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2020 DIGILAW 896 (KER)

Jeevan Joy, S/o. Joy v. State Of Kerala

2020-10-27

N.ANIL KUMAR

body2020
ORDER : The important question arising for consideration in this criminal revision petition is as to whether under Section 209 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.'), the committal Magistrate was required to take cognizance of the offence triable by a court of session before committing the case to the court of session in accordance with law. 2. The facts leading to the case are hereunder:- The additional 2nd respondent, the alleged victim in this case was arrested by the Central Police, Ernakulam for having involved in immoral trafficking on 22.9.2009. Later, she was produced before the Chief Judicial Magistrate Court, Ernakulam on 23.9.2009 and she was sent to Children's Home at Kakkanad. On being questioned, she had disclosed that her classmates committed rape on her at Mattannur in Kannur District. In the meantime, as per the directions of the Chief Judicial Magistrate, Ernakulam a suo motu crime was registered against the named three accused and 17 identified persons as Crime No.2220/2009 dated 10.10.2009 by the Central Police, Ernakulam under Sections 120B, 366A, 376 of the Indian Penal Code (hereinafter referred to as 'the IPC'). Later, finding that the alleged offence in this case took place within the jurisdiction of Cheranelloor Police Station, the crime was transferred to the said Police Station. Accordingly, the present crime was registered as Crime No.870/2009 of Cheranelloor Police Station on 11.10.2009 and the investigation of the case was entrusted with the Circle Inspector of Police, Ernakulam Town North Police Station. The allegation in Crime No.870/2009 is that accused 1 to 4 had entered into a criminal conspiracy after collecting money from the other 17 accused and had induced and compelled the victim to have intercourse with them against her will at different places on different dates. The revision petitioner, apprehending arrest in connection with the above crime, approached this Court in Bail Appln.No.7232/2009 and this Court granted anticipatory bail to the petitioner on 22.12.2009. The Investigating Officer conducted investigation and filed final report against the six accused including the revision petitioner as 4th accused. 3. On receipt of the final report, the learned Magistrate registered the case as C.P.No.7/2011 and passed an order on 25.1.2011 on the following terms:- “Taken on file as C.P.No.7/2011 for the offences under Sections 120B, 366A, 323, 506(1), 376, 372, 373, 342 and 212 of the IPC. Issue summons to the accused.” 4. 3. On receipt of the final report, the learned Magistrate registered the case as C.P.No.7/2011 and passed an order on 25.1.2011 on the following terms:- “Taken on file as C.P.No.7/2011 for the offences under Sections 120B, 366A, 323, 506(1), 376, 372, 373, 342 and 212 of the IPC. Issue summons to the accused.” 4. Challenging the above order of the learned Magistrate, the revision petitioner is before this Court. 5. Heard Sri.B.Raman Pillai, the learned Senior Counsel for the revision petitioner, Sri.M.S.Breez, the learned Senior Public Prosecutor for the 1st respondent-State and Smt.K.Anila, the learned counsel for the additional 2nd respondent. 6. Sri.B.Raman Pillai, the learned Senior Counsel for the revision petitioner contended that there is no material on record to show that the revision petitioner was involved in the case and the revision petitioner has no acquaintance with any of the accused in the case or with the alleged victim/additional 2nd respondent. The learned Senior Counsel further submitted that none of the documents in the final report shows that the revision petitioner is involved in the case. However, the police fixed the name of the revision petitioner as the 4th accused without any evidence on record. It is further contended that the learned Magistrate mechanically took cognizance of the offences aforesaid and issued process to the revision petitioner as 4th accused. Therefore, the order issuing process to the revision petitioner is sought to be set aside. 7. Per contra, Sri.M.S.Breez, the learned Senior Public Prosecutor submitted that under Section 209 of the Cr.P.C., the learned Magistrate was not required to take cognizance of the offence before committing the case to the court of session. It is further contended that the revision is not maintainable before this Court. 8. In Dharam Pal & Others v. State of Haryana & another [ (2014) 3 SCC 306 ] a constitution bench of the Apex Court in paragraph 39 of the judgment held thus:- ”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. 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 Session Judge.” 9. Reiterating the principles in Dharam Pal's case (supra), in Hardeep Singh v. State of Punjab and others [ (2014) 3 SCC 92 ] another constitution bench of the Apex Court held in paragraph 47 of the judgment thus:- “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) Cr.P.C. 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 Cr.P.C., 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. 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 Cr.P.C., 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 Cr.P.C. is forbidden, by express provision of Section 319 Cr.P.C., 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.” 10. It is a well-settled principle of criminal law that cognizance is taken of an offence and not the offender. In Dharam Pal's case it is settled that the committal Magistrate is not required to take cognizance of the offence triable by a Court of Session before committing the case to the Court of Session. Consequently, the committal Magistrate plays a passive role in committing the case to the Court of Session on finding from the police report that the case is exclusively triable by the Court of Session. The judgment of the constitution bench in Hardeep's case (supra) lends support to the correctness of the Constitution Bench in Dharam Pal's case (supra). In the present matter, there is no specific order of the court writing the words “Cognizance Taken”. The court registered the case as C.P.7/2011 on 25.1.2011, when the final report was placed for consideration and the court ordered summons to the accused to perform acts in the nature of administrative work rather than judicial. Hence the challenge raised on this ground must fail. 11. At this juncture, the learned Senior Counsel contended that the additional 2nd respondent filed Annexure-R2(a) affidavit dated 18.3.2015 before this Court stating that she had no prior acquaintance with the revision petitioner in this case and she had not identified him to the police as a person who committed rape on her. Smt.K.Anila, the learned counsel for the additional 2nd respondent submitted that the additional 2nd respondent filed Annexure-R2(a) affidavit before this Court. Smt.K.Anila, the learned counsel for the additional 2nd respondent submitted that the additional 2nd respondent filed Annexure-R2(a) affidavit before this Court. Hence it is contended that merely because an offence is not compoundable under Section 320 of the Cr.P.C. by itself is no reason for the High Court to refuse exercise of its powers under Section 482 of the Cr.P.C. That power can, according to the learned Senior Counsel, be exercised, if there is no chance of recording a conviction against the accused and the entire exercise of trial is destined to be an exercise in futility. Relying on the decision in Pepsi Foods Ltd. & another v. Special Judicial Magistrate & others [ (1998) 5 SCC 749 ], the learned Senior Counsel contended that nomenclature under which the petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. 12. This is a case involving clear cut allegation of rape as defined under Section 376 of the IPC. The offence is non-compoundable in nature as per Section 320 of Cr.P.C. It is well-settled that the High Court in the exercise of its powers of revision under Section 401 of the Cr.P.C. may allow any person to compound any offence which such person is competent to compound under Section 320 of the Cr.P.C. It is also well-settled that the High Court can in exercise of its inherent powers quash the criminal proceedings under Section 482 of the Cr.P.C. even in non-compoundable offence based on the compromise or settlement between the parties. In Gian Singh v. State of Punjab [ 2012 (4) KLT 108 (SC)] a three-judge bench of the Apex Court prescribed parameters for quashing the criminal proceedings under Section 482 of the Cr.P.C. In Gian Singh's case it is held that a case involving clear cut allegation of rape should fall in the prohibited category and cannot be fittingly quashed even though the victim and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on the society. Hence, offences like murder, rape, dacoity, etc. cannot be quashed by this Court even though the victim and the accused have come to a compromise to settle the dispute out of court. Such offences are not private in nature and have a serious impact on the society. Hence, offences like murder, rape, dacoity, etc. cannot be quashed by this Court even though the victim and the accused have come to a compromise to settle the dispute out of court. In view of the above, the criminal revision petition is dismissed, without prejudice to seek appropriate remedies, if so advised, in accordance with law. Pending applications, if any, stand disposed of.