Orissa High Court
Unknown vs State Of Orissa And ... Opposite Parties on 1 October, 2024
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.587 of 2023
(An application U/S. 401 read with Section 397 of the
Code of Criminal Procedure, 1973 against the order dated
25.09.2023 passed by learned JMFC, Salipur in ICC Case
No.11/2023 arising out of GR Case No. 14 of 2021
corresponding to Mahanga P.S. Case No. 05/2021)
Pratap Kumar Jena @ ... Petitioner
Pratap Jena
-versus-
State of Orissa and ... Opposite Parties
another
For Petitioner : Mr. S. Agarwal, Sr. Advocate
along with Mr. D.P. Dhal, Sr.
Advocate, Mr. P. Mahapatra,
Mr. A. Mohanty and
Mr. A Ray, Advocates
For Opposite Parties : Mrs. S. Pattanaik, AGA
Mr. J.K. Das, Sr. Advocate
along with Mr. P. Parija and
Mr. L.K. Maharana,
Advocates for OPNo.2
CORAM:
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :01.08.2024
DATE OF JUDGMENT:01.10.2024
G. Satapathy, J.
1. The petitioner by invoking the jurisdiction of this Court U/S. 401 read with Section 397 of the Code of CRLREV No.587 of 2023 Page 1 of 59 Criminal Procedure, 1973 ( in short, "CrPC") has challenged the order dated 25.09.2023 passed on the protest petition filed in the shape of complaint in ICC No. 11 of 2023 arising out of G.R. Case No. 14 of 2021 corresponding to Mahanga P.S. Case No. 5 of 2021, by which the learned J.M.F.C., Salipur has again taken cognizance of offences punishable U/Ss. 302/120-B and 506 of Indian Penal Code, 1860 (in short, "IPC") and directed the complainant to file requisites for issuance of process against the petitioner.
2. The main ground of challenge in this revision is that the impugned order taking cognizance of offences again being passed on the second protest petition subsequently to the order taking cognizance dated 03.05.2021 passed in G.R. Case No. 14 of 2021 for commission of offences punishable U/Ss. 120- B/147/148/302/506/149 of IPC read with Section 26/27 of Arms Act and committing the case record to the Court of Sessions on 08.10.2021 qua the other accused persons which was registered as S.T. Case No. 32 of CRLREV No.587 of 2023 Page 2 of 59 2021 of the Court of learned Additional Sessions Judge, Salipur, is illegal and unsustainable in the eye of law, since cognizance of offence is taken once as well as after commitment of records, there remains no record with the committing Court.
3. The short background facts required for disposal of this revision are that on 02.01.2021 at about 7.50 PM, two persons namely Kulamani Baral and Dibyasingh Baral of village Jankoti were being brutally assaulted by a group of persons with lethal weapons like sword, billhook, gun and chappad(sharp cutting weapon), near the house of one Suresh Chandra Sarangi leading to their death in the hospital at CHC, Mahanga. On the next day at about 8.35 AM, one Ramakanta Baral who was the son of the deceased Kulamani Baral appeared at Mahanga PS and presented an FIR (Annexure-1) alleging therein against 14 persons in killing his father and deceased Dibyasingh Baral, but in such FIR the informant Ramakanta Baral specifically alleged against the present petitioner who was then a sitting MLA and CRLREV No.587 of 2023 Page 3 of 59 was earlier a Minister, for giving threatening to kill the deceased Kulamani Baral who disclosed it before the informant just four days before the occurrence. 3.1 On the aforesaid FIR, Mahanga PS Case No.5 of 2021 corresponding to GR Case No.14 of 2021 of the Court of learned JMFC, Salipur was registered against the petitioner and others for commission of offence U/Ss.147/148/149/506/302/120-B of IPC r/w Sections 25/27 of Arms Act and, accordingly, the investigation ensued in the matter which culminated in submission of charge-sheet against 13 accused persons on 01.05.2021, but the investigating officer did not file any chargesheet against the petitioner and another person namely Shakti Prasad Rout as the allegation against them could not be substantiated. On receipt of the charge-sheet(final form), the learned JMFC, Salipur vide order dated 04.05.2021 (Annexure-3) by taking cognizance of offences issued process against the accused persons named in the final form submitted by the IO under Annexure-2. Being dissatisfied with the CRLREV No.587 of 2023 Page 4 of 59 result of investigation for not finding complicity of the petitioner in this case, the informant-Ramakanta Baral on 16.08.2021 filed a complaint in 1CC Case No.217 of 2021 in the form of protest petition vide Annexure-4 before the learned JMFC, Salipur who vide an order dated 25.08.2021 under Annexure-5 by making a detail analysis, directed the IIC, Mahanga PS to take up further investigation against the petitioner and to submit a report in accordance with Section 173(8) of CrPC on the aforesaid protest petition of the informant. Pending further investigation, the learned JMFC, Salipur vide order dated 08.10.2021 under Annexure-6 committed the case record to the Court of learned Additional Sessions Judge, Salipur leading to registration of ST Case No.32 of 2021 for trial of the 10 apprehended accused persons whose names found place in the charge-sheet. On 18.11.2021, the learned JMFC, Salipur by an order under Annexure-7 passed in the complaint on the petition of the complainant directed the IIC, Mahanga PS for collection and preservation of CDR of CRLREV No.587 of 2023 Page 5 of 59 material persons and to intimate the Court about the action taken by 25.11.2021. However, on 20.09.2022, the investigating officer filed the final form under Annexure-8 by submitting a final report against the petitioner treating the case against him as false. 3.2 Against the aforesaid final report, since the informant in Mahanga PS Case No.5 of 2021 died in the meanwhile, his brother instituted a second complaint in the form of protest petition on 09.01.2023 under Annexure-9 which was registered as 1CC Case No.11 of 2023 in the Court of learned JMFC, Salipur. After recording the initial statement of the complainant under Section 200 of CrPC as well as the statements of other witnesses in an enquiry under Section 202 of CrPC, the learned JMFC, Salipur transferred the record on 15.09.2023 to the learned Additional District & Sessions Judge-cum-Special Court, Bhubaneswar for disposal of the case in accordance with law on the ground that the said Court has jurisdiction to deal with the matter relating to MP and MLA, but such record was returned CRLREV No.587 of 2023 Page 6 of 59 back to the learned JMFC, Salipur on 25.09.2023 for the defect of not taking cognizance. Accordingly, on 25.09.2023, the learned JMFC, Salipur by an order took cognizance again for offences U/Ss 302/120-B/506 of IPC by holding the same to have been made out against the petitioner and directed the complainant to file requisites for issuing summons/process against the petitioner. On the aforesaid backdrop, the petitioner claiming incurable jurisdictional error and illegality has approached this Court in this Criminal Revision praying to quash the order taking cognizance of offences for second time and the entire criminal proceedings in 1CC Case No.11 of 2023.
4. In assailing the impugned order taking cognizance of offences for the second time, Mr. Siddharth Agarwal, learned Senior Counsel appearing along with Mr. D.P. Dhal, learned Senior Counsel for the petitioner has submitted that once Magistrate takes cognizance of offences upon receipt of police report and commit the case record to the Court of Sessions, he CRLREV No.587 of 2023 Page 7 of 59 becomes functus officio and such Magistrate is denuded with power of taking cognizance of offences for second time after initially taking cognizance of offences. It is further submitted by learned Senior Counsel Mr. Agarwal that after taking cognizance of offences upon receipt of report under Section 173(2) of Cr.P.C. in Mahanga PS Case No.5 of 2021 initially on 04.05.2021, the Magistrate could not have ordered for further investigation under Section 173(8) of Cr.P.C. without assigning any reason(s) or disagreeing with such report Under Section 173 of Cr.P.C. as submitted by the IO, but even thereafter, the IO on the direction of the learned Magistrate had conducted further investigation in the matter and submitted a final report as false against the petitioner and thereby, without disagreeing with such report on further investigation or assigning any reason, the learned Magistrate has erroneously entertained the second protest petition on the same facts and incident and that too, after a considerable lapse of time of commitment of case record in original file to the Court of CRLREV No.587 of 2023 Page 8 of 59 Sessions on 08.10.2021 by entertaining the second protest petition on 09.01.2023. It is further submitted by Mr. Agarwal that there is no bar in entertaining the second protest petition, but the same should be resorted to in exceptional circumstance, more particularly the same can be done by a reasoned order, however, no reasoned order having been passed to entertain the second protest petition, the proceeding itself pursuant to the second protest petition is vitiated and liable to be quashed, especially when the investigating agency has submitted the final report as false against the petitioner after duly analyzing the allegation stated in the first protest petition as well as making an analysis of detailed call records of the phone numbers used by the petitioner, so also examining the witnesses on whose statements in an enquiry under Section 202 of Cr.P.C., the learned Magistrate has taken cognizance of offences for the second time by directing to issue process against the petitioner. Mr. Agarwal has further submitted that after committal of the case record, 13 accused persons CRLREV No.587 of 2023 Page 9 of 59 are facing trial in respect of the same incident in the Court of learned Additional Sessions Judge, Salipur and the Magistrate after committing the case record to the Court of Sessions is denuded with the power to entertain the second protest petition. However, ignoring such situation, the learned Magistrate has exceeded jurisdiction by taking cognizance of offences and directing issuance of process when the learned Additional Sessions Judge is in seisin over the case, but by adding the petitioner as an accused in this case, the learned Magistrate has practically adopted the course under Section 319 of Cr.P.C., but such power is not available to him in view of the fact that the case record has been committed to the Court of Sessions who is in seisin over the matter and, therefore, the impugned order as well as the proceeding arising out of second protest petition in 1CC Case No.11 of 2023 are ex-facie illegal and cannot stand on the scrutiny of law. In order to fortify his submission, Mr. Agarwal, learned Senior Counsel has mainly relied upon the decisions in (1) CRLREV No.587 of 2023 Page 10 of 59 Dharam Pal and others v. State of Haryana and another; (2014) 3 SCC 306, (2) Kishun Singh v. State of Bihar; (1993) 2 SCC 16, (3) Sk. Latfur Rahman and others v. The State; (1985) CriLJ 1238 (FB), (4) Bichitra Pradhan and others v. State of Orissa and another; (2023) SCC Online 6069, (5) Krishna Lal Chawla v. State of Uttar Pradesh and another; (2021) 5 SCC 435, (6) Suresh Garodia v. State of Assam and another; 2024 SCC Online SC 38, (7) Hardeep Singh vrs. State of Punjab and others; (2014) 3 SCC 92 and (8) Birla Corporation Limited v. Adventz Investments and Holdings Limited and others; (2019) 16 SCC 610. In summing up his argument and reiterating the facts of the case, Mr. S. Agarwal has prayed to allow the Revision by quashing the impugned order and the criminal proceeding arising out of second protest petition in 1CC Case No.11 of 2023.
5. In repealing the aforesaid submissions as advanced for the petitioner, Mr. J.K. Das, learned Senior CRLREV No.587 of 2023 Page 11 of 59 Counsel appearing along with Mr. P. Parija, learned counsel for OPNo.2 has submitted that law does provide for filing or entertaining of second complaint even on the same facts and since the investigation in this case against the petitioner, who was a sitting MLA of the ruling party then was biased, the complainant-cum- OPNo.2 was forced to institute the second protest petition, especially when the first protest petition was neither investigated into properly nor was any evidence collected against the petitioner for his influence ultimately leading to filing of closure report against him by the police which necessitated the filing of second protest petition against him which was rightly entertained by the learned Magistrate who has committed no illegality in taking cognizance of offences and issuing process against the petitioner by taking into consideration the statement of the complainant and witnesses. It is also submitted by Mr. Das that there is absolutely no bar to entertain the second protest petition even after committal of the case record to the Court of CRLREV No.587 of 2023 Page 12 of 59 Sessions for trial of other accused persons, since the investigating agency committed willful lapses in submitting a closure report against the petitioner. It is also submitted on behalf of OPNo.2 that law confers power on the Magistrate to take cognizance of offences under Section 190(1)(a) of Cr.P.C. on the basis of original complaint upon examination of the complainant and witnesses on oath in view of the provision laid down in Section 200 and 202 of Cr.P.C. which has been clearly laid down by the Apex Court in H.S. Bains v. State (Union Territory of Chandigarh); AIR 1980 SC 1883. It is also argued on behalf of OPNo.2 that the Magistrate has got definite power to issue process even against those persons not arraigned as an accused in police report and whose name also does not figure out in Column No.2 of such report, but in this case, the petitioner being named in the FIR and the investigation against him being biased, it was perfectly within the power and domain of the learned jurisdictional Magistrate to proceed against him on the protest petition CRLREV No.587 of 2023 Page 13 of 59 which is the proposition enunciated by the Apex Court in Nahar Singh v. State of Uttar Pradesh and another; (2022) 5 SCC 295. Further, it is submitted by Mr. Das that the criminal proceeding against the petitioner arising out of the protest petition cannot be quashed in exercise of power under Sections 397/401 of Cr.P.C. Learned Senior Counsel has also submitted by relying upon the decision in Vinubhai Haribhai Malaviya and others v. State of Gujarat and another; (2019) 17 SCC 1 that the direction passed by the learned Magistrate in directing further investigation even after committing the record to the Court of Sessions does not suffer from any infirmity, since the Magistrate at all stages of criminal proceeding has power to direct for further investigation. Mr. Das, learned Senior Counsel while concluding his argument has prayed to dismiss the Criminal Revision.
6. In playing a passive role, Mrs. S. Pattanaik, learned AGA, however, has submitted that upon receipt of police report under Section 173(2) of Cr.P.C., the CRLREV No.587 of 2023 Page 14 of 59 learned Magistrate may agree or disagree with such report and proceed in accordance with law, but after taking cognizance of offences, the Magistrate cannot resort to Section 156(3) of Cr.P.C. for ordering a fresh investigation, however, in this case, the Magistrate having proceeded against the petitioner on the second protest petition, this Court may pass appropriate order in accordance with law.
7. After having bestowed an anxious and careful consideration to the rival submissions upon perusal of record, the following legal questions which arise for consideration of this Court are: -
(i) Whether the jurisdictional Magistrate can take cognizance of offence(s) for second time on the protest petition of the complainant-informant and issue process against a person, who although named in the FIR was not charge-
sheeted as an accused in the report submitted under Section 173(2) of Cr.P.C. after committal of case record to the Court of Sessions, especially when cognizance was already taken for the first time and process was issued against the accused persons named in such police report?
(ii) Whether all the actions taken by jurisdictional Magistrate in the same case record CRLREV No.587 of 2023 Page 15 of 59 after its committal to the Court of Sessions are without any jurisdiction?
8. The aforesaid two questions are formulated on the basis of the undisputed facts involved in this case which disclose that two persons were being brutally assaulted to death and the son of one of the deceased lodged an FIR against 14 accused persons including the petitioner and one unknown person holding them responsible for the murder of his father and another and, the only allegation leveled against the petitioner in the FIR in this case is that the petitioner had threatened to kill the informant and his father which was disclosed by the deceased to his son-cum-informant just four days before the occurrence. The investigating officer upon investigation on the FIR of the informant submitted the report under Section 173(2) of CrPC by stating therein that the allegation against the petitioner could not be substantiated on verification of phone calls of the petitioner while submitting charge-sheet against 13 other accused persons. Pursuant to the aforesaid report under Section 173(2) of CrPC, the matter was further CRLREV No.587 of 2023 Page 16 of 59 investigated upon the first protest petition of the informant, but the IO upon further investigation submitted a final report treating the case against the petitioner as false leading to filing of second protest petition resulting in the impugned order. It is also not in dispute that the witnesses cited in the second protest petition figured out in the charge-sheet as a charge- sheet witnesses.
9. On consideration of the undisputed facts in the light of rival submissions, there appears no dispute that Chapter-XII of the CrPC lays down the statutory scheme and procedure to provide "information to the police and their powers to investigate the matter" and in any case upon completion of an investigation pursuant to the registration of the FIR, the officer-in-charge of such police station shall forward to the jurisdictional Magistrate empowered to take cognizance of offence on a police report, a report in the form prescribed by the Government stating inter-alia whether any offence appears to have committed and if so, by whom, which CRLREV No.587 of 2023 Page 17 of 59 has been provided in Section 173(2)(i)(d) of CrPC, but Sec. 173(2)(ii) makes it obligatory for the officer to communicate the action taken by him to the informant. This is not an empty formality, but a statutory duty cast upon the officer conducting investigation. Whatever may be the result of investigation, the informant is entitled to know such result and, therefore, the Court is duty bound to ensure the compliance of aforesaid provision. As soon as the jurisdictional Magistrate receives a report U/S. 173(2) of CrPC, he may either agree or disagree with such report, but in case he is not directing further investigation while agreeing with such report, it is advisable for him to give notice to the informant before accepting such report and taking further action thereof, which would obviously avoid anomaly and situation like this leading to further litigation. In this case at hand, the learned JMFC, Salipur while accepting such report U/S. 173(2) of CrPC, which was filed against 14 accused persons excluding the petitioner and one Shakti Prasad Rout, took cognizance of offences and directed issuance CRLREV No.587 of 2023 Page 18 of 59 of process against the accused persons named in the report, however, without giving notice to the informant who had right to know the result of investigation, which gave rise to further litigation in the matter. However, the informant being dissatisfied with the police report had filed a protest petition on 16.08.2021 which came to be registered as ICC No. 217 of 2021 and on 19.08.2021 the same was directed to be tagged with original case record in G.R. Case No. 14 of 2021, but on 25.08.2021 the learned JMFC, Salipur after referring to the various precedents of Apex Court had passed an order directing further investigation in the light of allegation raised in the protest petition, however, such order was bereft of any discussion with regard to any defect/negligence in the investigation nor does it disclose his dissatisfaction in the matter of investigation. Undoubtedly, the learned JMFC, Salipur had passed this order for further investigation against the petitioner, but the same was passed after passing of order taking cognizance of offences with issuance of process against the accused CRLREV No.587 of 2023 Page 19 of 59 persons named in the police report U/S. 173(2) of CrPC on 04.05.2021 in G.R. Case No. 14 of 2021, which order in fact also does not disclose any negligence/latches in the matter of investigation. This Court is conscious of the power of the Magistrate to direct further investigation, but when such power is being exercised by the learned Magistrate which is at the post cognizance stage, the order should have contained the reasons for directing further investigation which was in fact not done in this case.
10. The word further investigation as it denotes by its meaning is a continuation of earlier investigation, but it is neither fresh investigation nor re-investigation. Admittedly, charge-sheet No.109 dated 01.05.2021 was received in the Court on 03.05.2021 and on the next day, cognizance of offences was taken by the learned JMFC, Salipur, but the protest petition was received in the Court on 16.08.2021 which is more than three months after submission of charge-sheet. However, the learned Court of JMFC, Salipur is not denuded of power CRLREV No.587 of 2023 Page 20 of 59 to direct further investigation in such situation, but such order must contain the brief reasons as to why the further investigation is ordered since the Magistrate has already taken cognizance without noticing or indicating any defect or negligence in investigation. There is no dispute that if the police do not perform its statutory duty in accordance with law or the investigation is biased or there is defect or negligence in investigation, the Court cannot abdicate its duty by simply saying that the investigation is exclusive prerogative of police. Once the conscience of the Court is satisfied on analysis of material collected in the course of investigation that the police was slack or negligent in investigation or it has not investigated properly, in such situation, the Court cannot close its eye, rather it has got a constitutional duty to ensure fair and impartial investigation and, in such situation, the Court can direct for further investigation within the contours of law, since a fair investigation is explicit and inherent in Article 21 of the Constitution of India. This Court never doubts the CRLREV No.587 of 2023 Page 21 of 59 powers of the Magistrate to order for further investigation. The powers of the Magistrate and the stage of the case for directing further investigation has come up for discussion in the case of Vinubhai Haribhai Malaviya (supra) wherein a three Judge Bench of apex Court in paragraph-42 has been held as under:
"42. Xxx xxx xxx To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or CRLREV No.587 of 2023 Page 22 of 59 exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi v. State of Gujarat; (2004) 5 SCC 347."
11. The inevitable conclusion as emanates from the discussions made hereinabove is that the jurisdictional Magistrate has power and authority to direct for further investigation at post cognizance stage till the trial actually commences, but as the word "discretion" used in the decision Vinubhai Haribhai Malaviya (supra), the jurisdictional Magistrate has to exercise such discretion in accordance with law and the order directing for further investigation must contain the brief reasons for directing further investigation and such order directing further investigation should not be passed in a routine manner, merely on the asking of the party since the person who has been alleged has an inherent right not to be harassed on the pretext of further investigation merely on the ground of settling the score on account of personal vendetta of the other side. CRLREV No.587 of 2023 Page 23 of 59
12. This brings this Court to the main question which can be quite objectively said that cognizance of offence cannot be taken multiple times including for the second time. In a criminal case, the Magistrate is normally the interface between the investigating wing and the Court at the first point of time, irrespective of the offence(s) being triable by a Magistrate or a Court of Sessions, but not for an offence under Special Act, and taking cognizance of offence(s) more than once is impermissible, unless the order taking cognizance is set- aside or varied by the higher forum since cognizance of offence is taken, but not against the offender. Whether cognizance of offence(s) can be taken for the second time without the said order taking cognizance being set- aside or varied has been well settled by apex Court in the decision relied on by the petitioner in Dharam Pal (supra) wherein a Constitutional Bench of five judges in paragraph-39 has held as under:
"39. Xxx xxx xxx. 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 CRLREV No.587 of 2023 Page 24 of 59 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 by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge."
Similarly, in the decision relied on by the learned counsel for OPNo.2 in Balveer Singh and another v. State of Rajasthan and another; (2016) 6 SCC 680, the Apex Court by following the decision in Dharam Pal (supra) has once again reiterated that cognizance of offence can only be taken once and in the said decision, the Apex Court in paragraph-24 has held as under: -
"Xxx xxx xxx xxx it would be a case where the Magistrate has taken cognizance of offence. Notwithstanding the same, the Sessions Court on similar application made by the complainant before it, took cognizance thereupon, normally, such a course of action would not be permissible."CRLREV No.587 of 2023 Page 25 of 59
13. It is, therefore, crystal clear that in a criminal case, cognizance of offence can only be taken once, but not for multiple times. Admittedly, in this case, the learned JMFC, Salipur has entertained a second protest petition and after recording initial statement of the complainant and statements of witnesses in enquiry under Section 202 of CrPC has proceeded to take cognizance of offences again and directed issuance of process against the petitioner. This brings us to another legal puzzle about the validity of entertaining the second protest petition. It is, however, argued by Mr. Agarwal, learned Senior Counsel that entertaining second complaint in the form of protest petition would amount to grave abuse of process. In this regard, he has relied upon the decision in Krishna Lal Chawla (supra) wherein at paragraph-10, the Apex Court has observed as under: -
"10. ...Permitting multiple complaint by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such, he would be forced to keep surrendering his liberty and CRLREV No.587 of 2023 Page 26 of 59 precious time before the police and the courts, as and when required in each case..."
On the other hand, in the decision relied on by OPNo.2 in Shiv Sankar Singh v. State of Bihar and others; MANU/SC/1373/2011, the Apex Court has held that the law does not prohibit filing or entertaining of the second complaint even on the same facts, provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit. It is thus clear that the second protest petition is permissible and maintainable even on same facts, but subject to aforesaid stipulation as discussed. CRLREV No.587 of 2023 Page 27 of 59
14. Further, the OP No.2 has also relied upon the decision in Zunaid v. State of UP and others; 2023 SCC Online SC 1082 to contend that the learned Magistrate was not denuded of power to take cognizance of offence on second protest petition, but fact remains in the relied on case is that learned CJM had refused to accept the final report and accepted the protest petition and thereafter, proceeded U/Ss. 200 and 202 of CrPC which is not in the present case inasmuch as the learned JMFC, Salipur has never refused to accept the police report submitted by the Investigating Agency, rather he has accepted the police report, took cognizance of offences and committed the case to the Court of Sessions, whereafter he on receipt of first protest petition, has directed for further investigation in the matter, but when the police submitted a final report as FIR false on the allegation raised by the complainant in the complaint against the present Petitioner, OP No.2 filed second protest petition in which after initial statement and enquiry, the learned JMFC, Salipur took CRLREV No.587 of 2023 Page 28 of 59 cognizance of offence again and directed for filing of requisites for issuance of process against the Petitioner. At this juncture, it is considered apt to refer to paragraph-47 of the decision in Hardeep Singh(supra) wherein a Constitutional Bench of five Judges of Apex Court has held as under:-
"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) CrPC 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 CrPC, 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. 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 CrPC, 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 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or CRLREV No.587 of 2023 Page 29 of 59 subtracted to face trial before the Court of Session".
15. In the aforesaid situation, another legal question crops up as to whether the learned Magistrate was empowered to summon the present Petitioner in respect of the case which has already been committed by him to Court of Sessions around two years before, wherein the evidence has already been recorded, since admittedly by the time of filing of second protest petition, the complainant-cum-OP No.2 and two out of rest four witnesses have already tendered their evidence before the Sessions Court and the rest of two witnesses cited in the complaint have also tendered their evidence in the Court of Sessions by the time they were examined in the complaint U/S. 202 of CrPC. In peculiar situation, when the Sessions trial arising out of the present case, has already reached the stage of 319 of CrPC for addition of accused, but no such application was moved before the Sessions Court for arraying the Petitioner as an accused on the basis of evidence tendered by the witnesses and instead OP No.2 approached the learned JMFC, Salipur CRLREV No.587 of 2023 Page 30 of 59 without offering any explanation for not resorting to Sec.319 of CrPC. The aforesaid conundrum can be well answered by referring to the decision relied on by the Petitioner in Jile Singh v. State of Uttar Pradesh and another; (2012) 3 SCC 383, wherein after referring to the decision in Ranjit Singh v. State of Punjab; (1998) 7 SCC 149 which was subsequently followed by the Apex Court in Kishori Singh and others v. State of Bihar and another; 2004 13 SCC 11, the Apex Court in paragraph nos. 10, 11 and 12 has held as under:-
10. In Ranjit Singh (supra), this Court was concerned with the issue whether the Sessions Court can add a new person to the array of the accused in a case pending before it at a stage prior to collecting any evidence. The three Judge Bench that considered the above issue referred to various provisions of CrPC, namely, Sections 204, 207, 208, 209, 225, 226, 227, 228, 229, 230 and 319 and held as under: -
"19. So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 CrPC, that court can deal with only the accused referred to in Section 209 CrPC. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused.CRLREV No.587 of 2023 Page 31 of 59
20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 CrPC can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course, it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."
11. The above legal position has been reiterated by this Court in a subsequent decision in Kishori Singh (supra). The two- Judge Bench in Kishori Singh (supra) considered some of the provisions of CrPC and earlier decision of this Court in Ranjit Singh and two other decisions, namely, Raj Kishore Prasad vrs. State of Bihar; (1996) 4 SCC 495 and India Carat (P) Ltd. v. State of Karnataka; (1989) 2 SCC 132 and held as under:
9. After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10-6-1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 CrPC.CRLREV No.587 of 2023 Page 32 of 59
10. So far as those persons against whom charge-sheet has not been filed, they can be arrayed as 'accused persons' in exercise of powers under Section 319 CrPC when some evidence or materials are brought on record in course of trial or they could also be arrayed as „accused persons' only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three-Judge Bench decision.
Neither of the contingencies has arisen in the case in hand.
12. In the present case, if the order passed by the Chief Judicial Magistrate, Mathura, in issuing summons against the appellant on the complaint filed by Respondent 2 complainant, which has been confirmed by the High Court, is allowed to stand, it would mean addition of the appellant to the array of the accused in a pending case before the Sessions Judge at a stage prior to collecting any evidence by that court. This course is absolutely impermissible in view of the law laid down by a three-Judge Bench of this Court in Ranjit Singh(supra).
16. In Jile Singh(Supra), wherein the facts are somehow akin to the present case, the son of the Informant was found murdered and FIR was lodged by CRLREV No.587 of 2023 Page 33 of 59 him against unknown person, but on a conclusion of investigation, the IO submitted charge-sheet naming one Hari Singh as an accused for having committed the murder of the son of the Informant and on the basis of material collected by the IO, no case was found out against Jile Singh who was accordingly stated by the IO to have been falsely implicated in the course investigation and accordingly, the learned CJM, Mathura committed the accused Hari Singh to the Court of Sessions Judge, Mathura for trial, but the Informant instituted a complaint U/S. 200 CrPC against Jile Singh and one Jayveer Singh for the murder of his son and in such complaint, the learned CJM, Mathura after recording the statements U/S. 202 CrPC, issued summons to Jile Singh who being aggrieved, filed the criminal revision before the Allahabad High Court which came to be dismissed and thereby, leading to Jile Singh to approach the Apex Court in Criminal Appeal No. 121 of 2012 (Jile Singh v. State of Uttar Pradesh), wherein after analyzing the aforesaid facts, the Apex CRLREV No.587 of 2023 Page 34 of 59 Court referring to the decision indicated above has held in paragraph 13 as under:-
"13. The stage of Section 209 CrPC having been reached in the Case, it was not open to the Chief Judicial Magistrate, Mathura to exercise the power under Section 204(1)(b) CrPC and issue summons to the appellant (Jile Singh). The order of the Chief Judicial Magistrate, Mathura is totally without jurisdiction."
17. The aforesaid conclusion arrived at by the Apex Court makes it clear that once the Magistrate commits the case record to the Court of Sessions, it was not open for him to exercise jurisdiction to issue summons to other person as an accused when the Court of Sessions is in seisin over the said case. What is the stage at which power U/S 319 CrPC can be exercised has been answered by Apex Court in Hardeep Singh (supra) by recording conclusion at paragraph-117.1 that "in Dharam Pal (supra) case, the Constitutional Bench has already held that after committal, cognizance of offence can be taken against a person not named as an accused, but against whom materials are available from the papers filed by the police after completion of CRLREV No.587 of 2023 Page 35 of 59 investigation. Such cognizance can be taken U/S. 193 CrPC and the Sessions Judge need not wait till "evidence" U/S. 319 CrPC becomes available for summoning an additional accused". The upshot of aforesaid conclusion is on the basis that there cannot be a committal of case without there being an accused person before the Court, but this only means that before a case in respect of an offence is committed, there must be some accused suspected to be involved in the crime before the Court, but once the case in respect of offence qua those accused who are before the Court is committed then the cognizance of offence can be said to have been taken properly by the Court of Sessions and the bar U/S. 193 of CrPC would automatically get lifted and the said Court can summon the additional person(s) who appear to be involved in the crime, but not facing the trial along with those who had already facing the trial and such implied cognizance taken by Court of Sessions is incidental to the normal process as provided in Sec. 319 of CrPC.
CRLREV No.587 of 2023 Page 36 of 59
18. In this case, the learned JMFC on receipt of first protest petition directed for further investigation, but he instead of waiting the result of the further investigation, committed the case qua other accused persons to the Court of Sessions leading to the present controversy. This Court is never in dilemma that the Magistrate has ample power to direct further investigation even at the post cognizance stage, until trial commences with framing of charge, but it was desirable for him, more particularly in a Sessions case to wait for the result of the further investigation when he directs for further investigation pending committal of the case record to the Court of Sessions, otherwise such controversy is bound to occur. In order to avoid such situation like this, it would have been better for the learned JMFC who has directed for further investigation, but committed the case record qua the other accused persons against whom charge-sheet/police report have been filed pending further investigation, to commit/submit the case record on receipt of police CRLREV No.587 of 2023 Page 37 of 59 report in the matter of further investigation along with the documents and the protest petition together with the statements U/Ss. 200 and 202 of CrPC in case the complainant was not satisfied with the result of the further investigation, for taking necessary action at the end of the Court of Sessions in terms of Provision of Chapter-XVIII of CrPC, but the learned Magistrate should not have taken cognizance of offence for second time.
19. In Kishori Singh(supra), three appellants were named as accused in the FIR, but they had not been charge-sheeted and the offence in question was one, which was triable by a Court of Sessions and the learned Magistrate upon finding grounds to proceed against the accused persons by an order dated 10.06.1997 took cognizance of offences U/Ss. 302/34/324 and 448 of IPC and Sec. 27 of Arms Act, however, the Magistrate subsequently issued non- bailable warrants of arrest against the three appellants. On the above background of facts and by referring to the expression that "accused persons" would obviously CRLREV No.587 of 2023 Page 38 of 59 mean to those accused persons against whom the police had filed charge sheet, the Apex Court in Kishori Singh(supra) has held in paragraph-9 as under:-
"9. After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments [Raj Kishore Prasad(supra) and Ranjit Singh (supra)] and on examining the order dated 10-6-1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted in the charge- sheet that was filed by the police under Section 173 CrPC."
20. It is not out of place to mention here that even though the Magistrate takes cognizance of offence in respect of the accused persons named in the charge- sheet, however, the Court of Sessions on receipt of the case record upon committal to it has ample jurisdiction to take cognizance of offence of the persons not named as offender, but whose complicity in the case would be evident from the materials available on record and even without recording evidence, the Sessions Judge may summon those persons not named in the police report to stand trial along with those already named therein and CRLREV No.587 of 2023 Page 39 of 59 the aforesaid conclusion of law was clearly laid down by the Apex Court in paragraph 40 of the decision rendered by a Constitutional Bench of five Judges in Dharam Pal(supra):-
"40. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh‟s case[Kishun Singh v. State of Bihar; (1993) 2 SCC 16] that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.
21. The aforesaid legal conclusion although was very much available to the Court of Sessions, but no such power has been invoked to arraign the present Petitioner as an accused, however, the aforesaid remedy to arraign the Petitioner as an additional accused is not at all foreclosed since the provision of Sec. 319 of CrPC is still available as the trial against absconding accused has not yet commenced, but for exercise of such power is further subject to satisfaction of the Court within the CRLREV No.587 of 2023 Page 40 of 59 legal parameters as required therein. It is also not denied that neither the Sessions Court was moved nor did it invoke the power as contemplated U/S. 319 of CrPC to arraign the petitioner as an accused even after recording of evidence in the case record upon its committal.
22. In coming back to the applicability of the decisions relied on by OP No.2 in H.S. Bains(supra), the Apex Court therein has held that a Magistrate who on receipts of a complaint, orders an investigation U/S 156(3) and receives a police report U/S. 173(1), may, thereafter, do one of the three things: (i) he may decide that there is no sufficient ground for proceeding further and drop action; (ii) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (iii) he may take cognizance of offence U/S. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the CRLREV No.587 of 2023 Page 41 of 59 complainant and his witnesses U/S. 200. If he adopts the third alternative, he may hold or direct an inquiry U/S. 202 if he thinks fit. Thereafter, he may dismiss the complaint or issue process, as the case may be. This Court is quite conscious and alive with the aforesaid principles as laid down by the Apex Court in H.S. Bains(supra), but the facts involved in this case is quite different inasmuch as the learned JMFC, Salipur upon receipts of police report took cognizance of offences on 04.05.2021 without disagreeing with the conclusion arrived at by the Investigating Officer and subsequently, thereafter, on receipt of first protest petition, the learned Magistrate directed for further investigation on 25.08.2021, but on receipt of final report in respect of further investigation, the learned Magistrate proceeded to entertain a second protest petition without accepting or refusing the final report submitted on further investigation and took cognizance of offence again, even after two years of committing the case record to the Court of Sessions. In such situation, CRLREV No.587 of 2023 Page 42 of 59 the fact of the present case is found distinguishable to the facts involved in H.S. Bains(supra). In addition, the Opposite Party No.2 also relies heavily on Nahar Singh (supra) to contend that the Magistrate was not in error in taking cognizance of offence on second protest petition and issuing process against the Petitioner. True it is that on receipt of police report, the Magistrate is duty bound to find out the complicity of any person apart from those who are charge-sheeted and in case, the Magistrate comes to a conclusion that there is clinching evidence supporting the allegation made against some persons who have not been charge- sheeted, he can certainly proceed against such person by summoning them. Similarly at the cost of repetition, it has been held by the Apex Court in Dharam Pal(supra) that the Sessions Judge upon receipt of record on committal can also proceed against those persons who have not been charge-sheeted, but has been named or not named in the FIR provided their complicity in commission of offence is found out on the CRLREV No.587 of 2023 Page 43 of 59 basis of material produced by the Investigating Agency. Hence, the decision laid down in Nahar Singh(supra), rather supports the case of the Petitioner than of OP No.2 inasmuch as the Petitioner never disputes the position of law that the Magistrate may act on the basis of a protest petition that may be filed and commit the case record to the Court of Sessions, if the offences are triable by Court of Sessions and the power of Magistrate is not exercisable only in respect of persons whose names appear in column 2 of the charge sheet, but against those who are not arraigned as an accused in the police report, however, the present case relates to summoning of the Petitioner in the case which has already committed to Court of Sessions near about two years before the date of such summoning and more particularly, when the Court of Sessions is in seisin of the trial and that too, on the basis of second order of taking cognizance of offence on consideration of second protest petition, and statements of complainant and witnesses recorded U/Ss. 200 and 202 CrPC which CRLREV No.587 of 2023 Page 44 of 59 assumes significance in this situation, especially when the complainant and witnesses have already tendered their evidence in the trial before the Court of Sessions prior to filing of second protest petition, so also before their examination in the enquiry in such protest petition as well as no power U/S. 319 of CrPC being invoked even after such stage has already been reached before institution of the second protest petition.
23. This Court is also conscious of the significant change brought in the provision of cognizance of offence by a Court of Sessions as laid down in Sk.
Latfur(supra), which lays down that earlier under old Code (CrPC), the accused was committed, whereas the case is required to be committed in the new Code (CrPC). Thus, when Sec. 193 of CrPC read in juxtaposition with Sec. 209 of CrPC, it appears that it is the case of the accused that is committed to the Court of Sessions, but not the accused. Hence, once the case is committed to the Court of Sessions by a Magistrate under the CrPC, the restriction as placed on the power of CRLREV No.587 of 2023 Page 45 of 59 Court of Sessions to take cognizance of offence as a Court of original jurisdiction gets lifted and on committal of the case U/S. 209 of CrPC, the Bar U/S. 193 gets lifted and thereby, investing the Court of Sessions with complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of offence which would include the summoning of the person or persons whose complicity in the commission of crime can prima facie be gathered from the materials available on record. It is obviously true that cognizance of offence is taken, but not against the offender. However, applying the law laid down by the Apex Court in Dharam Pal (supra), the summoning of accused not named in the police report, but whose complicity is found on the basis of materials collected by the Investigating Agency is to be understood in the context of taking cognizance of offences committed by the said accused persons not named as offender in the charge-sheet, but whose complicity is evident from the materials available on record. It is, however, reminded here that if cognizance CRLREV No.587 of 2023 Page 46 of 59 is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. It has also been held by Dharam Pal(supra) that once the case is committed to the Court of Sessions by the learned Magistrate, the Court of Sessions assumes original jurisdiction and all that goes with assumption of such jurisdiction. From a careful conspectus of discussions made hereinabove together with precedents as laid down by the Apex Court in Dharam Pal, Hardeep Singh, Balveer Singh, Jile Singh and Kishori Singh(supra) which have been referred to above, the only answer to the questions as formulated is that the jurisdictional Magistrate cannot take cognizance of offences for the second time during the currency/validity of the first cognizance order even on a protest petition and such Magistrate cannot issue process against a person as an additional accused irrespective of the facts whether he is named or not named in the FIR, but not charge-sheeted, once the Magistrate commits the case record to the Court of Sessions after taking cognizance CRLREV No.587 of 2023 Page 47 of 59 of offences by issuing process against the accused persons named in the police report U/S. 173(2) of the CrPC and in such situation, it is the only the Court of Sessions which assumes original jurisdiction in the matter to add such person(s) as an additional accused whose name(s) was/were left out by the police while submitting report U/S. 173(2) of the CrPC or by the learned Committing Magistrate for not sending the additional accused for trial at the time of commitment, but his/their (additional accused) complicity in commission of offence is well made out and, therefore, the Magistrate after committing the case record the Court of Sessions being functus officio in the matter, all the actions taken by him in the same case record are without jurisdiction, but the aforesaid conclusion is not applicable in case of absconding accused against whom the original case record is separated/split off or such accused person is brought on record on further investigation in terms of Sec. 173(8) of CrPC. The two CRLREV No.587 of 2023 Page 48 of 59 questions as formulated by this Court are answered accordingly.
24. Law is also equally well settled and reiterated by the Apex Court in Suresh Garodia(supra) that the learned Magistrate while exercising his power U/S. 190 of CrPC, is not bound to accept the final report of the IO. However, if the learned Magistrate disagrees with the finding of the IO, the least that is expected of him is to give reasons as to why he disagrees with such report and as to why he finds it necessary to take cognizance despite the negative report submitted by the IO. In the present case, neither in his order dated 04.05.2021 on receipt of police report nor in his order dated 25.09.2023 on second protest petition, the learned Magistrate has whispered a single word as to why he agrees or disagrees with the conclusion arrived at by the IO in the course of investigation on the FIR or in the course of further investigation respectively. Further, the learned Magistrate in his order dated 04.05.2021 has simply accepted the police report on the FIR and took CRLREV No.587 of 2023 Page 49 of 59 cognizance of offences without disclosing/assigning any reason in respect of IO not charge-sheeting the Petitioner. Similarly, in his order dated 25.09.2023, the learned JMFC, Salipur has not made any reference to the final report submitted by the IO in the matter relating to further investigation on the allegation against the Petitioner, although such report discloses specific action taken by the IO in the course of further investigation.
25. The powers of Magistrate to summon a person not charge-sheeted as accused person is very much apparent that once he takes cognizance of offence, it is not obviously against any offender and after he takes cognizance of offence, it is his duty to find out who the offenders really are, but once he comes to a conclusion that apart from those accused persons sent up by the police to the Court, some others are still available and involved, the Magistrate is duty bound to proceed against those persons. The summoning of additional accused is part and parcel of the proceeding initiated by his taking cognizance of an offence. In this regard, this CRLREV No.587 of 2023 Page 50 of 59 Court is alive with the observation made in Sk. Latfur, wherein it has been held in paragraph-7 that a Magistrate trying a warrant case as also a Court of Session having once validly taken cognizance of offence on the basis of a police report(when considering material before it for framing of a charge) is not only entitled, but indeed, duty bound to summon a person as an accused to stand trial before it if it is fully satisfied of the existence of a prima facie case against an additional accused who may not have been sent up as such. In this case, the learned JMFC, Salipur neither has exercised such jurisdiction suo motu nor has he recorded any disagreement with the report of the police submitted U/S. 173(2) of CrPC on the two occasions i.e. after initial round of investigation and further investigation. It needs to be highlighted that when a person is named in the FIR by the complainant, but police after investigation finds no role of that particular person and files the charge sheet without implicating him, the Court is not powerless and at that stage of summoning, if the Court finds that a CRLREV No.587 of 2023 Page 51 of 59 particular person should be summoned as accused, even though not named in the charge sheet, it can do so. At that stage, chance is also given to complainant to file protest petition urging upon the Court to summon other persons who were named in the FIR, but not implicated in the charge sheet. Once that stage has gone, the Court is still not powerless by virtue of power U/S 319, however, the power therein gets triggered when during the trial some evidence surfaces against the proposed accused.
26. The concept fairness in criminal jurisprudence not only includes the right of accused, but also that of the complainant. It is also equally important that a person accused of offence is not found out to be involved for commission of the offence has a right not to face the rigmarole of trial and such right definitely flows from Article 21 of the Constitution of India. Further, the right of the de-facto complainant is no less important and deserves equal acceptance in the context of his grievance, but such grievance must stand to the legal CRLREV No.587 of 2023 Page 52 of 59 scrutiny, otherwise a failure of justice may be occasioned in accepting the claim of the complainant without any legal scrutiny. In the present case, the only allegation against the petitioner is for his involvement in conspiracy, but the police after two rounds of investigation did not find the complicity of petitioner, nonetheless the FIR allegation against the petitioner is for threatening to kill the informant and his father which was disclosed by the deceased to his son-cum-informant just four days before the occurrence. What is significant in this case is that the learned Magistrate, Salipur while accepting the police report U/S. 173(2) of CrPC in taking cognizance of offences has not disagreed with such report of the IO, nonetheless later on he had ordered for further investigation on the complaint of first complainant and also monitored the investigation by asking about preservation of CDR on the prayer of the first complainant. The second round of investigation which was specifically directed for further investigation with regard to conspiracy did not find the complicity of CRLREV No.587 of 2023 Page 53 of 59 the petitioner even after CDR analysis, but the learned JMFC, Salipur even thereafter directed for issuance of process against the petitioner as an additional accused by taking cognizance of offences for second time when the court of Sessions was in seisin over the matter, which in the circumstances appears to be not only erroneous, but cannot stand to the legal scrutiny. What cannot be forgotten in the context is that the Apex Court in paragraph-28 of the decision in Pepsi Foods Ltd. and another vrs. Special Judicial Magistrate and others; (1998) 5 SCC 749 has held thus:-
"28.summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegation made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. The Magistrate has to carefully CRLREV No.587 of 2023 Page 54 of 59 scrutinized the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
27. Similarly, in Birla Corporation Ltd. vrs. Adventz Investments and Holdings Limited and others; (2019) 16 SCC 610, the Apex Court at Paragraph-33 has held as under:-
"33. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to the accused in a complaint case and that there must be sufficient indication as to the application of mind".
28. In this premises, when the summoning of an accused in a criminal case is held to be a serious matter, but the present petitioner in this case has been arraigned as an additional accused and that too, at a stage on second protest petition after examination of the complainant and witnesses in the trial of such case CRLREV No.587 of 2023 Page 55 of 59 record after its commitment when the Court of Sessions was in seisin over the matter, which cannot be considered lightly, rather the same deserves to be considered in a higher pedestal of Article 21 of the Constitution of India and the aforesaid situation gains serious momentum when the answer to the questions so formulated in this case favour the plea of the petitioner which in the circumstance needs to be examined on the context of the serious contention of OP No.2 that the proceeding against the petitioner cannot be quashed in exercise of power of revisional jurisdiction since the powers of the Court U/Ss. 397/401 of CrPC is quite distinguishable and different from that of Sec.482 of CrPC. The answer to the aforesaid challenge of OP No.2 is provided in the decision relied on by the petitioner in Popular Muthiah vrs. State represented by Inspector of Police; (2006) 7 SCC 296, wherein the Apex Court at paragraphs-29 & 30 has held as under:-
"29. The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the CRLREV No.587 of 2023 Page 56 of 59 High Court can be exercised, it is trite, both in relation to substantive as also procedural matters.
30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions in that;
(i) Power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involved application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists. It is, therefore, very clear that even though the petitioner has knocked the door of this Court by invoking revisional jurisdiction, but the same is not a fetter creating Bar against use of jurisdiction by this Court U/S. 482 of CrPC, if the situation so demands or in the interest of justice. In this case, not only the order impugned is unsustainable in the eye of law, but also the CRLREV No.587 of 2023 Page 57 of 59 proceeding initiated against the petitioner in 1CC No. 11 of 2023 is absolutely without jurisdiction, since the learned JMFC, Salipur after committing the case record to the Court of Sessions without disagreeing with the report submitted by the IO U/S. 173(2) of CrPC has no jurisdiction to add the petitioner as an additional accused who was not charge-sheeted even after two rounds of investigation, more particularly when the Court of Sessions has already assumed jurisdiction over the matter after commitment and thereby, it was the Court of Sessions who could have passed order to add the petitioner as an additional accused, but the Court of Sessions had neither invoked its power nor was it moved to arraign the petitioner as an additional accused even after recording of evidence, which in the circumstance gives rise to an reasonable presumption that there was no material to proceed against the petitioner as an additional accused even on the evidence of complainant and witnesses cited in the second protest petition in the Sessions trial record. In the interest of justice, the CRLREV No.587 of 2023 Page 58 of 59 impugned order being unsustainable together with proceeding against the petitioner in 1CC No. 11 of 2023 is liable to be quashed.
29. Resultantly, the criminal revision stands allowed on contest, but no order as to costs. Accordingly, the impugned order dated 25.09.2023 passed by learned JMFC, Salipur in 1CC No. 11 of 2023 and the entire criminal proceeding against the petitioner therein are hereby quashed.
(G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 1st day of October, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 01-Oct-2024 17:11:28 CRLREV No.587 of 2023 Page 59 of 59