Allowed

Jagdish v. State of Rajasthan through Pp

Rajasthan HC16 May 2019CRLMP/730/2018

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed a criminal miscellaneous petition, quashing the impugned order of a Magistrate who took cognizance against the petitioner despite cognizance having already been taken on the same case against another accused, holding that a Magistrate becomes functus officio once cognizance is taken.

What did the court decide?

Impugned order passed by the Court below were quashed and set aside.

Jagdish Vs State of Rajasthan through Pp — Criminal Trial and Appeal | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 730/2018

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Jagdish S/o Ghisaram Jat, B/c Jat, R/o Palu Kala, Police Station, Dudu, District Jaipur Raj

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----Petitioner

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Versus

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State Of Rajasthan through PP

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----Respondent

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For Petitioner(s) : Mr. Pankaj Gupta. For Complainant : Mr. Kamal Kant Sharma. For State : Mr. Arvind Kumar, PP.

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HON'BLE MR. JUSTICE PANKAJ BHANDARI Judgment / Order

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16/05/2019

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Petitioner has preferred this Criminal Misc. Petition under Section 482 Cr.P.C. aggrieved by Order dated 21.01.2018 passed by Additional District and Sessions Judge, Camp at Dudu, District Jaipur, whereby revision petition filed by the petitioner was dismissed and the Order dated 08.12.2017 passed by Additional Chief Judicial Magistrate, Dudu, District, Jaipur, whereby the Court has taken cognizance under Sections 366 & 376/109 of IPC against the petitioner was affirmed.

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Succinctly stated the facts in this case are that a FIR was lodged by the complainant on 29.06.2017. The Police submitted the charge-sheet on 19.08.2017 against Govind @ Raju. The Court on the same date took cognizance against Govind @ Raju under Sections 170, 171, 366, 376 & 506 of IPC and posted the matter for providing the documents to the accused. Thereafter, an application was moved on 01.09.2017 by the complainant with a prayer that the matter be sent to some senior officer for re-

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investigation. The Trial Court vide Order dated 08.12.2017 declined the prayer for sending the matter for re-investigation, however cognizance was taken against the petitioner for offence under Sections 366 & 376/109 of IPC and petitioner has been summoned by arrest warrants.

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It is contended by counsel for the petitioner that cognizance can only be taken once in a matter. It is argued that once the Magistrate had taken cognizance on 19.08.2017, he became functus officio, as he has already taking cognizance against the accused after considering the charge-sheet. It is contended that the Police had submitted negative final report, as far as petitioner was concerned and the proper course available to the complainant was to file protest petition. The prayer made in the application dated 01.09.2017 was limited to the extent of sending the matter for re-investigation, which prayer was rejected by the Court below. 4. Counsel for the petitioner has placed reliance on “ Dharam Pal & Ors vs. State of Haryana & Anr. (2014) 3 SCC 306” , wherein Apex Court has held that cognizance for offence can only be taken once. 5. Reliance has also placed on “ Balveer Singh & Anr. vs. State of Raj. & Anr. (2016) 6 SCC 680”, which was a case wherein the Court dealt with two situations: Situation A:when Magistrate has played an active role in taking/refusing cognizance before committing case under Section 209 Cr.P.C. and Situation B:When Magistrate has played a passive role in committing case under Section 209 Cr.P.C. The Apex Court has held that in situation-A i.e. of active committal, when Magistrate has already exercised cognizance power, Sessions Court cannot take cognizance for a second time “as a court of original jurisdiction”

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under Section 193 Cr.P.C., as cognizance of an offence can only be taken once. However, in situation-B i.e. passive committal, since Magistrate has not exercised cognizance power, Sessions Court is free to exercise the same for the first time “as a court of original jurisdiction” and take cognizance.

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Reliance has also placed on “ Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel & Ors. (2017) 4 SCC

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177” , wherein the Magistrate Court on an application moved by the complainant directed further investigation and the Court observed that once cognizance is taken, the Court cannot direct further investigation either suo-moto or on prayer made by complainant.

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Counsel for the complainant has opposed the Criminal Misc. Petition. His contention is that the Magistrate has applied his mind on the statement recorded under Section 164 Cr.P.C. and had summoned the accused as prima facie offence under Sections 366 & 376 read with Section 109 of IPC is made out. It is contended that summoning the accused does not tentamount to second cognizance.

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Counsel for the complainant has placed reliance on “ Hardip Singh vs. State of Punjab & Ors. AIR 2014 SC 1400” , wherein Court was dealing with provision of Section 319 Cr.P.C. and the Apex Court observed that power under Section 319 Cr.P.C. can be exercised when the enquiry has commenced and is going on or trial has commenced and going on.

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Reliance has also placed on “ Smt. Sarla Devi vs. State of Raj. & Anr. S.B. Criminal Misc. Petition No.1348/2010, decided on 06.04.2012” , wherein High Court held that the

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Court is not required to wait till the stage of Section 319 Cr.P.C. for summoning the additional accused.

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I have considered the contentions and have gone through the provisions of Section 190 Cr.P.C.

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As per Section 190 Cr.P.C.:

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“any Magistrate of the first class may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence (b) upon a Police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed”.

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Admittedly, the Police has submitted charge-sheet only against Govind @ Raju on 19.08.2017 and on the same date after examining the charge-sheet, the Court took cognizance against Govind @ Raju. No additional facts was made available to the Court after 19.08.2017 and merely an application was moved by the complainant on 01.09.2017 that the matter be referred for further investigation. The Court below having rejected the prayer for sending the matter for further investigation came to the conclusion that offence under Sections 366 & 376/109 of IPC is made out against the petitioner and proceeded to issue arrest warrants against the petitioner.

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The Apex Court has held that cognizance of an offence can be taken only once, which Court did on 19.08.2017. As to whether the power can be exercised by the Sessions Court to which offence is committed is not the question before this Court, I am of the considered view that once the Court has taken cognizance of an offence, the Magistrate Court becomes functus officio and the only work which is left is of an administrative nature that is to commit to the Court of Sessions after complying the provisions of Sections 207 to 209 Cr.P.C. The Magistrate Court has gone beyond the

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prayer made in the application filed by the complainant and has taken cognizance again vide impugned order dated 08.12.2017. 14. The Judgment cited by counsel for the complainant in Hardip Singh vs. State of Punjab & Ors. (Supra) was dealing with the provisions of Section 319 Cr.P.C. wherein it was observed by the Apex Court that 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 Section 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.

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Though petitioner has exercised his power of revision but it appears to be an exceptional case as the Magistrate has exceeded the powers available to him under the Code and the Revisional Court has also held that the Court had not taken second cognizance as only process was issued. Trial Court having come to the conclusion that prima facie offence is made out had summoned the petitioner which itself tentamounts to taking cognizance against the petitioner. Since, the Magistrate has acted beyond the provisions of Cr.P.C., the Order cannot be sustained and to prevent the abuse of process of Court and secure the ends of justice, this Court deems it proper to invoke the inherent powers under Section 482 Cr.P.C..

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Consequently, the Criminal Misc. Petition is allowed. Impugned order passed by the Court below are quashed and set aside. Stay application stands disposed.

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(PANKAJ BHANDARI),J

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CHANDAN /31

Jagdish v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Jagdish v. State of Rajasthan through Pp

Case brief

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What did the court decide?

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