004 passed by JMFC, Ashok Nagar in Criminal Case No. 436/2004 whereby the Trial Magistrate has taken cognizance against respondent No. 1 for the offence punishable under Sections 376 and 354 of IPC. 2. Brief facts of the case are, the applicant/complainant Pistabai had lodged the FIR at the Police Station Nai Sarai with regard to the allegation against the respondent No. 1 that on 25-3-2003 at about 11 o'clock in the night the complainant was in her house, at that time accused Narendra Singh entered into the room, used criminal force on the complainant/prosecutrix and also committed rape on her. The police registered the case but refused to take cognizance against the accused. Thereafter, the applicant/complainant filed a private complaint before the JMFC Ashok Nagar. In this complaint case after recording of the statement of the complainant and other witnesses the learned Trial Magistrate by order dated 5-6-2004 had taken cognizance against the respondent-accused Narendra Singh and registered the case under Sections 376 and 354 of IPC and ordered for issuance of the arrest warrant for the presence of the respondent/accused Narendra Singh, Thereafter on 15-7-2004 the respondent-accused appeared before the Court and filed an application for dismissal of the complaint under Section 204 of IPC. The learned Trial Magistrate on 21-9-2004 after hearing both the parties dismissed the aforesaid application on the ground that once the cognizance has been taken, the Trial Magistrate is having no jurisdiction to recall the earlier order passed by him for taking cognizance against the accused. Aggrieved by which the respondent-Narendra Singh preferred a Criminal Revision No. 224/2004, which has been decided by the Second Additional Sessions Judge, Ashok Nagar by the impugned order dated 17-12-2004 and allowed the revision petition, set aside both the orders dated 5-6-2004 and 21 -9-2004 passed by the Trial Magistrate and dismissed the complaint filed by the applicant. Aggrieved by the aforesaid impugned order the applicant/complainant came up before this Court by this revision petition. 3. Having heard the learned Counsel for the parties and perused the record. 4. Aggrieved by the aforesaid impugned order the applicant/complainant came up before this Court by this revision petition. 3. Having heard the learned Counsel for the parties and perused the record. 4. It is submitted on behalf of the applicant/complainant that the learned Revisional Court committed error in setting aside of the impugned order passed by the Trial Magistrate. The Trial Magistrate after consideration of the prima facie evidence recorded under Sections 200 and 202, Cr.P.C. rightly came to the conclusion for taking cognizance against the respondent/accused Narendra Singh and at the stage of taking cognizance the Trial Magistrate is not supposed to go into the proposed defence of the accused and also having no jurisdiction to evaluate the statement of the complainant with her previous statement recorded by the police during investigation of the crime concerned and in such circumstances, the learned Revisional Court wrongly set aside the aforesaid order passed by the Trial Magistrate. It is the jurisdiction of the Trial Court after commitment of the case to consider at the time of charge as to whether the prima facie case against the accused is made out or not. 5. In reply, learned Counsel appearing on behalf of the respondent/accused Narendra Singh supported the impugned judgment and prayed for dismissal of the revision petition. 6. The State is a formal party in this revision. 7. On consideration of the rival contentions of both the Counsel, it is apparent that the learned Trial Magistrate has taken cognizance by order dated 5-6-2004 after consideration of the statement of the complainant/prosecutrix recorded under Section 200, Cr.P.C. and the statements of other witnesses Ramkrishna, Ramkobai, Gappalal and Jagdish recorded under Section 202, Cr.P.C. At the stage of taking cognizance the Trial Magistrate is not supposed to go into the details about the truthfulness of the statement given by the complainant and other witnesses on oath before the Trial Magistrate. On the material contradictions and omissions in the previous statement recorded in some enquiry only the Trial Court after due cross-examination on the witnesses can form an opinion as to whether the complainant and other witnesses have stated truly about the incident or not. This duty cannot be casted upon the Magistrate who has taken the cognizance. 8. On the material contradictions and omissions in the previous statement recorded in some enquiry only the Trial Court after due cross-examination on the witnesses can form an opinion as to whether the complainant and other witnesses have stated truly about the incident or not. This duty cannot be casted upon the Magistrate who has taken the cognizance. 8. On perusal of the impugned order passed by the Revisional Court, it is apparent that the Revisional Court has elaborately gone into the merits of the statement of the complainant without giving an opportunity to the complainant to explain as to whether the police has recorded her statement truly or not and unless the witnesses, who deposed before the police and also deposed before the Court have an opportunity to explain about the omissions and contradictions, these omissions and contradictions cannot be the basis for setting aside of the impugned order passed by the Magistrate for taking of the cognizance against the respondent/accused. 9. With regard to the rejection of an application filed on behalf of the respondent/accused Narendra Singh, in a leading case of Adalat Prasad v. Rooplal Jindal and Ors. reported in (2004) 7 SCC 338 , it is clearly laid down that "once the Magistrate has taken cognizance against the accused then the Magistrate is not having any jurisdiction to recall his order passed under Section 203 of Cr.P.C." The relevant paras of the aforesaid judgment are here as under: 14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the Court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the Subordinate Criminal Courts, the remedy lies in invoking Section 482 of the Code. 10. Similarly, the Revisional Court cannot go into the proposed defence of the accused which ought to be taken by him during trial for quashment of the order of taking cognizance by the Magistrate. For this proposition the reliance can be placed on the decision of the Allahabad High Court in Thakur Singh and Anr. v. State of U.P. and Anr. reported in 2002 Cri.L.J. 131, wherein it is held that "at the time of taking cognizance the allegations made in the complaint and evidence adduced in support thereof are to be considered and not the proposed defence of the accused". 11. v. State of U.P. and Anr. reported in 2002 Cri.L.J. 131, wherein it is held that "at the time of taking cognizance the allegations made in the complaint and evidence adduced in support thereof are to be considered and not the proposed defence of the accused". 11. In view of the aforesaid facts of the case, in my considered opinion, the learned Revisional Court committed error in dismissing the complaint filed by the applicant/complainant. 12. Resultantly, the revision petition filed on behalf of the applicant succeeds and is hereby allowed. The impugned order passed by the Revisional Court is set aside and the case is sent back to the learned JMFC Ashok Nagar to proceed with the case at the stage of committal proceeding and proceed with the case according to law.