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2012 DIGILAW 2283 (ALL)

PRABHA GOYAL v. STATE OF U. P.

2012-09-28

MAHENDRA DAYAL

body2012
JUDGMENT Hon’ble Mahendra Dayal, J.—Both the aforesaid criminal revisions have been filed against the order dated 2.1.2010 passed by the Chief Judicial Magistrate, Mathura in Criminal Case No. 4613 of 2007 (State v. Baldev Prasad) under Sections 406, 420, 467, 468, 465, 471 and 120-B IPC Police Station Kotwali District Mathura whereby the Chief Judicial Magistrate Mathura has taken cognizance against the revisionist. 2. I have heard counsel for the parties. Learned counsel for the revisionists submits that on the basis of the order passed under Section 156 (3) Cr.P.C the case against one Baldev Prasad Agrawal and the revisionists was registered at Kotwali, Mathura being crime No. 402 of 2007. 3. The police after investigation submitted the charge-sheet only against Baldev Prasad as in the opinion of the investigating officer no offence was made out against the revisionists. 4. The Chief Judicial Magistrate took cognizance of the offence and issued process against Baldev Prasad. When he appeared, he filed a criminal revision No. 306 of 2008 before the Sessions Judge which was transferred to the Court of Additional Sessions Judge Court No. -1, Mathura and was dismissed on 22.4.2009. 5. After the dismissal of the revision when the matter was again taken up by the CJM, the complainant namely Rajender Singh moved an application on 17.8.2009 stating therein that the revisionist has also committed the offence but the police did not submit charge-sheet against them. A prayer was made on behalf of the complainant that the revisionists be also summoned and tried alongwith Baldev Prasad. The CJM after examining the material on record passed the impugned order summoning the revisionists. 6. The learned counsel for the revisionists further submits that when the charge-sheet was submitted by the police against Baldev Prasad the Magistrate took cognizance as per the charge-sheet and issued process against him only. This order was passed after going through the case diary and application of mind. Thus the Magistrate at the initial stage while taking the cognizance did not find it proper to summon the revisionists. When Baldev Prasad preferred revision and his revision was dismissed, the complainant moved the application before the Chief Judicial Magistrate and the Chief Judicial Magistrate passed the impugned order by which process was issued against the revisionists also. 7. While relying upon the decision of Supreme Court Jile Singh v. State of U.P. and another, 2012 CRL. When Baldev Prasad preferred revision and his revision was dismissed, the complainant moved the application before the Chief Judicial Magistrate and the Chief Judicial Magistrate passed the impugned order by which process was issued against the revisionists also. 7. While relying upon the decision of Supreme Court Jile Singh v. State of U.P. and another, 2012 CRL. L.J. 1603, it is submitted on behalf of the revisionist that the Magistrate had no jurisdiction to add any accused at the stage when the impugned order was passed. 8. The Supreme Court has held that once the stage of Section 209 Cr.P.C is reached, it is not open to the Magistrate to exercise power under section 204(1)(b) of the code and issue process to the accused. The proper course for him is to wait till the trial begins and the evidence of the prosecution is recorded. If after the examination of the witnesses the Magistrate finds sufficient evidence against the accused against whom charge-sheet was not submitted by the police only then he may summon such accused persons exercising power under Section 319 Cr.P.C. but once the process is issued against the charge-sheeted accused then at a later stage the Magistrate cannot issue process against other persons. 9. The facts of the present case are entirely different and the law laid down by the Supreme Court is not at all applicable to the facts of the present case. In case in which the Supreme Court laid down the aforesaid proposition the Magistrate had committed the case to the Court of session because the offence was triable by session Court. After committal of the case to the Court to the session under Section 209 of the code, the Magistrate exercised powers under Section 204 and passed an order summoning the other accused persons. Under these facts the Supreme Court held that once the case is committed to the Court of session, the powers of the Magistrate to summon the additional accused is impermissible. 10. In the case in hand, the offence is admittedly triable by Magistrate and any order of committal is not to be passed. The impugned order has been passed under Section 204 of the code after taking cognizance of the offence. The law cited by the revisionists, therefore, does not help them. It is an undisputed legal position that the Magistrate takes cognizance of the offence and not the offender. The impugned order has been passed under Section 204 of the code after taking cognizance of the offence. The law cited by the revisionists, therefore, does not help them. It is an undisputed legal position that the Magistrate takes cognizance of the offence and not the offender. On the charge-sheet submitted by the police, he took cognizance of the offence and not the accused who was charge-sheeted by the police. 11. The learned AGA submits that it is a settled law that the Magistrate is not bound by the conclusion of the investigating officer. If in the opinion of the magistrate there is a sufficient evidence in the case diary against any person, he can very well issue process against him, even if they are not named in the charge-sheet. At this stage there is no question of application of section 319 Cr.P.C. 12. The right of the Magistrate to take cognizance on protest petition or otherwise even against those accused against whom the police choses not to submit the charge-sheet or records a finding that no case against them is disclosed, but on an independent consideration of the material collected by the Investigating Officer if the Magistrate is satisfied that a prima facie case for cognizance was made out against the additional accused, he can issue process against them. 13. Section 190(1)(b) does not lay down that a Magistrate takes cognizance of an offence only if the investigating officer gives opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit. 14. In view of the observations made above, there is no merit in both the criminal revisions and they are liable to be dismissed. However, it is open to the revisionist to move an application for discharge before the Court concerned through their counsel and if such an application is moved by them within a period of one month from the date of this order, the Magistrate shall consider the same, in accordance with law and shall pass appropriate orders after giving opportunity of hearing to the parties concerned. It is further made clear that if any application for discharge is moved within the aforesaid period, no coercive measures will be taken against the revisionists till the disposal of their application but in case any such application is not moved within a month, the Magistrate shall be free to proceed in accordance with law. With these observations, both the Criminal Revisions are dismissed. ——————