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2016 DIGILAW 3179 (ALL)

Rajendri Devi v. State of U. P.

2016-09-16

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. 1. Present Sri R.P.S. Chauhan for applicant, Sri Devesh Kumar Shukla for O.P. no.-2 and AGA for the O.P. no.-1 State. Heard and perused the record. 2. Admitted facts of the matter is that son of complainant-applicant, opposite party no.-2 had died. On report lodged by Rakesh Kumar father of the deceased, that case was investigated, in which after investigation, charge-sheet was filed by the police for offence under section 304-A IPC. Thereafter Rajendri Devi, the mother of the deceased (present applicant) had filed complaint case no. 6381 of 2014. in this case, after accepting evidences under section 200 and 202 CrPC, the court of ACJM-II, Aligarh had passed order of cognizance and summoning against opposite party no.-2 (Ranjeet) on 31.3.2015 for offence under section 304 IPC. 3. Against the aforesaid order dated 31.3.2015, Criminal Revision No. 329 of 2015 (Ranjeet Vs. State of UP & another) was preferred by present opposite party no.-2 Ranjeet. The revisional court had allowed this revision on 7.5.2016 and quashed the order dated 31.3.2015 of trial court, and directed that on the basis of discussion mentioned in this judgment, trial court will dispose of the matter again on the point of summoning. This order dated 7.5.2016 of lower revisional court has been challenged through present application under section 482 CrPC. 4. Counsel for the applicant contended that it is a settled legal position that when for same incident two orders of cognizance has been passed and two proceedings have been initiated, then those proceedings should be clubbed under section 210 CrPC, but the trial court had erroneously rejected such request of applicant. He further submitted that lower revisional court had wrongly held in its judgment dated 7.5.2016 that after taking once the cognizance of offence relating an offence, the court cannot take cognizance of another offence again for same incident. His submission was that earlier charge-sheet was filed by police for offence under section 304-A IPC, but after inquiry in complaint case, court had found the commission of offence under section 304 IPC. Therefore, this matter has to be considered in trial court and both the trials initiated on the basis of police report and on the basis of complaint case regarding same incident should be carried out together. 5. Counsel for opposite party no. Therefore, this matter has to be considered in trial court and both the trials initiated on the basis of police report and on the basis of complaint case regarding same incident should be carried out together. 5. Counsel for opposite party no. 2 cited the judgment of Single Bench of Rajasthan High Court in the case of Heera Lal Vs. State of Rajasthan, 1999 CrLJ 3450 and relied this observation of said Court that if once the Magistrate took the cognizance of offence either on the basis of private complaint or on the basis of police report, then it is not permissible for him to take cognizance again on same offence. Counsel for the applicant contended that this legal position is not acceptable in light of other decisions of Hon'ble Apex Court. 6. From perusal of record, it is found that there has been some discrepancies in earlier order of trial court when it had refused to carry out two trials together regarding same incident on the ground that cognizance of one case is for Maistrate triable offence and of another case is for exclusively Sessions Trail offence. The different sub-secitons of Section 210 CrPC provides as to when two proceedings on the basis of two orders of cognizance or one cognizance and another investigation or inquiry may be carried out. This pertinent point was not properly appreciated by trial court. 7. The power of revision under section 397 Cr.P.C. is exercised only for considering correctness, legality and propriety of any finding or regularity of the proceedings. But in present matter lower revisional court had not only made certain observations that may affect the finding of trial court when the matter would be considered after the remand, and if those directions are complied with then, it may affect the independent decision of trial court. In present matter revisional court had rightly found some discrepancies in order of trial court and remanded the matter for passing fresh orders, and this part of direction of revisional court is acceptable. But remaining that part of order of revisional court is erroneous and unacceptable that relate to direction that trial court will pass fresh orders in light of observations given in judgment of revision. This later part of direction of revisional court is liable to be quashed. 8. But remaining that part of order of revisional court is erroneous and unacceptable that relate to direction that trial court will pass fresh orders in light of observations given in judgment of revision. This later part of direction of revisional court is liable to be quashed. 8. In view of above, this applicatin is disposed of with direction that trial court will re-appreciate factual and legal aspect of the matter at the time of passing fresh order on point of cognizance/ summoning, but it will not consider any other observation or direction made by revisional court in its judgment dated 7.5.2016. 9. Let a copy of this order be communicated to the trial court. Application disposed of accordingly.