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2019 DIGILAW 315 (JHR)

Aman Kumar v. State of Jharkhand

2019-01-31

SHREE CHANDRASHEKHAR

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JUDGMENT : The petitioners seek quashing of the entire criminal proceeding arising out Gonda P.S Case No. 45 of 2018 corresponding to G.R Case No. 2362 of 2018 which has been registered for the offences under section 498A/34 IPC. 2. Main plea urged on behalf of the petitioners is that the court at Ranchi has no territorial jurisdiction to take cognizance of the offence. 3. The learned counsel for the petitioners in support of this contention has relied on decision in “Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another” reported in (2004) 8 SCC 100 . 4. Mr. Sudhir Kumar Roy, the learned A.P.P submits that by an order dated 02.01.2019 cognizance of the offence under section 498A/34 IPC and section 3/4 of the Dowry prohibition Act has been taken by the Magistrate and processes have been issued against the accused persons; the petitioners have been granted benefits under section 438 of the Code of Criminal Procedure. 5. Under section 190 of the Code of Criminal Procedure, a Magistrate of the first class or any Magistrate of the second class, specially empowered under sub-section (2), may take cognizance of any offence; (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, or (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Under section 190 Cr.P.C, cognizance of the offence is taken by the Magistrate and not of the offender. An order taking cognizance or any order through which a proceeding in the criminal court is initiated is a serious matter and such powers cannot be exercised by the Magistrate lightly. A Magistrate is not a post-office and he does not act like a machine (refer, “Mehmood UL Rehman Vs. Khazir Mohammad Tunda and Others” reported in AIR 2015 SC 2195 ). The Magistrate takes cognizance of the offence if materials constituting prima-facie offence have been brought on record. A Magistrate is not a post-office and he does not act like a machine (refer, “Mehmood UL Rehman Vs. Khazir Mohammad Tunda and Others” reported in AIR 2015 SC 2195 ). The Magistrate takes cognizance of the offence if materials constituting prima-facie offence have been brought on record. No doubt, the Magistrate at the stage of section 190 Cr.P.C has to exercise his powers judicially and the legislative intendment is reflected in the expression “may take cognizance”, at this stage it is not the providence of the Magistrate to sift evidence, probe into the contradictions in the statement of the offences recorded under section 161 Cr.P.C and come to a conclusion that sufficient materials for conviction have not been collected during the course of investigation. The stage of cognizance is the initial stage of a trial when the Magistrate has to make-up his mind on the basis of materials brought on record, whether the accused persons should face trial or not. 6. Without recording facts of the case in detail because it may prejudice the petitioners, suffice would be to record that if the written report dated 22.04.2018 is read as a whole it cannot be said that no offence is made out. Whether sufficient materials for the offence as alleged, and whether materials against all the accused persons have been collected during the investigation can be examined at the stage of framing of the charge. The question of territorial jurisdiction of the court can also be raised at that stage. At this stage, when the materials collected during the investigation are not on record it is not possible to examine the question of territorial jurisdiction of the court. 7. Accordingly, this quash-petition is dismissed, however, with liberty to the petitioners to raise all such plea which are available to them in law by filing a discharge petition or at other appropriate stages. 8. Cr.M.P No. 2422 of 2018 stands dismissed.