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2014 DIGILAW 735 (JHR)

Rabindra Nath Dubey v. State of Jharkhand

2014-07-15

H.C.MISHRA

body2014
JUDGMENT H. C. Mishra, J. Heard learned counsel for the petitioners and learned counsel for the State as also learned counsel for the Informant. 2. The petitioners are aggrieved by the order dated 29.1.2014, passed by the learned Chief Judicial Magistrate, Jamtara, in G.R. Case No.972 of 2013, whereby the cognizance has been taken against the petitioners for the offence under Sections 498-A/304-B/34 of the Indian Penal Code, even though the petitioners were not sent up for trial upon investigation in the case and the final form was submitted in their favour. 3. The facts of this case lie in a short compass. The petitioners have been made accused in Jamtara P.S. Case No.338 of 2013 corresponding to G.R. No.972 of 2013, for the offences under Sections 498-A/304-B/34 of the IPC, on the allegation that the accused persons being the husband and the in-laws of the deceased lady used to subject her to cruelty and torture for demand of dowry and ultimately, they committed her dowry death. The dead body of the deceased was found hanging in the house. The case was instituted against the husband, and the petitioners, who are the father-in-law, mother-in-law and aunt-in-law of the deceased and the investigation was taken up. After the investigation, the police submitted the charge-sheet against the husband of the deceased only, and has submitted the final form in favour of the petitioners, stating lack of evidence against them. The Court below, from perusal of the case diary, finding materials against these petitioners also, took the cognizance against them as well, and issued summons by order dated 29.1.2014, which is challenged in this application. 4. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in view of the law recently laid down by the Constitution Bench of Supreme Court of India in Dharam Pal & Ors., Vs. State of Haryana & Anr., reported in (2014) 3 SCC 306 . 4. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in view of the law recently laid down by the Constitution Bench of Supreme Court of India in Dharam Pal & Ors., Vs. State of Haryana & Anr., reported in (2014) 3 SCC 306 . According to learned counsel for the petitioners, the Constitution Bench has laid down the law that in the cases triable by the Court of Session, if after the investigation police submits charge-sheet against some of the accused persons and final form in favour of the others, the only course available to the Magistrate is to commit the case to the Court of Session under Section 209 of the Cr.P.C., without taking cognizance under Section 190 of the Cr.P.C. It has been submitted that the law has been laid down by the Supreme Court that the Magistrate has to play only 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. Thereafter, it is for the Court of Session to exercise its original jurisdiction under Section 193 of the Cr.P.C., and to take cognizance of the offence. It is further submitted that the Hon'ble Supreme Court has held that the cognizance cannot be taken twice and it could be taken either by the Magistrate or by the Court of Session. It has also been submitted that following the aforesaid decision, this Court in Pramod Kumar Das Vs. State of Jharkhand, reported in 1914 (2) JBCJ 11, has set aside the order taking cognizance, and has remanded back the case for proceeding in accordance with law. Placing reliance on these decisions, learned counsel for the petitioners has submitted that the impugned order cannot be sustained in the eyes of law. 5. Learned counsel for the State as also learned counsel for the informant, on the other hand have submitted that there is no illegality in the impugned order, in as much as, it is well settled principle of law that upon submission of the final report by the police officer under Section 173 of the Cr.P.C., the Magistrate can apply his judicial mind and can take cognizance of the offence, even though the police has not sent up the accused for the trial. It has also been submitted that even in cases triable by the Court of Session, the power is available to the Magistrate to take cognizance under Section 190 of the Cr.P.C., and thereafter to commit the case to the Court of Session under Section 209 of the Cr.P.C. It has been submitted by the learned counsel for the informant that this power has not at all been taken away from the Magistrate in Dharam Pal's Case (supra). Learned counsel in support of his contention has also placed reliance on the same decision in Dharam Pal's Case (supra), as also in Uma Shankar Singh V. State of Bihar & Anr., reported in (2010) 9 SCC 479 , and other such cases, which need not be discussed in detail. 6. Dharam Pal's case was initially directed to be heard by a three-Judge Bench in the Supreme Court of India, in view of the conflict of opinion of the two-Judge Benches in Kishori Singh Vs. State of Bihar, reported in (2004) 13 SCC 11 , Rajinder Prasad Vs. Bashir, reported in (2001) 8 SCC 522 and SWIL Ltd. Vs. the State of Delhi, reported in (2001) 6 SCC 670 . When the matter was taken up for consideration by the three-Judge bench on 1.12.2014, it was brought to the notice of the Court that two other decisions of the Apex Court had direct bearing on the question sought to be determined. The first was in Kishun Singh Vs. State of Bihar, reported in (1993) 2 SCC 16 and the other was in Ranjit Singh Vs. State of Punjab, reported in (1998) 7 SCC 149 . In Ranjit Singh's Case, the observation made in Kishun Singh’s Case was disapproved, which was to the effect that the Sessions Court has power under Section 193 of the Cr.P.C., to take cognizance of offence and summon the other persons whose complicity in the commission of the trial could prima facie be gathered from the materials available on record. When the matter was taken up before the Constitution Bench in Dharam Pal's Case (supra), the Apex Court framed six questions, which required consideration by the Constitution Bench, which are as follows:- “7.1. Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? 7.2. Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? 7.2. If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in Column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report? 7.3. Having decided to issue summons against the appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure? 7.4. Can the Session Judge issue summons under Section 193 CrPC as a Court of original jurisdiction? 7.5. Upon the case being committed to the Court of Session, could the Sessions Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto? 7.6. Was Ranjit Singh Case which set aside the decision in Kishun Singh case, rightly decided or not?” 7. The question 7.2, which has direct bearing to the present case, was answered by the Supreme Court in the following terms:- “35. in our view, 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) Cr.P.C. 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. 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 satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.” (Emphasis supplied). Thus, from a plain reading of the law laid down by the Constitution Bench of Supreme Court of India, it is clear that in the event the Magistrate disagrees with the police report, he has two choices, one of them is that he may upon taking the cognizance on the police report, disagree with the police report and issue process summoning the accused persons named even in column–2 of the report, and if the case is triable by the Court of Session, he may commit the case to the Court of Session, to proceed further in the matter. 8. Questions No.7.4, 7.5 and 7.6 have been decided jointly by the Constitution Bench and it has been held as follows:- “37. Questions 4, 5 and 6 are more or less interlinked. The answer to Question 4 must be in the affirmative, namely, that the Sessions Judge was entitled to issue summons under Section 193 CrPC upon the case being committed to him by the learned Magistrate. 38. Section 193 of the Code Speaks of cognizance of offences by the Court of Session and provides as follows:- “193. Cognizance of offences by Courts of Session – Except as otherwise expressly provided by this Code or by any other law for the time being in force, 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.” *** *** *** 39. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that 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, proceed 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 learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned 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 learned Sessions Judge.” 9. Learned counsel for the petitioners has given much stress on these paragraphs submitting that in such cases, the Magistrate has no power to take cognizance and the Magistrate has only to play 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. Much stress has been given by the learned counsel for the petitioner submitting, that it has been held that in the event the Magistrate takes the 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 proceed to issue summons, is not in accordance with law. If the cognizance is to be taken of the offence, it could be taken either by Magistrate or by the Court of Session. 10. If the cognizance is to be taken of the offence, it could be taken either by Magistrate or by the Court of Session. 10. The fact however, remains that in the entire Judgment, it is no where held that when the police report is submitted under Section 173 of the Cr.P.C., and if the case is triable by the Court of Session, the Magistrate shall not take cognizance under Section 190 of the Cr.P.C., and the only course open to the Magistrate is to commit the case to the Court of Session under Section 209 of the Cr.P.C., without taking the cognizance. In this case, it has been clearly held that the law laid down by the Supreme Court in Kishun Singh's case, reported in (1993) 2 SCC 16 , is the correct law with respect to the powers of the Sessions court after committal of the case to it by the learned Magistrate under Section 209 of the Cr.P.C. This brings us to the law laid down by the Supreme Court in Kishun Singh's case, reported in (1993) 2 SCC 16 , in which the law has been laid down as follows:- “7. -----------------Even though the expression ‘take cognizance’ is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Sections 200/204 of the Code (see Jamuna Singh v. Bhadai Sah, [ (1964) 5 SCR 37 ]. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Sections 200/204 of the Code (see Jamuna Singh v. Bhadai Sah, [ (1964) 5 SCR 37 ]. It is, therefore, obvious that if on receipt of a complaint under Section 154 of the Code in regard to a cognizable offence, an offence is registered and the concerned police officer embarks on an investigation and ultimately submits a police report under Section 173 of the Code, the Magistrate may take cognizance and if the offence is exclusively triable by a Court of Sessions, he must follow the procedure set out in Section 209. That section provides that when in a case instituted on a police report, as defined in Section 2(r), or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session and remand the accused to custody. Section 193 of the old Code and as it presently stands have a bearing and may be extracted at this stage: “Old Code 193. Cognizance of offences by Courts of Session.— (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. New Code 193. Cognizance of offences by Courts of Session.— Except as otherwise expressly provided by this Code or by any other law for the time being in force, 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.” It may immediately be noticed that under the old provision a Court of Session could not take cognizance of an offence as a court of original jurisdiction unless the accused was committed to it whereas under the recast section as it presently stands the expression the accused has been replaced by the words the case. As has been pointed out earlier, under Section 190 cognizance has to be taken for the offence and not the offender. So also under Section 193 the emphasis now is to the committal of the case and no more on the offender. So also Section 209 speaks of committing the case to the Court of Session. On a conjoint reading of these provisions it becomes clear that while under the old Code in view of the language of Section 193 unless an accused was committed to the Court of Session the said court could not take cognizance of an offence as a court of original jurisdiction, now under Section 193 as it presently stands once the case is committed the restriction disappears. -------. *** *** *** 13. ----------------. We have already pointed out earlier the two alternative modes in which the Criminal Law can be set in motion; by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may culminate in a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190(1)(b) of the Code. -------------, Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under Section 191) or commit him for trial under Section 209 of the Code if the offence is triable exclusively by a Court of Session. As pointed out earlier cognizance is taken of the offence and not the offender. ---------- 16. We have already indicated earlier ------ that once the court takes cognizance of the offence (not the offender) it becomes the court’s duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court’s duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance. ----------Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. ------------.” (Emphasis supplied). 11. From the law laid down as above, it is apparent that even if the expression ‘take cognizance’ is not defined, it is well settled by the catena of decisions that when the Magistrate takes notice of the accusations and applies his mind to the allegations and on being satisfied with the allegation that if proved, would constitute the offence, decides to initiate judicial proceeding against the alleged offender, is said to have taken the cognizance of the offence. It is equally well settled that the cognizance is in regard to the offence and not the offender. Once the cognizance of offence is taken, it becomes the Court's duty to find out, who the offenders really are, and if the Court finds and that apart from the person sent up by the police, some other persons are also involved, it is the duty to proceed against those persons by summoning them because the summoning of the additional accused is part of the proceeding initiated by its taking cognizance of the offence. Upon the Magistrate committing the case under Section 209 to the Court of Session, the Court of Session has unfettered jurisdiction in the Court of original jurisdiction to take cognizance of the offence, which would include the summoning of the person or persons, whose complicity in the commission of the crime can prima facie be gathered from the material available on record. It is this view which has been affirmed by the Constitution Bench of Supreme Court of India in Dharam Pal's Case (supra). It is this view which has been affirmed by the Constitution Bench of Supreme Court of India in Dharam Pal's Case (supra). It is thus, apparent that it is not the case that once the cognizance of the offence (not the offender) is taken by the Magistrate under Section 190 of the Cr.P.C., and case is committed to the Court of Session under Section 209 of the Cr.P.C., upon finding that the case is triable by the Court of Session, the Court of Session is required to take the cognizance again against the persons, who were not sent up for trial. In Kishun Singh's Case (Supra), it is squarely held that the cognizance is taken of the offence and not of the offender. Accordingly, even if the Magistrate takes the cognizance of the offence and commits the case to the Court of Session, without summoning the accused persons, in whose favour the final form is submitted by the police, it is always open to the Court of Session to apply its judicial mind to the material on record and issue summons to such accused persons, who are not summoned by the Magistrate. If the Magistrate commits the case after summoning the accused persons, who are not sent up by the police for trial, the Court of Session shall proceed from the stage thereafter. 12. Upon going through the law laid down by the Supreme Court in these decisions, it is apparently clear that in such cases, where after the investigation, the police submits charge-sheet against some of the accused persons and submits the final form in favour of the other accused persons and the case is triable by the Court of Session, the Magistrate may take the cognizance and commit the case to the Court of Session for trial and the Court of Session while exercising the power under Section 193 of the Cr.P.C., may issue summons to those accused persons for facing the trial, who were not sent up for trail. Similarly, it is also open to the Magistrate to take cognizance of the offence and summon the accused who were sent up for trial by the police, if the Magistrate is satisfied that there are sufficient materials on record to put them to trial and after appearance / production of the said accused persons, commit the case to the Court of Session, where the Court of Session shall proceed from the stage of Section 211 of the Cr.P.C. There is no question of taking the cognizance twice, once by the Magistrate and subsequently by the Court of Session, in as much as, the cognizance is taken of the offence and not of the offender. In my considered view, the submission of the learned counsel for the petitioner that in such cases, the Magistrate cannot take cognizance and it is only for the Court of Session to take cognizance and proceed further, cannot be accepted. There is no such ratio laid down by the Constitution Bench of the Supreme Court of India in Dharam Pal's case (supra). Rather, question No.7.2, which has direct bearing to the question of law involved in the present case, has been decided by the Constitution Bench holding that in the event the Magistrate disagrees with the police report, he has two choices, one of them is that he may upon taking the cognizance on the police report, disagree with the police report and issue process summoning the accused persons named even in column–2 of the report, and if the case is triable by the Court of Session, he may commit the case to the Court of Session, to proceed further in the matter. 13. In the present case, the course adopted by the learned Chief Judicial Magistrate, Jamtara, of taking cognizance of the case upon the materials in the case diary, and upon finding sufficient materials to put the petitioners also on trial, summoning them pending the committal proceeding, in my considered view, is fully in consonance of the law laid down by the Apex Court in answer to the question No.7.2 framed by it in Dharam Pal's case (supra). 14. Even otherwise, Section 460 of the Cr.P.C., lays down as follows:- “460. Irregularities which do not vitiate proceedings. 14. Even otherwise, Section 460 of the Cr.P.C., lays down as follows:- “460. Irregularities which do not vitiate proceedings. --If any Magistrate not empowered by law to do any of the following things, namely- (a) ------- (b) ------- (c) ------- (d) ------- (e) to take cognizance of an offence under clause (a) or clause (b) of sub-Section (1) of Section 190; (f) -------- (g) -------- (h) -------- (i) -------erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.” 15. From plain reading of Section 460(e) of the Cr.P.C., it is apparent that even if the cognizance of the offence is taken erroneously by the Magistrate, the proceeding shall not be set-aside simply on the ground of his not being so empowered and this does not vitiate the proceeding. 16. Accordingly, I do not find any illegality and/or irregularity in the impugned order taking cognizance of the offence against the petitioners by the order dated 29.1.2014passed by the learned Chief Judicial Magistrate, Jamtara, in G.R. Case No.972 of 2013. Even otherwise, if the cognizance is taken even erroneously, the same cannot vitiate the proceeding, as the same stands protected under Section 460 of the Cr.P.C. 17. Accordingly, there is no merit in this application, and same, is hereby, dismissed.