Delhi District Court
Mr. Ram Avtar Gupta vs State on 6 August, 2012
IN THE COURT OF SH. O.P. GUPTA DJ
CUMI/c ASJ (WEST)/ARCT, DELHI
***
Crl. Rev.15/12
Unique ID No. 02401R0316192012
Mr. Ram Avtar Gupta
s/o Sh. Gopi Chandigarh
r/o C368, Vikaspuri, New Delhi.
..... Petitioner
Versus
State
..... Respondent
Date of Institution : 06.07.2012
Date of Arguments : 31.07.2012
Date of Order : 06.08.2012
ORDER
Being dissatisfied with order dated 28.6.2012 passed by Ld. MM dismissing application u/s 468 Cr. PC moved by the petitioner, the present revision has been filed.
2. Petitioner is one of the accused in case FIR no. 706/2007 dated 16.8.2007 PS Uttam Nagar u/s 288/337/304A IPC. Initially a report U/s 173 CrPC was filed on 5.10.2009 in which Crl.Rev.No.15/12 Page 1 of 5 the present petitioner was placed in column no. 12 as having not been sent for trial. The other accused Mohd. Safi was sent for trial. He was contractor (thekedar) who had undertaken to raise construction on site where mishap took place. The complainant / injured named present petitioner as one who had given the said work, in the FIR. The Ld. MM observed that it was not clear as to what facts were gathered during investigation on the basis of which the present petitioner was absolved of the allegations made in the FIR. In her opinion the matter required further investigation, the investigation lacked due clarity which could enable taking of cognizance by court. Bare statements of the present petitioner did not appear credit worthy. The SHO was directed to conduct further investigation and file a report.
3. After reinvestigation the police filed a fresh report U/s 173 Cr. PC bearing the date of 21.2.2012. On this both the accused were directed to be summoned for 07.5.2012 vide order dated 16.3.2012. On appearance the petitioner moved application U/s 468 CrPC praying that the cognizance was barred by limitation. Vide impugned order Ld. MM dismissed the said application.
4. I have gone through the material on record and heard the arguments.
Crl.Rev.No.15/12 Page 2 of 5
5. The counsel for the petitioner relied upon judgments in Hemanta Boro Vs. State of Assam, 2008 Crl. LJ 3089, Srinivas Pal Vs Union Territory of Arunachal Pradesh AIR 1988 Supreme Court 1729 & P.M. Abubacker Vs. P.J. Alexander 2000 Crl. LJ 1168 (AP). The Ld. MM distinguished decision in the first cited case on the ground that in that case even the first charge sheet was filed after 3 years and was barred by limitation.
6. The Ld. MM held that cognizance is taken of an offence and not against the offender as per Byaya Dass Vs State of Orissa 2003 Crl. LJ 1621. She relied upon K.Venugopalan Vs State of Kerala 2003 Crl.L.J 1427 in which it was held that 'cognizance' indicates the point when Magistrate first takes judicial notice of an offence. Initiation of proceedings is entirely different from taking cognizance. In her opinion her Predecessor applied judicial mind on 05.10.2009 when first charge sheet was filed and order for further investigation was made. The Court again took cognizance of the offence on 16.03.2012 when the second charge sheet was filed.
7. I feel that Ld.MM was right to the extent that entire controversy centered around point of time cognizance can be deemed to have been taken. But she fell into error while holding Crl.Rev.No.15/12 Page 3 of 5 that cognizance was taken on 05.10.2009 when the first charge sheet was filed. This observation runs contra to the subsequent observations that Court again took cognizance of the offence on 16.03.2012 when second charge sheet was filed. There cannot be two cognizance in one case.
8. The order dated 05.10.2009 itself shows that investigation lacked due clarity so as to enable taking of cognizance. This means that Court was not in a position to take cognizance and no cognizance was taken. So now it cannot be said that cognizance was taken on 05.10.2009.
9. There is yet another way of looking at the matter. If it is held that the Court took cognizance on 05.10.2009 when the first charge sheet was filed, the order directing further investigation would be bad in law. When a report under Section 173 CrPC is filed, three options are available to the Magistrate. One is he may take cognizance, the other is that he may disagree with the report and refuse to take cognizance and the third is that he may direct reinvestigation. But recourse cannot be held to more than one options available.
10. At this juncture reference with advantage may be made to Crl.Rev.No.15/12 Page 4 of 5 decision of Hon'ble Supreme Court in Randhir Singh Rana Vs State being The Delhi Administration 65 (1997) DLT 207 in which Hon'ble Supreme Court held that after taking cognizance the Court cannot direct suo moto reinvestigation in the matter.
11. Thus it appears that order dated 05.10.2009 was in the nature of investigation or reinvestigation. Both stand on the same footing. Such orders are in the nature of pre cognizance stage such as order under Section 156(3) CrPC. The cognizance was taken on 16.03.2012 and on that date the same was barred by limitation. Thus the application of the petitioner ought to have been allowed. Consequently the revision is accepted, impugned order is set aside and cognizance against the petitioner is held to be barred by limitation.
12. The Ld.MM would proceed with the matter against co accused Mohd. Safi in accordance with law.
Copy of the order be sent to Ld.Trial Court. Revision file be consigned to record room.
Announced in open Court on (O.P. GUPTA)
this 6th day of August, 2012 DJ & ASJ I/c ASJ (W)/ ARCT
DELHI
Crl.Rev.No.15/12 Page 5 of 5