1 S.B. Criminal Misc. Petition No.696/2010. (Shanker Ram & Others Vs. State of Rajasthan & Another) DATE OF ORDER : August 16th, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. R.S. Choudhary for the petitioners. Mr. J.S. Choudhary for the respondent. Mr. Ashok Prajapat, P.P. Reportable In this petition filed under Section 482, Cr.P.C., judgment dated 30.04.2010 passed by learned Sessions Judge, Merta in Criminal Revision No.8/2010 is under challenge, whereby, the learned revisional Court dismissed the revision petition filed by the petitioners and upheld the order dated 07.06.2010 passed by Addl. Chief Judl. Magistrate, Merta in Criminal Case No.19/2010, by which, the said Court took cognizance against the petitioners for offences under Sections 147, 148, 447, 323, 324, 325 and 302/149, I.P.C. upon application filed by the complainant under Section 190(1)(b) of the Code of Criminal Procedure. As per facts, in brief, an FIR was registered at police station Merta City on 03.09.2009, in which, an allegation was made by the complainant Gangaram that he and his brother Ram Niwas and Ganesha Ram went in the morning 2 to their agricultural field. When they reached at the field situated in khasra No.710 accused Pappuram, Ram Niwas s/o Bhanwaru Ram and Sharda came on a tractor at the spot. They were having with them lathi, kulhari (axe) and iron rod and, after reaching at the spot, upon their shouts accused Dhanna Ram, Teja Ram, Shrawan Ram, Shanker Ram and Shanti also came at the spot and gave severe beating to the complainant party. In the FIR, specific allegation was levelled against Dhannaram for having struck with iron rod on the head of Ram Niwas (brother of the complainant), against accused Tejaram for inflicting injury with axe upon the person of the mother of the complainant and, thereafter, he hit axe blow on the head of the brother of the complainant, upon which, his brother Ram Niwas fell down and Dhanna Ram immediately sat in the tractor and crushed his brother Ram Niwas under the wheels of the tractor 3 – 4 times. Likewise, Pappu Ram, Ganesha Ram, Shrawan, Sharda, Indra and Jimni also assaulted and beat wife of the complainant. Against accused Shanker Ram, it is stated that he gave beating with lathi when complainant's brother Ram Niwas fell down on the ground which resulted into his death. After investigation, the police filed challan against 3 Dhanna Ram, Shrawan Ram, Pappu Ram, Shanti, Sharda Ram Niwas s/o Bhanwaroo Ram and Teja Ram but no challan was filed against Shanker Ram, Jimni and Indra. Just after filing challan, an application was filed by the complainant under Section 190(1)(b), Cr.P.C. for taking cognizance on the basis of challan papers against Indra w/o Sharwan Ram, Jimnai w/o Shanker Ram and Shanker Ram. It was prayed in the said application that there is evidence on record and case is made out against these accused also for taking cognizance of the offences against them too, therefore, against these three persons also cognizance may be taken. In support of the application, learned counsel for the complainant invited attention of the Court towards judgment of the Supreme Court, reported in 2005 (1) Apex Court Judgment 103 (SC), Gangadhar Janardhan Mahatre Vs. State of Maharashtra and 2005 (1) Cr. L.R. (Raj.) 857, Krishnalal Vs. State of Rajasthan and submitted that cognizance may be taken against the above three persons. The trial Court while following the judgment of Hon'ble Supreme Court, reported in 2001 (6) SCC 670, Swail India Ltd. Vs. State of Delhi and 2001 (8) SCC 522, Rajendra Prasad Vs. Bashir & Others and AIR 1967 SC 1167, Khubram Dubey Vs. State of Bihar took cognizance 4 in exercise of power under Section 190(1)(b), Cr.P.C. and issued warrant of arrest against all the above three accused persons. Said order was challenged by way of filing revision petition but the revisional Court also gave opinion that cognizance taken by the trial Court upon application under Section 190 (1)(b), Cr.P.C. does not require any interference and upheld the order passed by the trial Court. In the present petition under Section 482, Cr.P.C., the petitioners are challenging both the aforesaid orders. Contention of learned counsel appearing on behalf of the petitioners while challenging both the orders is, firstly, on the ground that there is no jurisdiction vesting in the Magistrate to take cognizance for offences triable by a Court of Sessions while exercising 190 (1)(b), Cr.P.C. Learned counsel for the petitioners vehemently contended that in respect of those accused against whom the police have not filed challan after investigation, cognizance can only be taken against them by the Sessions Court and, that too, after recording evidence of prosecution witnesses if it is found that there is material evidence against them to proceed against additional accused, then, while exercising power under Section 319, Cr.P.C. such cogniance may be taken by the Court of Sessions only. Therefore, at the 5 time of filing challan while exercising power under Section 190(1)(b), Cr.P.C. taking cognizance by the Magistrate is totally without jurisdiction. Learned counsel for the petitioners argued that upon perusal of the order of cognizance it goes to show that in respect of offences for which the committing Magistrate took cognizance are purely triable by Court of Sessions, therefore, the order of the Magistrate, so also, order passed by the revisional Court upholding the order passed by the Magistrate deserve to be quashed and set aside. Learned counsel for the petitioners submits that though there is power left with the Magistrate to take cognizance in the matter where the police have not filed charge-sheet against some of the accused persons but this power can be exercised only in cases triable by the Magistrate but in respect of offences which are exclusively triable by a Court of Sessions, the committing Magistrate has no power to take cognizance upon application filed under Section 190 (1)(b), Cr.P.C. Therefore, the petitioners do not question the power of the Magistrate to take cognizance under Section 190(1)(b), Cr.P.C. but that power can only be exercised in respect of offences triable by the Magistrate. It is further contended by learned counsel for the petitioners that in the case of filing challan for offences 6 triable by a Court of Sessions, the work of the Magistrate is only to commit the case after filing challan to the Sessions Court. In this regard, the functioning of the Magistrate is only to receive the challan and commit the case for trial to the Sessions Court and he cannot apply his mind to determine any issue raised or to adjudge anyone guilty or not or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate is only to see that the papers being sent to the Sessions Court or in order or not. As per learned counsel for the petitioners, the learned Magistrate committed gross error while ignoring the thorough investigation made by the police in this case and the resultant finding that petitioners are not involved in the matter. There is no allegation against the petitioners with regard to committing any offence and, as such, the learned Magistrate was required to follow the procedure laid down in Sections 307, 208 and 209, Cr.P.C. and sent the case to the Sessions Court; but, while ignoring the procedure pescribed, the Magistrate sat to exercise power under Section 190(1)(b), Cr.P.C. in respect of offences triable by a Court of Sessions at the stage of committal in complete disregard of the provisions of law. Lastly, learned counsel for the petitioners invited attention of the Court towards the following judgments : 7 (1) AIR 2000 S.C. 3725, Kishori Singh Vs. State of Bihar. (2) 2001 Cr.L.R. (Raj.) 364, Sukhdas & Others Vs. State of Rajasthan. (3) 1997 Cr.L.R. 9SC) 92, Rajkishor Prasad Vs. State of Bihar. (4) 1998 (7) SCC 149, Ranjeet Singh Vs. State of Punjab (5) 2010 (1) Cr.L.R. (Raj.) 40, Prahlad Singh Vs. State of Rajasthan. (6) 2005(2) Cr.L.R. (Raj.) 1118, Laamudeen & others Vs. State of Rajasthan. (7) 2002 (1)WLN 34, Hindu Ram Vs. State of Rajasthan. While inviting attention towards the above judgments, learned counsel for the petitioners submits that both the orders impugned deserve to be quashed, therefore, the same may be quashed and set aside. Per contra, learned counsel for the complainant vehemently argued that for adjudicating the controversy involved in this case, provision of Section 190 of the Code of Criminal Procedure is required to be seen. It is submitted by learned counsel for the complainant that for taking cognizance against those accused who were left out by the police the committing Magistrate is having the jurisdiction to take cognizance at the stage of receiving the challan papers and the said power is provided under Section 190(1)(b) of the Code of Criminal Procedure. As per learned counsel for the complainant for taking 8 cognizance there are two stages, one, upon receiving the police report of such facts and, second, at the stage the power is exercised under Section 319 of the Criminal Procedure Code. It is specifically argued by learned counsel for the complainant that language used by the Legislature in Section 190 of the Criminal Procedure Code for taking cognizance by the Magistrate does not cast any bar or restriction upon the power of the Magistrate from taking cognizance of offences even triable by Court of Sessions. The power for taking cognizance at the initial stage is at the time of filing of challan even against those whom the police have left out and there is material against them to proceed, therefore, if it is found by the Magistrate upon perusal of the police report that challan has not been filed against certain persons, then, it is always open for the Magistrate to take cognizance on the basis of suspicion whether the offences are triable by Magistrate or a Court of Sessions. In support of his contention, learned counsel for the complainant invited my attention towards judgment of Hon'ble Supreme Court in Raghuvansh Dubey's case, reported in AIR 1964 S.C. 1167 and submits that bare perusal of the said judgment will reveal that cognizance is 9 taken by the Magistrate of the offence and not the offender. The Magistrate has to proceed against those offenders who have not been sent up by the police and, therefore, summoning of the additional accused is part of the proceedings of taking cognizance. In this case also, the learned Magistrate took cognizance of offence against those accused who were not sent up by the police. Therefore, it is process of taking cognizance of the offence and as such the power of the Magistrate under Section 190 of the Criminal Procedure Code cannot be question on the ground that the Magistrate took cognizance of offences which were triable by Sessions Court. Learned counsel for the complainant placed reliance upon judgments reported in, (1) 2002 Cr.L.R. (SC) 9, (2) (2006) 1 SCC 273, and (3) 2002 (4) RLW 2035, and submitted that the Magistrate has rightly exercised his power and took cognizance of offences against hose offenders who were left out by the police though there was material against them to proceed. Therefore, there is no illegality in the order passed by the Magistrate and, so also, impugned order passed by the revisional Court upholding the order of taking cognizance. The learned 10 Courts below rightly rejected the plea of the petitioners that Magistrate cannot take cognizance for the offences triable by the Sessions Court and stage of taking cognizance comes after recording statement of the prosecution witnesses in the trial under Section 319, Cr.P.C. I have considered the rival submissions made by both the parties and perused the pleadings, relevant provisions of law and judgments cited by counsel appearing on behalf of both the sides. First of all, it is in the fitness of things to re-produce the provisions of Section 190 of the Criminal Procedure Code which reads as follows : “190. Cognizance of offence by Magistrate.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section(1) of such offences as are within his competence to inquire 11 into or try.” Upon perusal of the above section, it is abundantly clear that there is power left to the Magistrate to take cognizance upon police report as per Section 190(1)(b). Bare perusal of the above provisions shows that no such restriction is imposed by the Legislature that the Magistrate can take cognizance only for the offences triable by a magisterial Court and not in respect of offences triable by a Court of Sessions. Further, upon perusal of the provisions of Criminal Procedure Code, it reveals that there are two states for taking cognizance. First, at the initial stage when challan papers are presented before the Court under Section 173 and, at that stage, the Magistrate is exercising power to take cognizance of offence; and, second stage comes when FIR is filed against certain persons and upon assessment of the evidence collected by the investigating officer it is found that no sufficient evidence is on record, upon which, the accused is likely to be convicted, then, in that event, the stage comes during trial after recording statements of the prosecution witnesses and Sessions Judge in the trial can take cognizance while exercising power under Section 319, Cr.P.C.; meaning thereby, the question of taking cognizance by the Magistrate is always in existence and in 12 the language used in Section 190, Cr.P.C. there is no restriction upon the Magistrate so as not to take cognizance in respect of those accused persons who were not charge-sheeted by the police and offences are triable by the Court of Sessions. After filing challan under Section 173, Cr.P.C. if the offence is triable by Sessions Court, then, the Magistrate is required to commit the case to the Sessions Court for the purpose of trial. In the judgment rendered by co-ordinate Bench of this Court in the case of Sukhdas & Others Vs. State of Rajasthan, reported in 2001 Cr.L.R. (Raj.) 364, it has been held after considering various judgments of Supreme Court that where the police submits charge-sheet against some of the accused persons, the Magistrate cannot proceed against the remaining accused persons. But, this bar cannot be applied where the police submits total negative report. There is power left to the Magistrate to take cognizance of offence upon the police report under Section 190(1)(b), Cr.P.C. but that power can be exercised in the event of total negative report by the police; but, after investigation, if the police file charge- sheet against some accused persons, then, it is not open for the Magistrate to apply its mind for taking cognizance against remaining accused persons because that 13 adjudication is required to be made in the trial at the stage of 319, Cr.P.C. Para 53 and 54 of the said judgment run as under : “53. Thus, the two categories of cases, one being where the police submits a total negative report (Adam Vakua and/or Adam Pata), and the other category of cases where the police submits charge-sheet against some of the accused persons while gives a final regative report against some of the accused persons, do stand on a different footings and the power of the Magistrate so also the bar against the power of the Magistrate available or applicable to one category of cases cannot be applied to the other category of cases where the offence being the one4 exclusively triable by the Court of Sessions. And consequently it is held that though in case where the police submits charge-sheet against some of the accused persons, the Magistrate cannot proceed against the remaining accused persons, this bar cannot be applied to cases where the police submits a total negative report, so as to deprive the learned Magistrate of the power of taking cognizance. Likewise since the learned Magistrate has the power of taking cognizance in cases where police submits a total negative final report, the Magistrate cannot be held to have power to proceed against the remaining accused persons where police submits charge-sheet against some of the accused persons, by invoking the principle that qua left out accused persons, the police report tantamounts to giving of final negative report. 54. In this view of the matter, in my view the cases cited by Mr. Garg do not help him and the situation is more aptly covered by the set of decision of Hon'ble Supreme Court led by Abhinandan Jha's case referred by me above, according to which the learned Magistrate was right in taking cognizance as done by the 14 impugned order, as the present is a case where a total negative report Adam Vakua has been submitted by the police.” I have examined the present case with the view taken by the co-ordinate Bench of this Court in Sukhdas's case (supra). In this case, FIR was filed against so many persons but, after investigation, on the basis of material collected in the investigation, challan was filed against seven persons while leaving out three persons, the present petitioners. In my opinion, when there is no specific bar under Section 190 of the Criminal Procedure Code upon taking cognizance by the Magistrate for offence triable by Sessions Court, it cannot be said that Magistrate has no power to take cognizance. In this view of the matter, I am in full agreement with the proposition laid down by the co- ordinate Bench in the case of Sukhdas & Others Vs. State of Rajasthan (supra) that jurisdiction of the Magistrate to take cognizance is barred where the police submits charge-sheet against some of the accused persons but, this bar will not come in the way of the power of the Magistrate to take cognizance if the police submits total negative report. Further, the essence of the above discussion 15 is that there are two stages for taking cognizance at the initial stage and, during trial. The first stage left with the Magistrate is under Section 190, Cr.P.C. At that stage, if the offence is triable by the Sessions Court and police have filed charge-sheet against some of the accused persons, then, the Magistrate is functioning as committing Court and assessing challan filed under Section 173, Cr.P.C. and it is not open for the Magistrate to take cognizance against additional accused persons and the Magistrate is required to commit the case to Sessions Court; but, this restriction does not come in way of the Magistrate for taking cognizance if the police submits total negative report in the case because at that stage the Magistrate is examining the police report under Section 190(1)(b), Cr.P.C. even if the case is triable by Sessions Court because if such restriction will be imposed then the complainant will become remediless for the offence triable by the Sessions Court. Further, in the event of filing challan against some persons for the offences triable by Sessions Court, then, for taking cognizance against additional persons the power can be exercised by the Sessions Court after committal of 16 the case and, during trial, if evidence comes on record for proceeding against additional accused, then, the trial Court can take cognizance under Section 319, Cr.P.C. It is also made clear that the power of taking cognizance for the offences triable by the Magistrate, the Magistrate can exercise its jurisdiction at the stage of 190, Cr.P.C. also if the material evidence is available to proceed against such additional accused in the case triable by the Magistrate. As a result, this criminal miscellaneous petition is allowed. Impugned order dated 30.04.2010 passed by the revisional Court in Criminal Revision Petition No.8/2010 and order dated 07.01.2010 passed by Addl. Chief Judl. Magistrate, Merta in Criminal Case No.19/2010 are quashed and set aside. It is made clear that during trial if any offence comes on record in the trial it will be open for the complainant under Section 319, Cr.P.C. to invoke the Court's jurisdiction for taking cognizance against additional accused persons. (Gopal Krishan Vyas) J. Ojha, a.