Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 628 (ALL)

Basudev v. State of U. P.

2019-03-07

SHASHI KANT

body2019
JUDGMENT : SHASHI KANT, J. 1. Heard Sri Kunwar Mukul Rakesh, learned counsel for the applicant, Sri Santosh Kumar Mishra, learned A.G.A. for the State of U.P., Sri Zulfiqar Naqvi holding brief of Sri Gyasuddin Khan, learned counsel for the opposite party no. 2 and perused the record. 2. This application under Section 482 Cr.P.C. has been filed for quashing the order dated 06.02.2019 passed by Additional Sessions Judge, F.T.C.-1, Lucknow, in S.T. No. 970 of 2018 (State vs. Basudev and another), arising out of Case Crime No. 48 of 2001, under Sections 323, 504, 506, 376 IPC, P.S. Nagram, District Lucknow. 3. Brief facts related to this case are that opposite party no. 2 has lodged an FIR as Case Crime No. 48 of 2001, under Section 376 IPC, P.S. Nagram, District Lucknow (Anneuxre-4) in which after investigation, on 04.07.2007, the charge sheet (Annexure-2) has been filed against the applicant under Sections 323, 504 and 506 IPC and on the basis of which the trial of the applicant began before the Court concerned, as Criminal Case No. 717 of 2001, in which statements of the prosecutrix P.W. 1 was recorded. During trial an application under Section 216 Cr.P.C. has been moved on 21.07.2013 by the prosecutrix for modification of the charge under Section 376 IPC. The above application of the prosecturix has been allowed vide order dated 22.08.2017 (Annexure C.A.-3) against thereof, a Criminal Revision No. 697 of 2017 was filed, which was dismissed by the Revisional Court vide order dated 25.08.2018 (Annexure C.A.-4). The order of Revisional Court was challenged before this Court by means of an application under Section 482 Cr.P.C. No. 6021 of 2018, which was disposed of vide order dated 27.09.2018 (Annexure-1). 4. The Magistrate Court has passed committal order under Section 209 Cr.P.C. on 01.10.2018 (Annexure-3) 5. Vide order dated 09.10.2018 (Annexure-2) the above order dated 27.09.2018 was modified. The relevant part of which is as follows : “Looking to the facts and circumstances of the case, the order dated 22.074.2017 is modified and the petitioner is permitted to apply for bail before the Sessions Court where the case has been committed within two weeks from the date of the file is received by Sessions Court. Till then, no coercive steps shall be taken against the petitioner in the case. Petition is disposed of.” 6. Till then, no coercive steps shall be taken against the petitioner in the case. Petition is disposed of.” 6. Subsequent to that, the applicant moved an application before the Court of Sessions on 20.10.2018, but in view of the mention of the fact in the committal order to the effect that the applicant is on bail and shall remain on bail during trial, the applicant has not pressed his bail application on 01.12.2018. Thereafter the applicant personally appeared before the Court of Session up to 10.12.2018. On 22.12.2018 he moved an exemption /discharge application. On that date the Presiding Officer was on leave and in the order passed on that date, it was noticed that the applicant has not complied the orders passed by this Court. As per the learned counsel for the applicant, the order sheet (Annexure-4) is not signed by any one. On 02.01.2019, the Court below again observed that compliance of the orders of this Court, the applicant has not obtained bail. The exemption application of the applicant was rejected and non bailable warrant has been issued against the applicant. The order dated 02.01.2019 was challenged by the applicant by means of an application under Section 482 Cr.P.C. No. 652 of 2019, which was decided vide order dated 25.01.2019 (Annexure-6). The relevant part of which reads thus : “Submission of learned counsel for the petitioner is that after the aforesaid order passed, an order under Section 209 Cr.P.C. is passed on 01.10.2018, in which the Court stated that accused are already on bail and the trial shall continue on the same bail. There is no requirement to file a fresh bail application under Section 376 IPC. However, the Court is insisting for bail in view of order dated 09.10.2018 passed by this Court in Crl. Misc. Case No. 6021 of 2018. Therefore, the order dated 09.10.2018 is modified to the extent that if the accused do not need bail under Section 376 I.P.C. separately, the Court below shall not insist for the same. With the aforesaid modification, present petition is disposed of.” 7. Misc. Case No. 6021 of 2018. Therefore, the order dated 09.10.2018 is modified to the extent that if the accused do not need bail under Section 376 I.P.C. separately, the Court below shall not insist for the same. With the aforesaid modification, present petition is disposed of.” 7. The above order of this Court is filed before the Court below by the applicant on 30.01.2018, on which the Additional District & Sessions Judge/F.T.C.-1st Lucknow has passed the order dated 06.02.2019, (which is available on record at page 44 to 50 of the paper book), whereby the application of the applicant for cancellation of non bailable warrant issued against him has been rejected, against thereof the present application under Section 482 Cr.P.C. has been filed. 8. Learned counsel for the applicant contended that the applicant is on bail by the order of the Trial Court under Sections 323, 504 and 506 IPC but during trial it appears to the Magistrate that in view of the evidence regarding section 376 IPC, the case is triable by the Court of Session. In view of the above, he has committed the case to the Court of Sessions under Section 209 read with section 223 Cr.P.C. vide its order dated 01.10.2018 under Section 323 IPC. After receipt of committal order, no order of cognizance under Section 193 Cr.P;.C. has been passed by the Sessions Court. It is mentioned in the committal order that the applicant is on bail and shall remain on bail during trial. The procedure laid down in Chapter XVIII of Cr.P.C. have to be followed thereafter, the impugned order is not only violative of above legal provisions but also against the order dated 25.01.2019 passed by this Court. In this view of the matter, he is not required to obtain bail under Section 376 IPC. He has not pressed his bail application on 01.12.2018. In the facts and circumstances of the case, the impugned order dated 06.02.2019 passed by the Additional Sessions Judge, F.T.C.-1, Lucknow, rejecting the application for cancellation of non bailable warrant, issued against the applicant, is wrong, illegal and contrary to the above referred legal provisions of section 209 read with Section 223 Cr.P.C. and section 193 Cr.P.C. 9. Per contra, learned A.G.A. as well learned counsel for the opposite party no. Per contra, learned A.G.A. as well learned counsel for the opposite party no. 2 have vehemently opposed the above contentions raised by the learned counsel for the applicant by contending that admittedly the applicant is on bail only under Sections 323, 504 and 506 IPC not under Section 376 IPC. 10. Learned A.G.A. submitted that case of the applicant was committed by the Magistrate Court under Section 376 IPC on 01.10.2018, thereafter in pursuance of the order of this Court dated 09.10.2018, the applicant moved his bail application before the Court of Sessions on 20.10.2018 and thereafter not pressed that application on 01.12.2018. Against the order dated 22.08.2017 by which cognizance under Section 376 IPC was taken against the applicant, he has filed a Criminal Revision No. 697 of 2017, which has been dismissed by the Revisional Court vide order dated 25.08.2018. The order of Revisional Court was challenged before this Court by means of an application under Section 482 Cr.P.C. No. 6021 of 2018, which was disposed of vide order dated 27.09.2018 with the direction to move a bail application before the Court of Sessions. In these circumstance, the impugned order passed by the Court below dated 06.02.2019 is perfectly justified and no interference in it is required at all by this Court. 11. Learned A.G.A. as well as learned counsel for the opposite party no. 2 have also contended that since the cognizance of case under Section 376 IPC is taken by the Magistrate on 01.10.2018 and thereafter the case was committed by him under Section 376 IPC. In view of the above, no further order of cognizance under Section 193 Cr.P.C. is required to be passed by the Court of Sessions. 12. In support of their above contention, they have placed reliance (2016) 6 Supreme Court Cases 680, Balveer Singh and another vs. State of Rajasthan and another. The relevant paragraphs 10, 11 13 and 15 of the aforesaid case law runs thus : “10. Sections 190 and 193 of the Code are in Chapter XIV. This Chapter contains the title “Conditions requisite for initiation of proceedings”. Section 190 deals with cognizance of offence by Magistrates. It empowers any Magistrate of the First Class, and any Magistrate of the Second Class which are specially empowered to take cognizance “of any offence” under three circumstances mentioned therein. This Chapter contains the title “Conditions requisite for initiation of proceedings”. Section 190 deals with cognizance of offence by Magistrates. It empowers any Magistrate of the First Class, and any Magistrate of the Second Class which are specially empowered to take cognizance “of any offence” under three circumstances mentioned therein. These three circumstances include taking of cognizance upon a Police report of such facts which may constitute an offence. It is trite law that even when Police report is filed stating that no offence is made out, the Magistrate can ignore the conclusion arrived at by the Investigating Officer and is competent to apply its independent mind to the facts emerging from the investigation and take cognizance of the case if it thinks that the facts emerging from the investigation do lead to prima facie view that commission of an offence is made out. In such a situation, the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of the case under Section 190(1) (a) though it is open for him to act under Section 200 or Section 202 as well {See Minu Kumari & Anr. v. State of Bihar & Ors. [3]}. Thus, when a complaint is received by the Magistrate under Section 190(1)(a) of the Act, the Magistrate is empowered to resort to procedure laid down in Section 200 or 202 of the Code and then take cognizance. If Police report is filed, he would take cognizance upon such a report, as provided under Section 190(1)(b) of the Code in the manner mentioned above as highlighted in the case of Minu Kumari. 11. Likewise, Section 193 of the Code empowers Court of Session to take cognizance of offences and states that the Court of Session shall not take cognizance of any offence as the Court of original jurisdiction unless the case has been committed to it by the Magistrate under this Code. As per this Section, the Court of Session can take cognizance only after the case has been committed to it by the Magistrate. However, once the case is committed to it by the Magistrate, the Court of Session is empowered to take cognizance acting 'as a Court of original jurisdiction'. 13. As per this Section, the Court of Session can take cognizance only after the case has been committed to it by the Magistrate. However, once the case is committed to it by the Magistrate, the Court of Session is empowered to take cognizance acting 'as a Court of original jurisdiction'. 13. 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. If it is so, the question is as to what meaning is to be assigned to the words “as a Court of original jurisdiction” occurring in Section 193 of the Code when Court of Session takes cognizance of any offence. To put it otherwise, when the Magistrate has taken cognizance and thereafter only committed the case to the Court of Session, whether the Court of Session is not empowered to take cognizance of an offence again under Section 193 of the Code or it still has power to take cognizance acting as Court of original jurisdiction. In order to find the answer, we now advert to the appraisal of Dharampal's case. 15.1. The Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report. 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) of the Code. 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. 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. Thereafter, if on being prima facie satisfied that a case had been made out to proceed against the persons named in Column 2 of the report, he may proceed to try the said persons or if he is satisfied that a case had been made out which was triable by the Court of Session, he must commit the case to the Court of Session to proceed further in the matter. Further, if the Magistrate decides to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same is found to be triable by the Sessions Court. 15.2. The Sessions Judge is entitled to issue summons under Section 193 of the Code upon the case being committed to him by the Magistrate. Section 193 speaks of cognizance of offences by the Court of Session. 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 provision of Section 193 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. The submission that the cognizance indicated in Section 193 deals not with cognizance of an offence but of the commitment order passed by the Magistrate, was specifically rejected in view of the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section. 15.3. 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. 15.3. 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 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.” 13. I have considered the above referred rival arguments raised on behalf of the parties and perused the record. 14. Admittedly, in pursuance of the orders dated 27.09.2018 modified vide order dated 09.10.2018, the applicant has moved bail application before the Court of Session, thereafter he obtain order dated 25.01.2019 from this Court. The relevant part of above order has been reproduced earlier part of this order and by above order, the order dated 09.10.2018 is modified to the extent that if the accused need not to bail under Section 376 Cr.P.C. separately, the Court below shall not insist for the same. It is also not in dispute that applicant is not obtained bail under Section 376 IPC and not pressed his bail application under the above sections. As far as question of cognizance under Section 376 IPC by the Session Court under Section 193 Cr.P.C. is concerned, though there is no need for passing of any such cognizance order in view of the decision of Balveer Singh (Supra). Apart from above, the Court of Sessions is constantly proceeding in the matter and the applicant is also regularly attending the Court proceedings. 15. Apart from above, the Court of Sessions is constantly proceeding in the matter and the applicant is also regularly attending the Court proceedings. 15. Hon’ble Apex Court has dealt the issue in the case of Kishun Singh and others vs. State of Bihar, (1993) 2 Supreme Court Cases 16, which reads thus : “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 pacic be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in section 193 of the Code from that under the old Code in the case of S.K Lutfur Rahman (supra) as under : "Therefore, what the law under section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well. *** *** Once the case has been committed, the bar of section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon and individual accused of the crime." We are in respectful agreement with the distinction brought out between the old section 193 and the provision as it now stands. For the reasons stated above while as are in agreement with the submission of the learned counsel for the appellants that the stage for tile exercise of power under section 319 of the Code had not reached, inasmuch as, the trial had not commenced and evidence was not led, since the Court of Session had the power under section 193 of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case, we see no reason to interfere with the impugned order as it is well-settled that once under it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. We, therefore, dismiss this appeal.” 16. Thereafter in the Case of Bhushan Kumar and another vs. State (NCT of Delhi) and another, (2012) 5 Supreme Court Cases 424, the Hon’ble Court has said as under : “7. In S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492 , the expression cognizance was explained by this Court as it merely means become aware of and when used with reference to a court or a Judge, it connotes to take notice of judicially. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. 8. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.” 17. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.” 17. Considering the above referred legal position alongwith facts and circumstances of the case in its entirety, I am of the view that the applicant is required to obtain bail under Section 376 IPC. 18. For the reasons recorded above, I find no illegality or infirmity in the impugned order dated 06.02.2019 passed by the Additional Session Judge, F.T.C.-1, Lucknow. 19. In view of the above, relief for quashing the order dated 06.02.2019 passed by Additional Sessions Judge, F.T.C.-1, Lucknow, in S.T. No. 970 of 2018 (State vs. Basudev and another), arising out of Case Crime No. 48 of 2001, under Sections 323, 504, 506, 376 IPC, P.S. Nagram, District Lucknow is declined. 20. However, in the peculiar facts and circumstance of the case, it is provided that if the applicant moves any fresh bail application before the Court concerned for bail under Section 376 IPC within three weeks from today, same will be heard and decided expeditiously in accordance with law without any undue delay. 21. Till the aforesaid period of three weeks, no coercive action shall be taken against the applicant. 22. With the aforesaid directions/observations, this application is finally disposed of.