Crl.Rev.No.66 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Rev.No.66 of 2009 Date of Decision: 23.3.2009 Dalbir Singh Mor and others .....Petitioners Vs. C.B.I., New Delhi ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Bhoop Singh, Advocate for the petitioners. Mr. Ajay Kaushik, Advocate for the respondent. .... RAJIVE BHALLA, J (Oral) The petitioners lay challenge to an order dated 2.12.2008, passed by Additional Sessions Judge-I,/Special Judge (CBI), Ambala, directing the filing of the final report before the Court of Special Judicial Magistrate (CBI) Haryana, Ambala, as it was wrongly filed before his Court. Counsel for the petitioners submits that the C.B.I., presented a final report, before the Special Judge, CBI, namely the Additional Sessions Judge-I/Special Judge (CBI), Ambala. Vide order dated 10.1.2007, the said court took cognizance and issued notices calling upon the petitioners to appear on 10.3.2007. Upon appearance the petitioners brought it to the notice of the court that as the case had not been committed to it by a Magistrate, it had erred in taking cognizance. It was, therefore, prayed that the petitioners be discharged. The Additional Sessions Judge, instead of Crl.Rev.No.66 of 2009 2 discharging the petitioners returned the final report to the C.B.I. for presentation before the Magistrate. It is argued that by issuing notices to the petitioners, the Additional Sessions Judge-I/Special Judge (CBI) Ambala, had taken cognizance. The only course available to him was to either discharge the petitioners or to frame charges. However, by returning the final report and directing its filing before the Special Judicial Magistrate, the Additional Sessions Judge-I,/Special Judge (CBI), Ambala, exercised the power of review, a power unavailable to a criminal court. Reliance for the argument that a criminal court cannot recall an order summoning an accused is placed upon a judgement of the Hon'ble Supreme Court, reported as Adalat Prasad V. Rooplal Jindal and others, AIR 2004 S.C. 4674. Counsel for the C.B.I., on the other hand submits, that the petitioners were merely summoned by the Additional Sessions Judge- I/Special Judge, (CBI), Ambala, so as to enable it to take cognizance of the offences. A notice, requiring an accused to appear before a court cannot be equated with cognizance of an offence. It is argued that before the Court of Sessions could take cognizance, the petitioners brought it to his notice, that the final report had been placed before it, without committal by a Magistrate. The Additional Sessions Judge-I/Special Judge (CBI), Ambala, therefore, rightly directed that the final report be placed before the Special Judicial Magistrate, CBI, Haryana, Ambala, for proceedings in accordance with law. I have heard learned counsel for the parties and perused the impugned order. The argument that underlines the petitioners' prayer for Crl.Rev.No.66 of 2009 3 discharge is that by calling upon the petitioners to appear before him, the Additional Sessions Judge has taken cognizance and, thereafter could not return the final report. The premise that underlines this argument is based upon a flawed interpretation of the provisions of the Code namely as to nature of cognizance. Section 193 of the Code titled “Cognizance of offences by Court of Sessions” clearly postulates that cognizance is taken of an offence and not of the accused. The accused were called upon to appear, so as to enable the Court to take cognizance of the offences set out in the final report. The notice calling upon the accused to enter appearance cannot be equated with cognizance of an offence. In the instant case, the C.B.I. committed an error in directly presenting the final report before the Additional Sessions Judge-I/Special Judge (CBI) Ambala. The court issued notices requiring the petitioners to appear before him but before he could take cognizance of the offences, it was brought to his notice, by the petitioners, that the matter had not been committed by a Magistrate. The Additional Sessions Judge, promptly directed the prosecution to file the final report before the Magistrate. The course adopted by the learned Court below does not suffer from any legal infirmity. The argument by counsel for the petitioners that the Additional Sessions Judge-I/Special Judge (CBI) Ambala had no jurisdiction to review, the order dated 10.1.2007, summoning the petitioners cannot be accepted. The court below did not review or recall any order but has merely set right a procedural error made by the prosecution, prior to cognizance. The judgement in Adalat Prasad's case (supra) would, therefore, not aid the petitioners cause. The Additional Sessions Judge, rightly directed the C.B.I. to present the final report before the Special Judicial Magistrate, CBI. Crl.Rev.No.66 of 2009 4 I find no error in the course adopted, as would require interference. In view of what has been stated herein above, the present petition is dismissed. The Director, C.B.I. is directed to institute an enquiry into the circumstances, that led to presentation of the final report directly before Additional Sessions Judge-I,/Special Judge (CBI), Ambala. In case dereliction of duty is determined, on the part of any officer, action shall be initiated in accordance with law. 23.3.2009 (RAJIVE BHALLA) GS JUDGE