JUDGMENT
[ENTITY]
1. This revision petition is directed against the order, dated April 3, 1987 passed by Addl. Sessions Judge No. 1, Bharatpur, whereby he accepted the revision petition filed by the complainant against the order of learned Judicial Magistrate No. 1 Bharatpur who took cognizance of offence against [ENTITY].
2. Brief facts giving rise to this revision petition are that the complainant [ENTITY] filed a complaint against 5 persons on 6 8-1985 in the court of Judicial Magistrate No. 1 Bharatpur wherein it was alleged by him that on the night intervening between 24th and 25th June, 1985 at about 10.00 p.m. when he was sleeping in his house he heard the noice from the house of [ENTITY]. He suddenly got up and also awakened [ENTITY] his brother. When they intended to go to the house of [ENTITY] they found [ENTITY] and [ENTITY] standing at the gate with lathies. He and his brother then saw from their own compund that inside the hut of [ENTITY] and [ENTITY] had caught hold of the hands of [ENTITY] from behind and [ENTITY] was tying them. [ENTITY] was saying that he has not done anything wrong and [ENTITY] was alone in the house as the other persons had gone to see [ENTITY] she was feeling panicky and therefore, had called him. The same thing was being said by [ENTITY]. Still [ENTITY], [ENTITY] and [ENTITY] fell [ENTITY] down on the ground and then [ENTITY] put a knot by a string around his neck and strangulated him to death. Number of persons gathered there but these persons were saying that since [ENTITY] has committed sexual intercourse with [ENTITY] he has been done to death [ENTITY] was also saying the same that [ENTITY] was called by her as she was afraid of loneliness in the house and he had not committed anything wrong with her. She also said that she will tell the police that innocent man has been wrongly killed On this the accused said that she may give a statement to the police, therefore, she should also be killed and, therefore, they killed her also. Accused threatened the villagers that they should not report the matter to the police, but in the morning when the complainant went to the police station he found [ENTITY] already in the police station who told the police that he has killed both [ENTITY] and [ENTITY]. He (complainant) also wanted to give the details but the police said that only one report of each incident is taken. His statement coupled with the statement of [ENTITY]. [ENTITY] and [ENTITY] was recorded by the police and they told the whole story but they later on found that police has only submitted charge sheet against [ENTITY] and the other accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] who had assisted [ENTITY] in committing murder had been made witnesses, hence the complaint is filed. The learned Magistrate recorded the statements of complainant, [ENTITY], [ENTITY], [ENTITY] and Dr. [ENTITY] and found that there was sufficient evidence to proceed against [ENTITY], [ENTITY], [ENTITY] and [ENTITY] for offence under [SECTION] read with [SECTION] [ACT] and, therefore, he took cognizance against these persons for the aforesaid offence. Regarding [ENTITY] he mentioned that a trial is already proceeding against him and he has been already committed to Sessions in the case. All the four accused filed revision petition against this order but the same was dismissed. They thereafter filed a miscellaneous petition before this court and submitted that cognizance had been taken in contravention of [SECTION] [ACT]. This petition was also dismissed vide order dated May 12, 1986. [ENTITY], complainant, also thereafter filed a revision petition before the learned Addl. Sessions Judge and submitted that case should also proceed against the accused [ENTITY] and the learned Additional Sessions Judge directed the Judicial Magistrate to proceed against [ENTITY] also. It is against this order that this revision has been filed.
3. It is contended by the learned Counsel for the petitioner that the impugned order virtually amounts to a review of the earlier order because when the learned Magistrate took cognizance against [ENTITY], [ENTITY] and [ENTITY] for offence under [SECTION] read with [SECTION], [ACT] cognizance was taken against [ENTITY] petitioner and the four accused had filed the revision petition where one of the grounds taken was that cognizance should have also been taken against [ENTITY] and it makes no difference whether challan has been filed against him earlier or not and the learned Additional Sessions Judge had dismissed the revision. Thus the present impugned order virtually amounts to review which is not permissible under the law. Reliance was placed on [PRECEDENT]; [PRECEDENT]; and [PRECEDENT] . It was then contended that cognizance cannot be taken twice against the offender and since once the cognizance was taken on police report it could not be again taken on the complaint. It is submitted that the evidence in the police challan is virtually diametrical opposite to the evidence which is now sought to be brought against the accused petitioner and taking cognizance on the basis of this evidence would amount to total jeopardise in as much as the accused will have to face two trials for same occurrence. Reliance has been placed on [PRECEDENT] and [PRECEDENT]. It is, therefore, submitted that the impugned order should be set aside and the proceedings be quashed qua the petitioner started in pursuance of the impugned order.
4. Learned Counsel for the complainant submitted that this is an unfortunate case where the accused [ENTITY] has with the assistance of the police officers invented a new story and the accused persons had been made witnesses against him so that in the evidence they could side with him and he could be acquitted of the double murder. It is submitted that two persons lost their lives at the hands of five accused and these five putting their heads together had now found out a device with the assistance of the police so that atleast four of them could escape the punishment. On the basis of such a conspired investigation if cognizance had been taken by the court it would not deprive the complainant to bring the true story before the court and the court in no way can be said to be helpless in doing real justice. It is submitted that it is not a case of twice taking cognizance of the same offence to test a case of placing true facts before the court as against the manipulated one earlier Learned Counsel has placed reliance on [PRECEDENT]. ; [PRECEDENT]. ; and [ENTITY] and Ors. v. The State and Anr. 1986 (11) RCr.C 394.
5. I have given my earnest consideration to the rival contentions and have gone through the case law cited.
6. Coming to the first point raised by the learned Counsel for the petitioner that no review or recall is permissible to judge whether the present case is the review of the earlier order, it would be relevant to go into the facts of the earlier revision petitions. The learned Magistrate vide order, dated January 21, 1986, had taken cognizance of the offence under [SECTION] read with [SECTION] [ACT] against four accused persons and regarding the present accused petitioner he had mentioned that police had already filed the charge sheet against him on which the accused had been committed to the court of Sessions. The order of cognizance was challenged by the four accused in the court of Addl. Sessions Judge No. 1, Bharatpur where it was contended by learned Counsel that cognizance could not have been taken against the accused because the matter has once been investigated and charge sheet against [ENTITY] had been filed. It was contended that the order taking cognizance of offence was in contravention of [SECTION] [ACT] and proper procedure had not been followed by the learned Magistrate. He could have ordered further investigation into the case rather than taking the cognizance. It was not the subject matter of controversy in the case that cognizance should also be taken against [ENTITY]. It was only an argument made to substantiate the argument regarding application of [SECTION] [ACT]. The revision petition was filed by four accused for the purposes of quashing the order of cognizance dated January 21, 1986. Against this revision all the four persons came in an application under [SECTION] [ACT] before this court and here again the contention of the learned Counsel for the petitioner was about erroneous taking of cognizance against four accused persons and and not following the proper procedure. This court vide its judgment dated May 12, 1986 dismissed the petition and held that the provisions of [SECTION] [ACT] were not attracted and further that [SECTION] are not independent of Sub-section (I) [ACT]. It was further held that the complaint was filed neither for the investigating by the police in relation to the offence which was the subject matter of the complaint nor the case was pending before the Magistrate and had been committed to Sessions Judge, the Magistrate did not commit any illegality in taking the cognizance. In fact the present petition as well as the earlier petition both arose from the same order of the learned Magistrate, dated January 21, 1986. The earlier revision petition was filed by four accused persons against whom cognizance was taken while the present petition was filed by the complainant against that part of the order where cognizance was refused against [ENTITY] and therefore, it cannot be said that this point has also been decided in the earlier petition. The complainant had a right to file a revision petition within the period of limitation and it did so. It is a different matter that the revision petition filed by the accused persons came to be decided immediately after filing and both could not be tagged together. It would have been better if the revisional court would have waited till the period of limitation expired to see whether the revision is also filed against that part of the order in which the cognizance had been refused, but that not having been done yet the complainant cannot be deprived of his right in challenging the order passed by the learned Magistrate. In [PRECEDENT]. (supra) three cases were disposed of by the same judgment which were dismissed summarily before admission on October 19, 1983 as none appeared in the cases. Applications had been filed for re-calling of the order of dismissal. The cause for dismissing the applications summarily was that none had appeared and the learned court by itself looked into the petition and dismissed all the three on merits. Learned Counsel for the parties had the notice of the applications, since all the petitions had been shown in the cause-list of the respective date with the name of the counsel appearing therein. The High Court, therefore looked into the petitions itself and dismissed them on merits. It was against this that applications were filed for re-calling the orders and his Lordship dismissed the applications holding that "All the three applications were mentioned in the cause list. Names of the counsel were also printed. Neither any adjournment slip was received nor any mention was made as is usual practice here. The list was revised. The court had the only option to proceed with the case of its own and it has exercised its mind and dismissed their cases when that is position [SECTION] [ACT] would be a complete bar to the alteration of that judgment or reviewing it. Any provision also providing for review or re-call of the order does not exist". This case has no application to the facts of the present case and is wholly inapplicable. In [PRECEDENT] (supra) against an order passed by the Sub-Judge a revision petition was filed in the High Court which was dismissed and the order of the Sub-Judge was upheld. Thereafter in some other case a particular view was taken by the Supreme Court and, therefore, in view of the decision of their lordship of the Supreme Court an application was again moved before the Sub-Judge who rejected the same and a second revision petition before the High Court was filed against this second order which was allowed. It is in these circumstances that their Lordships of the Supreme Court held that the second judgment in revision was clearly not maintainable as it amounted to a review of previous judgment. However, the Supreme Court refused to interfere with the judgment of the High Court on a different point. In this case second revision petition was filed by the same person on the same facts and, therefore, their Lordships held it not to be maintainable. In the instant case the second revision is by opposite party which was aggrieved of a part of the order of the learned Magistrate and, therefore, this authority also does not help the petitioner. In [PRECEDENT] (supra) their Lordships decided a bunch of cases where certain partners and proprietor of same Firm were prosecuted before Additi onal Dist. Magistrate (Judicial), Cuttack for offence under [SECTION] of the [ACT]. They were found to be guilty and consolidated fine of Rs. 2000/- was imposed. The accused went in appeal. The learned Sessions Judge found that the sentence was not in accordance with law as minimum sentence of fine of Rs. 1000/- for each offence was prescribed by law, he therefore, made a reference under the law then existing. The High Court accepted the reference and awarded a fine of Rs. 1300/- for each offence. It is pertinent to mention that so far as the Managers and the Managing partners were concerned, the High Court has passed a sentence of six months' rigorous imprisonment, i.e. two months' for each deal. The Firms paid up their fines but the Managers and the Managing partners against whom substantive sentence of imprisonment was awarded filed criminal miscellaneous petitions for reviewing the order. The High Court reviewed and re-called its previous judgment and altered the order of substantive sentence into fine. It was against this order that the State of Orissa filed an appeal after grant of certificate, that their Lordships of the Supreme Court held that the decision was clearly erroneous and the High Court has no jurisdiction to review and the provisions of [SECTION] of then [ACT] cannot be invoked for exercise of a power which is specifically prohibited by the Code. Thus the facts of this case are also totally distinguishable and do not apply in the circumstances of this case.
7. In the present case as mentioned above, both the parties were aggrieved by the same order of the learned Magistrate and each of them for the revision petitions which have been separately decided. Had the point taken by the complainant been raised and decided in the earlier petition possibly there was a scope for arguments that it would amount to review. But neither [ENTITY] was party to those proceedings nor the point has been raised specifically in the earlier revision petition, therefore, the argument of the learned Counsel for the petitioner on this count has no force.
8. Coming to the second point that cognizance cannot be taken for the second time it would be worth while to mention that this case presents typical circumstances where it would be too risky and venturesome to comment anything on this stage. The accused petitioner [ENTITY] himself went to the police station and lodged a report admitting his guilt and disclosed the names of four persons as witnesses. The complainant came with a case that in this double murder there were five accused and they conspired together to make out a story and one of them confessed the guilt making four other witnesses thereby four persons have been saved and the police believed the story given by the four accused persons and did not even interrogate the real witnesses. Thus the complainant came with a case that conveniently four accused have been saved from the case and, therefore, when the complainant has filed a complaint and if cognizance on this has been taken it cannot be quashed saying it to be a second cognizance. In the two cases cited by the learned Counsel for the petitioner the position is absolutely different. In [PRECEDENT] (supra) their Lordships were considering a case where cognizance had been taken on a complaint after recording the statement of the witnesses and police also in the same circumstances submitted a charge-sheet. It was he that cognizance had already been taken by the Magistrate before he made the order, there was no scope of cognizance being taken afresh of the same offence after the police officials' report was received The main controversy in the case was about following the procedure and the Court therefore, held that there was no escape from the conclusion that case was instituted on private persons complaint and not on the police report submitted earlier. In that case there was no conflict of interest and the facts in the complaint and the police report were not diametrical opposite. In respect of the case cited in [PRECEDENT] it is difficult to appreciate as the facts of that case have not been reproduced in Nearest case to the present case is the decision of their Lordships of the Supreme Court reported in [PRECEDENT]. The question in that case however, was different. The question raised as to whether it was permissible to club and consolidate the case of police challan and a case of complaint where the prosecution version in the police challan case and the complaint case are materially different, contrary and mutually exclusive. Their Lordships held that they cannot be clubbed. But their Lordships however, directed both the trials to go simultaneously and dispose of the two cases by two separate judgments wherein their Lordships relied on an earlier decision of the Supreme Court reported in [PRECEDENT]. which was a case where there were two counter case exclusively triable by the Sessions Court and their Lordships held that they should be tried separately but by the same court. The ratio in the above judgment reported in [PRECEDENT]. (supra) is that where the facts in police challan case and complaint case are materially different, contrary and materially exclusive, both can be tried but simultaneously. In the instant case also the facts alleged are materially exclusive and contrary and the evidence in one would negative the story in the another case.
9. In these circumstances I see no error when the learned revisional court directied to proceed against [ENTITY] also. The revision petition has no force and is dismissed.