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Madhya Pradesh High Court · body

2017 DIGILAW 949 (MP)

Pintu@Virendra Singh v. State of M. P.

2017-08-31

G.S.AHLUWALIA

body2017
ORDER 1. This application under section 482 of CrPC has been filed against the order dated 4.4.2017 passed by JMFC Ambah, District Morena, thereby taking cognizance for offence under section 306 of IPC against the applicant. 2. The necessary facts for the disposal of the present application in short are that the police filed a charge sheet against 4 persons, namely Smt. Saroj, Smt. Sheela Devi, Kamal Kishore and Gautam Singh for offence under section 306 and 34 of IPC. 3. The allegations in short are that the deceased was the husband of co-accused Smt. Saroj and Smt. Sheela was the mother-in-law of the deceased whereas the co-accused Kamal Kishore is the brother-in-law of the deceased and Gautam was the husband of sister-in-law of the deceased. 4. It is alleged that because of harassment at the hands of the accused persons, the deceased Brajesh committed suicide. The police didnot file the charge sheet against the applicant on the ground that he was not present on the spot. 5. That on 4.4.2017, the Police filed the charge sheet against 4 persons for offence under section 306 read with section 34 of IPC which is triable by Sessions Court. The Magistrate after going through the record came to the conclusion that since, the name of the applicant is also mentioned in the FIR, therefore, also took cognizance against the applicant. 6. Challenging the order passed by the Magistrate, it is submitted by the counsel for the applicant, that since, offence under section 306 of IPC is triable by Court of Sessions, therefore, where the police has chosen not to file a charge sheet against an accused, then the Magistrate has no jurisdiction to take cognizance against the such accused and the only option available is to proceed against such person appearing to be guilty of offence under section 319 of CrPC. 7. Per contra, it is submitted by the Counsel for the State that the Magistrate can take cognizance of an offence under section 190 of CrPC and, therefore, the order passed by the Magistrate is in accordance with law. 8. Heard the learned Counsel for the parties. 9. The Supreme Court in the case of Hardeep Singh v. State of Punjab, reported in [ (2014)3 SCC 92 ], has held as under :- ''23. 8. Heard the learned Counsel for the parties. 9. The Supreme Court in the case of Hardeep Singh v. State of Punjab, reported in [ (2014)3 SCC 92 ], has held as under :- ''23. In Yeluchuri Venkatachennaya, In re (1920)11 LW 435 , the Court held that an inquiry is a stage before the committal to a higher Court. In fact, from a careful reading of the judgments under reference i.e. Ranjit Singh v. State of Punjab, [ (1998)7 SCC 149 ], and Kishun Singh v. State of Bihar, [ (1993)2 SCC 16 ], it emerges that there is no dispute even in these two cases that the stage of committal is neither an inquiry nor a trial, for in both the cases, the real dispute was whether section 193 CrPC can be invoked at the time of committal to summon an accused to face trial who is not already an accused. It can safely be said that both the cases are in harmony as to the said stage neither being a stage of inquiry nor a trial. ****** ***** **** 47. Since after the filing of the charge sheet, the Court reaches the stage of inquiry and as soon as the Court frames the charges, the trial commences, and, therefore, the power under section 319(1) CrPC can be exercised at any time after the charge sheet is filed and before the pronouncement of judgment, except during the stage of sections 207/208 CrPC, committal, etc. which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of sections 207 to 209 CrPC is forbidden, by express provision of section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session.'' The Supreme Court in the case of Dharam Pal v. State of Haryana, reported in [ (2014)3 SCC 306 ] has held as under : ''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. The key words in the section are that “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”. The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr. Dave to suggest that the cognizance indicated in section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of section 193 that the Court of Session may take cognizance of the offences under the said section. 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. 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. 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. 40. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh case v. State of Bihar, [ (1993)2 SCC 16 ], that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.'' 10. Thus, it is clear that the Sessions Court has jurisdiction to summon the applicant to stand trial along with those already named therein. 11. Accordingly, the order dated 4.4.2017 passed by the Magistrate qua the applicant is set aside. It is made clear that the Sessions Court, if so requires, may exercise power under section 193 of CrPC. 12. Thus, it is clear that the Sessions Court has jurisdiction to summon the applicant to stand trial along with those already named therein. 11. Accordingly, the order dated 4.4.2017 passed by the Magistrate qua the applicant is set aside. It is made clear that the Sessions Court, if so requires, may exercise power under section 193 of CrPC. 12. With aforesaid observation, the application filed under section 482 of CrPC succeeds and is hereby allowed.