Jharkhand High Court
Rabindra Nath Dubey And Ors vs The State Of Jharkhand on 15 July, 2014
Equivalent citations: 2015 (1) AJR 73
Author: H. C. Mishra
Bench: H. C. Mishra
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No.556 of 2014
1. Rabindra Nath Dubey
2. Aruna Dubey
3. Tuku Dubey ..... ... Petitioners
Versus
The State of Jharkhand ..... ... Opposite Party
--------
CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
------
For the Petitioners : Mr. Kaushik Sarkhel , Advocate
For the State : A.P.P.
For the Informant : Mr. Kaushal Kishore Mishra
------
C.A.V. on 01.7.2014 Pronounced on 15.7.2014
H. C. Mishra, J. Heard learned counsel for the petitioners and learned counsel for the State
as also learned counsel for the Informant.
2. The petitioners are aggrieved by the order dated 29.1.2014, passed by the
learned Chief Judicial Magistrate, Jamtara, in G.R. Case No.972 of 2013,
whereby the cognizance has been taken against the petitioners for the offence
under Sections 498-A/304-B/34 of the Indian Penal Code, even though the
petitioners were not sent up for trial upon investigation in the case and the final
form was submitted in their favour.
3. The facts of this case lie in a short compass. The petitioners have been
made accused in Jamtara P.S. Case No.338 of 2013 corresponding to G.R.
No.972 of 2013, for the offences under Sections 498-A/304-B/34 of the IPC, on
the allegation that the accused persons being the husband and the in-laws of the
deceased lady used to subject her to cruelty and torture for demand of dowry and
ultimately, they committed her dowry death. The dead body of the deceased was
found hanging in the house. The case was instituted against the husband, and
the petitioners, who are the father-in-law, mother-in-law and aunt-in-law of the
deceased and the investigation was taken up. After the investigation, the police
submitted the charge-sheet against the husband of the deceased only, and has
submitted the final form in favour of the petitioners, stating lack of evidence
against them. The Court below, from perusal of the case diary, finding materials
against these petitioners also, took the cognizance against them as well, and
issued summons by order dated 29.1.2014, which is challenged in this
application.
4. Learned counsel for the petitioner has submitted that the impugned order
passed by the Court below is absolutely illegal, in view of the law recently laid
down by the Constitution Bench of Supreme Court of India in Dharam Pal &
Ors., Vs. State of Haryana & Anr., reported in (2014) 3 SCC 306. According to
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learned counsel for the petitioners, the Constitution Bench has laid down the law
that in the cases triable by the Court of Session, if after the investigation police
submits charge-sheet against some of the accused persons and final form in
favour of the others, the only course available to the Magistrate is to commit the
case to the Court of Session under Section 209 of the Cr.P.C., without taking
cognizance under Section 190 of the Cr.P.C. It has been submitted that the law
has been laid down by the Supreme Court that the Magistrate has to play only 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. Thereafter, it is
for the Court of Session to exercise its original jurisdiction under Section 193 of
the Cr.P.C., and to take cognizance of the offence. It is further submitted that the
Hon'ble Supreme Court has held that the cognizance cannot be taken twice and
it could be taken either by the Magistrate or by the Court of Session. It has also
been submitted that following the aforesaid decision, this Court in
Pramod Kumar Das Vs. State of Jharkhand, reported in 1914 (2) JBCJ 11, has
set aside the order taking cognizance, and has remanded back the case for
proceeding in accordance with law. Placing reliance on these decisions, learned
counsel for the petitioners has submitted that the impugned order cannot be
sustained in the eyes of law.
5. Learned counsel for the State as also learned counsel for the informant, on
the other hand have submitted that there is no illegality in the impugned order, in
as much as, it is well settled principle of law that upon submission of the final
report by the police officer under Section 173 of the Cr.P.C., the Magistrate can
apply his judicial mind and can take cognizance of the offence, even though the
police has not sent up the accused for the trial. It has also been submitted that
even in cases triable by the Court of Session, the power is available to the
Magistrate to take cognizance under Section 190 of the Cr.P.C., and thereafter to
commit the case to the Court of Session under Section 209 of the Cr.P.C. It has
been submitted by the learned counsel for the informant that this power has not
at all been taken away from the Magistrate in Dharam Pal's Case (supra).
Learned counsel in support of his contention has also placed reliance on the
same decision in Dharam Pal's Case (supra), as also in Uma Shankar Singh V.
State of Bihar & Anr., reported in (2010) 9 SCC 479, and other such cases,
which need not be discussed in detail.
6. Dharam Pal's case was initially directed to be heard by a three-Judge
Bench in the Supreme Court of India, in view of the conflict of opinion of the
two-Judge Benches in Kishori Singh Vs. State of Bihar, reported in
(2004) 13 SCC 11, Rajinder Prasad Vs. Bashir, reported in (2001) 8 SCC 522
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and SWIL Ltd. Vs. the State of Delhi, reported in (2001) 6 SCC 670. When the
matter was taken up for consideration by the three-Judge bench on 1.12.2014, it
was brought to the notice of the Court that two other decisions of the Apex Court
had direct bearing on the question sought to be determined. The first was in
Kishun Singh Vs. State of Bihar, reported in (1993) 2 SCC 16 and the other
was in Ranjit Singh Vs. State of Punjab, reported in (1998) 7 SCC 149. In
Ranjit Singh's Case, the observation made in Kishun Singh's Case was
disapproved, which was to the effect that the Sessions Court has power under
Section 193 of the Cr.P.C., to take cognizance of offence and summon the other
persons whose complicity in the commission of the trial could prima facie be
gathered from the materials available on record. When the matter was taken up
before the Constitution Bench in Dharam Pal's Case (supra), the Apex Court
framed six questions, which required consideration by the Constitution Bench,
which are as follows:-
"7.1. Does the Committing Magistrate have any other role to
play after committing the case to the Court of Session on
finding from the police report that the case was triable by the
Court of Session?
7.2. If the Magistrate disagrees with the police report and is
convinced that a case had also been made out for trial against
the persons who had been placed in Column 2 of the report,
does he have the jurisdiction to issue summons against them
also in order to include their names, along with Nafe Singh, to
stand trial in connection with the case made out in the police
report?
7.3. Having decided to issue summons against the appellants,
was the Magistrate required to follow the procedure of a
complaint case and to take evidence before committing them to
the Court of Session to stand trial or whether he was justified in
issuing summons against them without following such
procedure?
7.4. Can the Session Judge issue summons under Section 193
CrPC as a Court of original jurisdiction?
7.5. Upon the case being committed to the Court of Session,
could the Sessions Judge issue summons separately under
Section 193 of the Code or would he have to wait till the stage
under Section 319 of the Code was reached in order to take
recourse thereto?
7.6. Was Ranjit Singh Case which set aside the decision in
Kishun Singh case, rightly decided or not?"
7. The question 7.2, which has direct bearing to the present case, was
answered by the Supreme Court in the following terms:-
"35. in our view, the Magistrate has a role to play while
committing the case to the Court of Session upon taking
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cognizance on the police report submitted before him under
Section 173(2) Cr.P.C. In the event the Magistrate disagrees
with the police report, he has two choices. He may act on the
basis of a protest petition that may be filed, or he may, while
disagreeing with the police report, issue process and summon
the accused. Thereafter, if on being satisfied that a case had
been made out to proceed against the persons named in
column 2 of the report, proceed to try the said persons or if he
was satisfied that a case had been made out which was triable
by the Court of Session, he may commit the case to the Court
of Session to proceed further in the matter."
(Emphasis supplied).
Thus, from a plain reading of the law laid down by the Constitution Bench
of Supreme Court of India, it is clear that in the event the Magistrate disagrees
with the police report, he has two choices, one of them is that he may upon
taking the cognizance on the police report, disagree with the police report and
issue process summoning the accused persons named even in column-2 of the
report, and if the case is triable by the Court of Session, he may commit the case
to the Court of Session, to proceed further in the matter.
8. Questions No.7.4, 7.5 and 7.6 have been decided jointly by the
Constitution Bench and it has been held as follows:-
"37. Questions 4, 5 and 6 are more or less
interlinked. The answer to Question 4 must be in the
affirmative, namely, that the Sessions Judge was entitled to
issue summons under Section 193 CrPC upon the case being
committed to him by the learned Magistrate.
38. Section 193 of the Code Speaks of
cognizance of offences by the Court of Session and provides
as follows:-
"193. Cognizance of offences by Courts of
Session - Except as otherwise expressly provided by this
Code or by any other law for the time being in force, no Court
of Session shall take cognizance of any offence as a court of
original jurisdiction unless the case has been committed to it
by a Magistrate under this Code."
*** *** ***
39. This takes us to the next question as to
whether under Section 209, the Magistrate was required to
take cognizance of the offence before committing the case to
the Court of Session. It is well settled that cognizance of an
offence can only be taken once. In the event, a Magistrate
takes cognizance of the offence and then commits the case to
the Court of Session, the question of taking fresh cognizance
of the offence and, thereafter, proceed to issue summons, is
not in accordance with law. If cognizance is to be taken of the
offence, it could be taken either by the Magistrate or by the
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Court of Session. The language of Section 193 of the Code
very clearly indicates that once the case is committed to the
Court of Session by the learned Magistrate, the Court of
Session assumes original jurisdiction and all that goes with
the assumption of such jurisdiction. The provisions of Section
209 will, therefore, have to be understood as the learned
Magistrate playing a passive role in committing the case to
the Court of Session on finding from the police report that the
case was triable by the Court of Session. Nor can there be
any question of part cognizance being taken by the
Magistrate and part cognizance being taken by the learned
Sessions Judge."
9. Learned counsel for the petitioners has given much stress on these
paragraphs submitting that in such cases, the Magistrate has no power to take
cognizance and the Magistrate has only to play 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. Much stress has been given by the learned
counsel for the petitioner submitting, that it has been held that in the event the
Magistrate takes the cognizance of the offence and then commits the case to the
Court of Session, the question of taking fresh cognizance of the offence and
thereafter proceed to issue summons, is not in accordance with law. If the
cognizance is to be taken of the offence, it could be taken either by Magistrate or
by the Court of Session.
10. The fact however, remains that in the entire Judgment, it is no where held
that when the police report is submitted under Section 173 of the Cr.P.C., and if
the case is triable by the Court of Session, the Magistrate shall not take
cognizance under Section 190 of the Cr.P.C., and the only course open to the
Magistrate is to commit the case to the Court of Session under Section 209 of
the Cr.P.C., without taking the cognizance. In this case, it has been clearly held
that the law laid down by the Supreme Court in Kishun Singh's case, reported
in (1993) 2 SCC 16, is the correct law with respect to the powers of the Sessions
court after committal of the case to it by the learned Magistrate under Section
209 of the Cr.P.C. This brings us to the law laid down by the Supreme Court in
Kishun Singh's case, reported in (1993) 2 SCC 16, in which the law has been
laid down as follows:-
"7. ----------------- Even though the expression 'take
cognizance' is not defined, it is well settled by a catena of
decisions of this Court that when the Magistrate takes notice
of the accusations and applies his mind to the allegations
made in the complaint or police report or information and on
being satisfied that the allegations, if proved, would constitute
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an offence decides to initiate judicial proceedings against the
alleged offender he is said to have taken cognizance of the
offence. It is essential to bear in mind the fact that cognizance
is in regard to the offence and not the offender. Mere
application of mind does not amount to taking cognizance
unless the Magistrate does so for proceeding under Sections
200/204 of the Code (see Jamuna Singh v. Bhadai Sah,
[(1964) 5 SCR 37]. It is, therefore, obvious that if on receipt of
a complaint under Section 154 of the Code in regard to a
cognizable offence, an offence is registered and the
concerned police officer embarks on an investigation and
ultimately submits a police report under Section 173 of the
Code, the Magistrate may take cognizance and if the offence
is exclusively triable by a Court of Sessions, he must follow
the procedure set out in Section 209. That section provides
that when in a case instituted on a police report, as defined in
Section 2(r), or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the
offence is triable exclusively by the Court of Session, he shall
commit the case to the Court of Session and remand the
accused to custody. Section 193 of the old Code and as it
presently stands have a bearing and may be extracted at this
stage:
"Old Code
193. Cognizance of offences by Courts of Session.-- (1)
Except as otherwise expressly provided by this Code or by
any other law for the time being in force, no Court of Session
shall take cognizance of any offence as a Court of original
jurisdiction unless the accused has been committed to it by a
Magistrate duly empowered in that behalf.
New Code
193. Cognizance of offences by Courts of Session.-- Except
as otherwise expressly provided by this Code or by any other
law for the time being in force, no Court of Session shall take
cognizance of any offence as a Court of original jurisdiction
unless the case has been committed to it by a Magistrate
under this Code."
It may immediately be noticed that under the old
provision a Court of Session could not take cognizance of an
offence as a court of original jurisdiction unless the accused
was committed to it whereas under the recast section as it
presently stands the expression the accused has been
replaced by the words the case. As has been pointed out
earlier, under Section 190 cognizance has to be taken for the
offence and not the offender; so also under Section 193 the
emphasis now is to the committal of the case and no more on
the offender. So also Section 209 speaks of committing the
case to the Court of Session. On a conjoint reading of these
provisions it becomes clear that while under the old Code in
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view of the language of Section 193 unless an accused was
committed to the Court of Session the said court could not
take cognizance of an offence as a court of original
jurisdiction; now under Section 193 as it presently stands once
the case is committed the restriction disappears. -------.
*** *** ***
13. ---------------- . We have already pointed out earlier the
two alternative modes in which the Criminal Law can be set
in motion; by the filing of information with the police under
Section 154 of the Code or upon receipt of a complaint or
information by a Magistrate. The former would lead to
investigation by the police and may culminate in a police
report under Section 173 of the Code on the basis whereof
cognizance may be taken by the Magistrate under Section
190(1)(b) of the Code. -------------. Once the Magistrate takes
cognizance of the offence he may proceed to try the offender
(except where the case is transferred under Section 191) or
commit him for trial under Section 209 of the Code if the
offence is triable exclusively by a Court of Session. As pointed
out earlier cognizance is taken of the offence and not the
offender. --------.
*** *** ***
16. We have already indicated earlier ------- that once the court
takes cognizance of the offence (not the offender) it becomes
the court's duty to find out the real offenders and if it comes to
the conclusion that besides the persons put up for trial by the
police some others are also involved in the commission of
the crime, it is the court's duty to summon them to stand trial
along with those already named, since summoning them
would only be a part of the process of taking cognizance.
---------- Thus, on a plain reading of Section 193, as it
presently stands once the case is committed to the Court of
Session by a Magistrate under the Code, the restriction placed
on the power of the Court of Session to take cognizance of an
offence as a court of original jurisdiction gets lifted. On the
Magistrate committing the case under Section 209 to the
Court of Session the bar of Section 193 is lifted thereby
investing the Court of Session complete and unfettered
jurisdiction of the court of original jurisdiction to take
cognizance of the offence which would include the summoning
of the person or persons whose complicity in the
commission of the crime can prima facie be gathered from the
material available on record. ------------ ." (Emphasis
supplied).
11. From the law laid down as above, it is apparent that even if the expression
'take cognizance' is not defined, it is well settled by the catena of decisions that
when the Magistrate takes notice of the accusations and applies his mind to the
allegations and on being satisfied with the allegation that if proved, would
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constitute the offence, decides to initiate judicial proceeding against the alleged
offender, is said to have taken the cognizance of the offence. It is equally well
settled that the cognizance is in regard to the offence and not the offender. Once
the cognizance of offence is taken, it becomes the Court's duty to find out, who
the offenders really are, and if the Court finds and that apart from the person
sent up by the police, some other persons are also involved, it is the duty to
proceed against those persons by summoning them because the summoning of
the additional accused is part of the proceeding initiated by its taking cognizance
of the offence. Upon the Magistrate committing the case under Section 209 to
the Court of Session, the Court of Session has unfettered jurisdiction in the Court
of original jurisdiction to take cognizance of the offence, which would include the
summoning of the person or persons, whose complicity in the commission of the
crime can prima facie be gathered from the material available on record. It is this
view which has been affirmed by the Constitution Bench of Supreme Court of
India in Dharam Pal's Case (supra). It is thus, apparent that it is not the case
that once the cognizance of the offence (not the offender) is taken by the
Magistrate under Section 190 of the Cr.P.C., and case is committed to the Court
of Session under Section 209 of the Cr.P.C., upon finding that the case is triable
by the Court of Session, the Court of Session is required to take the cognizance
again against the persons, who were not sent up for trial. In Kishun Singh's
Case (Supra), it is squarely held that the cognizance is taken of the offence and
not of the offender. Accordingly, even if the Magistrate takes the cognizance of
the offence and commits the case to the Court of Session, without summoning
the accused persons, in whose favour the final form is submitted by the police, it
is always open to the Court of Session to apply its judicial mind to the material on
record and issue summons to such accused persons, who are not summoned
by the Magistrate. If the Magistrate commits the case after summoning the
accused persons, who are not sent up by the police for trial, the Court of Session
shall proceed from the stage thereafter.
12. Upon going through the law laid down by the Supreme Court in these
decisions, it is apparently clear that in such cases, where after the investigation,
the police submits charge-sheet against some of the accused persons and
submits the final form in favour of the other accused persons and the case is
triable by the Court of Session, the Magistrate may take the cognizance and
commit the case to the Court of Session for trial and the Court of Session while
exercising the power under Section 193 of the Cr.P.C., may issue summons to
those accused persons for facing the trial, who were not sent up for trail.
Similarly, it is also open to the Magistrate to take cognizance of the offence and
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summon the accused who were sent up for trial by the police, if the Magistrate is
satisfied that there are sufficient materials on record to put them to trial and after
appearance / production of the said accused persons, commit the case to the
Court of Session, where the Court of Session shall proceed from the stage of
Section 211 of the Cr.P.C. There is no question of taking the cognizance twice,
once by the Magistrate and subsequently by the Court of Session, in as much
as, the cognizance is taken of the offence and not of the offender. In my
considered view, the submission of the learned counsel for the petitioner that in
such cases, the Magistrate cannot take cognizance and it is only for the Court of
Session to take cognizance and proceed further, cannot be accepted. There is
no such ratio laid down by the Constitution Bench of the Supreme Court of India
in Dharam Pal's case (supra). Rather, question No.7.2, which has direct
bearing to the question of law involved in the present case, has been decided by
the Constitution Bench holding that in the event the Magistrate disagrees with
the police report, he has two choices, one of them is that he may upon taking the
cognizance on the police report, disagree with the police report and issue
process summoning the accused persons named even in column-2 of the
report, and if the case is triable by the Court of Session, he may commit the case
to the Court of Session, to proceed further in the matter.
13. In the present case, the course adopted by the learned Chief Judicial
Magistrate, Jamtara, of taking cognizance of the case upon the materials in the
case diary, and upon finding sufficient materials to put the petitioners also on
trial, summoning them pending the committal proceeding, in my considered view,
is fully in consonance of the law laid down by the Apex Court in answer to the
question No.7.2 framed by it in Dharam Pal's case (supra).
14. Even otherwise, Section 460 of the Cr.P.C., lays down as follows:-
"460. Irregularities which do not vitiate proceedings. -- If
any Magistrate not empowered by law to do any of the
following things, namely-
(a) --------
(b) --------
(c) --------
(d) --------
(e) to take cognizance of an offence under clause (a)
or clause (b) of sub-Section (1) of Section 190;
(f) --------
(g) --------
(h) --------
(i) --------
erroneously in good faith does that thing, his proceedings
shall not be set aside merely on the ground of his not being so
empowered."
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15. From plain reading of Section 460(e) of the Cr.P.C., it is apparent that
even if the cognizance of the offence is taken erroneously by the Magistrate, the
proceeding shall not be set-aside simply on the ground of his not being so
empowered and this does not vitiate the proceeding.
16. Accordingly, I do not find any illegality and/or irregularity in the impugned
order taking cognizance of the offence against the petitioners by the order dated
29.1.2014passed by the learned Chief Judicial Magistrate, Jamtara, in G.R. Case No.972 of 2013. Even otherwise, if the cognizance is taken even erroneously, the same cannot vitiate the proceeding, as the same stands protected under Section 460 of the Cr.P.C.
17. Accordingly, there is no merit in this application, and same, is hereby, dismissed.
( H. C. Mishra, J.) R.Kumar/