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Madhya Pradesh High Court · body

2018 DIGILAW 677 (MP)

Radheshyam v. State of M. P.

2018-08-02

VIVEK AGARWAL

body2018
ORDER 1. This criminal revision has been filed by the petitioner being aggrieved by the order dated.11.5.2018 passed by the Fourth Additional Sessions Judge Morena in Criminal Case No. 84/2018 taking cognizance against the petitioner Radheshyam under section 193 of CrPC and has issued notices for appearance of the petitioner. 2. It is the complainant’s case that Crime No. 246 of 2017 was registered under the provisions of sections 147, 148, 149, 324, 323, 294, 506 of IPC and later on section 307 of IPC has been added, wherein the allegation was against the accused persons including the present petitioner that armed with lathi, farsa, sabbal and Fawda they had attacked Raju, who had received injuries of Farsa and when his daughter-in-law Neelam and son Kapil tried to save them, then Laxman, Sudama, Pradeep had beaten them and caused injuries with farsa, lathi and handle of an axe but despite there being a named FIR, police did not find involvement of the present petitioner, though his name is mentioned in the statement under section 161 of CrPC. 3. It is the contention of the complainant that police authorities gave benefit to the present petitioner as he is a Government employee and on the basis of such evidence his name has been excluded, therefore, cognizance be taken under the provisions of section 190 (1) (b) of CrPC and he be called for through arrest warrant. 4. It is petitioner’s contention that report was lodged against all the family members with a vengeance to falsely implicate the petitioner, who is not only a government servant but also a handicapped person. Learned counsel for the petitioner has drawn attention of this Court to the order passed by the learned CJM Morena on 21.2.2018, whereby an application under section 190 (1) B of CrPC was decided. It is submitted that during investigation police had removed the name of the present petitioner from the final report on the ground that he had not committed any offence and charge sheet was filed before the Court against other accused persons. 5. In the aforesaid order learned CJM noted a fact that statements of the witnesses are enclosed in regard to the investigation, which was carried out in relation to the accused Radheshyam Kushwah. It has also come on record that cognizance was taken against other accused persons. 5. In the aforesaid order learned CJM noted a fact that statements of the witnesses are enclosed in regard to the investigation, which was carried out in relation to the accused Radheshyam Kushwah. It has also come on record that cognizance was taken against other accused persons. It has also come on record that an application under section 190 of CrPC has been filed for taking cognizance against the accused Radheshyam Kushwah and to summon him through arrest warrant after case was fixed for arguments on committal. Learned CJM after taking into consideration the statements given by the witnesses refused to take cognizance. It is submitted that once the CJM had refused to take cognizance, then learned ADJ was not entitled to take cognizance directly under the provisions of section 193 of CrPC but it was open to the aggrieved party to have filed revision against the order refusing to take cognizance. 6. Learned counsel for the petitioner has placed reliance on the judgment of Hon’ble Supreme Court in the case of Balveer Singh and another v. State of Rajasthan and another, as reported in (2016)2 SCC(Cri) 622, so also on the judgment of Rajasthan High Court in the case of Bajrang Lal and another v. State of Rajasthan and another as, reported in 2018 CrLJ 643 . 7. Learned counsel for the respondent/complainant, respondent No. 2 on the other hand has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Hardeep Singh v. State of Punjab as, reported in (2014)3 SCC 92 . 8. The ratio of judgment of Hon’ble Supreme Court in the case of Hardeep Singh (supra), is that for offences exclusively triable by Sessions Court, Sessions Court alone is competent to take cognizance under section 193 and then during course of Court inquiry thereafter and the trial Court and the Magistrate is forbidden, by express provision of section 319, 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. 9. 9. This judgment of Hon’ble Supreme Court in the case of Hardeep Singh (supra), has been distinguished by the Hon’ble Supreme Court in the case of Balveer Singh (supra), whereby Hon’ble Supreme Court has held as under : “A bare reading of section 190 of the Code which uses the expression “any offence” amply shows that no restriction is imposed on the Magistrate that Magistrate can take cognizance only for the offence triable by Magistrate Court and not in respect of offence triable by a Court of Session. Thus, he has the power to take cognizance of an offence which is triable by the Court of Session. When the Magistrate has taken cognizance or has expressly rejected a prayer for taking cognizance (after hearing the accused) i.e. the Magistrate has not played a merely passive role under section 209 CrPC and thereafter, only committed the case to the Court of Session, the Court of Session is not empowered to take cognizance of an offence for a second time under section 193 CrPC Acting as Court of original jurisdiction, as cognizance of an offence can not be taken for a second time. Rather, the Sessions Court may take recourse to its revisional jurisdiction. Dharam Pal, (2014)3 SCC 306 , clarifies the law by laying down the principle that even if the case is triable by the Court of Session, the function of the Magistrate is not to act merely as a post office and commit the case to the Court of Session, but he is also empowered to take cognizance, issue process and summon the accused and thereafter commit the case to the Court of Session. 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, proceeding 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 Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The language of section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of section 209 of the Code will, therefore, have to be understood as the 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 Sessions Judge. Since the Court of Session is acting as the Court of original jurisdiction under section 193 of the Code, after the committal of proceedings to it by the Magistrate, it is empowered to take cognizance (only if the Magistrate has acted passively under section 209 CrPC) and issue summons and it cannot be treated as taking second cognizance of the same offence.” 10. Same ratio has been followed by Rajasthan High Court in the case of Bajrang Lal (supra), wherein it has been held that cognizance of offence by the Sessions Judge without hearing the accused is unsustainable. 11. In view of such law, this Court is of the opinion that the impugned order passed by the learned Fourth Additional Sessions Judge Morena is devoid of merits and deserves to be quashed and is quashed, as said Additional Sessions Judge was not entitled to take cognizance for second time once cognizance was taken by the CJM and the learned Additional Sessions Judge was not competent to take cognizance of the same offence on committal without recording the finding that the CJM before committal of the proceeding had acted passively under section 209 of CrPC Such Additional Sessions Judge has failed to take into consideration the law laid down by the Hon’ble Supreme Court in the case of Balveer Singh (supra), and has also failed to appreciate the ratio of law laid down in the case of Dharampal and others v. State of Haryana and another, as reported in (2014)3 SCC 306 in the correct perspective. 12. Accordingly, this petition is allowed and the impugned order passed by the learned Fourth Additional Sessions Judge is quashed.