The High Court dismissed a petition challenging consecutive orders of cognizance. The court distinguished precedents, finding the revisional court did not record findings establishing the offence, so the subsequent cognizance order did not prejudice the accused.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 807 of 2015
… … Opp. Parties
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--For the Petitioners : Mr. Rajesh Kumar, Advocate For the O.P. No. 2 : Ms. Vandana Sinha, Advocate For the Resp.-State : Mr. Arun Kumar Pandey, Advocate ---
07 /26.08.2019
1. Heard Mr. Rajesh Kumar, counsel appearing on behalf of the petitioners.
2. Heard Ms. Vandana Sinha, counsel appearing on behalf of Opposite Party No. 2.
3. Heard Mr. Arun Kumar Pandey, counsel appearing on behalf of Respondent-State.
4. This petition has been filed for the following relief: -
“for setting aside the order dated 23.01.2015 passed in Criminal Revision No. 13/2014 whereby the learned Sessions Judge, Lohardaga has set aside the Order dated 15.05.2014 passed by the Court of learned S.D.J.M, Lohardaga in C-31A/14 with an observations to pass a reasoned order for his order and in the result revision is allowed and further to quash the order dated
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03.03.2015 passed by the court of learned S.D.J.M, Lohardaga which was passed in pursuant to the observations made by the learned Sessions Judge in Criminal Revision No. 13/14 because the learned S.D.J.M. Lohardaga without applying judicial mind, has followed the directions and issued process against the petitioner directing him to face trial for the offence punishable under Section 498’A’ of the Indian Penal Code and section 3(X)(XV) of the S.C./S.T. (Prevention of Atrocities) Act, now case is present pending in the court of learned S.D.J.M, Lohardaga.
And/or
Pass any such order as Your Lordships may deem fit and proper in the facts and circumstances of the case and in the interests of Justice.”
5. Counsel for the petitioners submits that both the orders i.e. order passed by the learned revisional court dated 23.01.2015 in Criminal Revision No. 13/2014 and the consequential order dated 03.03.2015 passed by the learned Sub-Divisional Judicial Magistrate, Lohardaga, which are impugned in this case, are fit to be set aside.
6. Counsel for the petitioners submits that vide order dated 15.05.2014 passed by the learned S.D.J.M., Lohardaga, cognizance was taken under Section 323 of Indian Penal Code and summons were issued to the accused. Against this order, the complaint had filed being Cri. Revision No. 13 of 2014 and the learned revisional court passed order dated 23.01.2015 and recorded certain findings and made certain observations and remanded the matter to the learned court below with a direction to pass reasoned order and accordingly allowed the revision petition. Pursuant to the order of remand, a fresh order dated 03.03.2015 was passed by the learned S.D.J.M., Lohardaga, whereby the learned S.D.J.M., Lohardaga, by
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mechanically following the order passed by the learned revisional court in Cri. Revision No. 13 of 2014, took cognizance of offence under Section 498’A’ of IPC and Section 3(x)(xv) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act and summons were directed to be issued.
7. Counsel for the petitioners has raised two points for consideration;
firstly, he has submitted that it is well-settled law that cognizance of an offence can be taken only once and for that he has referred to the judgment passed by Hon’ble Supreme Court reported in (2014) 3 SCC 306 (Dharam Pal and Others vs. State of Haryana and Another) and has referred to Para 39 of the judgment. He submits that in the instant case, cognizance was already taken on 15.05.2014 and accordingly no fresh cognizance could have been taken by the learned court below. He further submits that during the stage of trial, if any evidence comes, it is certainly open to the concerned court to alter the charge at any subsequent stage. Accordingly, he submits, that the subsequent order of cognizance dated 03.03.2015, is in conflict with the judgment pronounced by the Hon’ble Supreme Court in the case of (Dharam Pal and Others vs. State of Haryana and Another) (supra).
The second point which has been raised by the learned counsel for the petitioners is that the findings which have been recorded by the learned revisional court could not have been given in view of ratio of the judgment passed by a Co-ordinate Bench of this Court reported in 2012 SCC OnLine Jhar 2185 (Nasim Ansari vs. State of Jharkhand) . The learned counsel has referred to various paragraphs of this judgment and has submitted the fact giving rise to the case has been mentioned in Para-1 of the said judgment. In the said case, the learned revisional court had recorded a finding that the records of the case clearly suggested an offence punishable under Sections 376
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and 511 of the Indian Penal Code and consequently the order of the learned Magistrate was set aside and a direction was issued by the learned revisional court to reconsider the matter and pass an appropriate order in the light of the observation made by the learned revisional court. In the same judgment, the subsequent order passed by the learned Magistrate has also been quoted which indicates that the learned Magistrate, without applying his independent mind, mechanically followed the order passed by the learned revisional court and took cognizance of offence under Sections 376 and 511 of IPC, which was under challenge in the said case reported in 2012 SCC Online Jhar 2185 . During the course of hearing, the learned counsel for the petitioners has specifically referred to Para-8 of the said judgment, wherein it was found that the observations made by the learned Sessions Judge in criminal revision that offence under Sections 376 and 511 of IPC is made out, would certainly cause prejudice to the accused during trial and at the relevant point of time, it was reflecting in the consequential order passed by the learned Magistrate. Considering the aforesaid aspect of the matter, this Court in the judgment reported in 2012 SCC OnLine Jhar 2185 (supra) was pleased to set aside the order passed by the learned revisional court as well as the consequential order passed by the learned Magistrate. He submits that the present case is fully covered by the aforesaid judgment passed by a Co-ordinate Bench of this Court in the case reported in 2012 SCC OnLine Jhar 2185. 8. Counsel appearing on behalf of Respondent-State, on the other hand, while opposing the prayer of the petitioners has submitted that there is no illegality in the impugned orders i.e. order passed by the learned revisional court as well as the subsequent order passed by the learned S.D.J.M., Lohardaga, in as much as, the learned revisional court has not returned any
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finding as to whether any case has been made out under any of the sections or not, but has remanded the matter on the ground that the order taking cognizance did not reflect complete application of judicial mind to the materials on record and accordingly the order taking cognizance was set aside and the matter was remanded to the learned S.D.J.M., Lohardaga. He further submits that the contention of the petitioners that there are two orders taking cognizance, is also not correct, in as much as, the learned revisional court has set-aside the earlier order taking cognizance and remanded the matter for fresh consideration and after fresh consideration, fresh order of cognizance was passed, which is the only order of cognizance on record.
9. After hearing the counsel for the parties and after considering the materials on record, this Court finds that the petitioners have annexed a copy of the complaint petition and solemn affirmation of the complainant and so far as the deposition of other enquiry witnesses are concerned, those are not on record. However, since the learned counsel for the petitioners has argued the case on the point of law, the points argued by the counsel appearing on behalf of the petitioners, are being considered.
10. This Court finds that as per the complaint petition, the case was filed for alleged offence under Sections 498-A and 295A of Indian Penal Code and Section 3(x)(xv) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act. Initially vide order dated 15.05.2014, the learned S.D.J.M., Lohardaga after considering the materials had taken cognizance of offence only under Section 323 of IPC and the operative portion of the said order taking cognizance is as follows: -
“I find and hold that some portion of the story of the complainant as stated in her complaint petition is prima faciely believable one and at this stage there is sufficient
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material to proceed further with this case against the accused persons named in the complaint petition for allegedly commission of offence under Section 323 of the Indian Penal Code. Let summon be issued against the accused on furnishing requisite by the complainant.”
11. Upon perusal of the said order dated 15.05.2014, this Court finds that the learned S.D.J.M., Lohardaga held that some portion of the story of the complainant, as stated in the complaint petition, is prima facie believable and observed that at that stage, there was sufficient material to proceed for alleged commission of offence under Section 323 of IPC.
12. The order taking cognizance was challenged by the complainant in Criminal Revision No. 13 of 2014, which was disposed of vide order dated 23.01.2015. The operative portion of the said order reads as follows: -
“that the court below has considered that some part of the incident is supported by the witnesses as also the complainant but the order will not show which part of the allegation of complaint is supported by the complainant or the witnesses nor the learned court has assigned specific reason for not taking cognizance for other sections thus the impugned order is set-aside.”
13. This Court finds that in the order dated 23.01.2015, the learned revisional court has passed a reasoned order, but has not recorded any finding as to whether any offence under any particular section has been made out or not. The learned revisional court found that the order passed by the learned S.D.J.M., Lohardaga showed that some part of the incident is supported by the witnesses as also the complainant, but the neither the order reflects which part of the allegation of complaint is supported by the complainant or the witnesses nor the learned court below assigned specific reason for not taking cognizance in other sections. Considering this aspect of the
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matter, the order dated 15.05.2014 was set aside and the matter was remanded for fresh consideration. This Court further finds that the earlier order taking cognizance was set aside by the learned revisional court and accordingly it cannot be said that the subsequent order of cognizance pursuant to order of remand is co-existing with the earlier order taking cognizance.
14. Accordingly, this Court finds that so far as the subsequent order of cognizance is concerned, that is the only order taking cognizance on record, as the learned revisional court had set aside the earlier order taking cognizance. The judgment which has relied upon by the learned counsel for the petitioners reported in (2014) 3 SCC 306 (Dharam Pal and Others vs. State of Haryana and Another) Para-39, does not apply to the facts and circumstances of this case. In Para-39 of the said judgment, it was held that if the cognizance of offence is to be taken, it could be taken either by the Magistrate or by the court of sessions and there cannot be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge.
15. So far as the other judgment which has been relied upon by the learned counsel for the petitioners reported in 2012 SCC OnLine Jhar 2185 (Nasim Ansari vs. State of Jharkhand) is concerned, this Court finds that the facts of the said case indicates that the learned revisional court had recorded specific finding that the offence under Sections 376 and 511 of Indian Penal Code was made out and the matter was remanded to the learned lower court for passing appropriate order in the light of the observations made by the revisional court and subsequently the learned lower court simply followed the direction of the revisional court and passed the order taking cognizance without applying its independent mind, as there was no scope in view of the fact that the learned revisional court has already
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observed that a case under Sections 376 and 511 of IPC was already made out. In this background, this Hon’ble Court had quashed the order of the learned revisional court as well as the consequential order taking cognizance.
However, in the instant case, this Court finds that the learned revisional court has not recorded any finding that the alleged offence under the various sections has been made out or not, on the basis of the materials on record, rather the learned revisional court indicated that the earlier order taking cognizance did not reflect complete application of judicial mind and the matter was remanded for fresh consideration. The learned revisional court however recorded certain materials which had come up during enquiry. Accordingly, this Court finds that the order of the learned revisional court neither records any finding nor the same can be said to cause any prejudice to the petitioners.
16. This Court further finds that the subsequent order taking cognizance dated 03.03.2015 by the learned S.D.J.M., Lohardaga clearly reflects his independent application of mind. Since there was no as such recording by the learned revisional court as to whether any case, under any particular section, is made out or not, it cannot be said that the learned court below was prejudiced by any such finding.
17. Considering the aforesaid facts and circumstances of this case, this Court finds that the judgment passed by this Court in the case of 2012 SCC OnLine Jhar 2185 (Nasim Ansari vs. State of Jharkhand) (supra) also does not apply to the facts and circumstances of this case.
18. Accordingly, the present petition is hereby dismissed.
19. Interim order, if any, stands vacated.
20. Pending interlocutory applications, if any, are also dismissed as not pressed.
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21. At this stage, at the request of the counsel for the petitioners and without there being any objection on behalf of the opposite parties, this Court observes that any observation made by this Court or any observation made by the learned revisional court will not prejudice the case of either parties before the learned court below in any manner whatsoever.
22. Let a copy of this order be communicate to the court concerned through ‘FAX’.
(Anubha Rawat Choudhary, J.)
Mukul
3 issues framed by the court
Whether the dismissal of the revision appeal regarding double cognizance and prejudice from revisional observations is correct.
If the revisional court's order remanding the case lacked specific findings on offence, does the subsequent cognizance order cause prejudice to the accused?
Whether the lower court's subsequent order of cognizance amounts to mechanical following of the revisional court.
Colour shows how this judgement treated each authority
Dharam Pal and Others vs. State of Haryana and AnotherReferred¶32
(2014) 3 SCC 306 (Dharam Pal and Others vs. State of Haryana and Another) · Who else cites this
Nasim Ansari vs. State of JharkhandDistinguished¶33
2012 SCC OnLine Jhar 2185 (Nasim Ansari vs. State of Jharkhand) · Who else cites this
Md. Adil Ansari
Sobratan Khatoon
Rahim Ansari
Nasima Khatoon
Hakida Khatoon
Sarful Ansari
ANUBHA RAWAT CHOUDHARY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
