Case: Sohan Lal and Ors Vs. State of Rajasthan

3. On 21.4.1980 one Shanti Lal lodged a report at Bikaner Police Station stating therein that the appellants and two others namely Uttam Chand and Hanuman Chand at about 2 P.M-that day were pelting stones at the informants house causing damage to it and that Durgabai, Tara and Sunita who at the relevant time were sitting at the chowk of the house were injured. After recording F.I.R. No. 22 dated 21.4. 1980 and on completion of investigation police framed charges under s. 147, 323, 325, 336 and 427 I.P.C. and the charge sheet was forwarded to the Judicial Magistrate No. 2 Bikaner under s. 173 Cr. P.C. After taking cognizance and after hearing the arguments, the Judicial Magistrate, Bikaner by his order dated 3.10.1980 in Criminal Case No. 165 of 1980 had been pleased to discharge the appellants Nos. 4 and 5, namely, Bijya Bai and Jiya Bai of all the charges levelled against them. Appellants Nos. 1, 2 and 3, namely, Sohan Lal, Padam Chand and Vishnu were ordered to be charged only under s. 427 I.P.C. on the basis of site inspection and injury report:4. On 25.2.82 the Assistant Public Prosecutor submitted an application to the Magistrate under s. 216 Cr. P.C. signed by Durga Bai stating:"The accused have been charged under s. 427 I.P.C., whereas from the entire evidence and the medical evidence prima facie case under various sections i.e. 147, 325 and 336 I.P.C. is made out. Hence it is prayed that accused be charged in accordance with the evidence and the charge be amended in the light of the evidence."5. After recording the plea of the accused persons, prosecution led evidence and examined P.W. 1 Shanti Lal, P.W. 2 Sampat Lal, P.W. 3 Chagan Lal on 12.5.82 and P.W. 4 Durga Bai on 8.7.82.6. The learned Magistrate on 8.9.82 after referring to the aforesaid application submitted by A.P.P. dated 25.2.82 and heating the A.P.P. and the learned advocate for the accused and discussing the evidence and observing that if any accused was discharged of any charge under any section then there would be no bar for taking fresh cognizance and reconsideration against him according to s. 2 16 Cr. P.C. and that the provision of s. 319 Cr. P.C. was also clear in that connection, recorded the following ordercognizance for offences under ss. 147, 427, 336, 323,325 I.P.C. is taken against accused Sohan Lal, Padam Chand, Smt. Vijya Bai, Jiya Bai, Vishnu, Hanuman Chand and Uttam Chand. Orders for framing the charges against accused Sohan Lal, Padam Chand, Vishnu under the aforesaid sections are passed and accused Smt. Jiya Bai, Vijya Bai, Uttam Chand and Hanuman Chand be summoned through bailable-warrants in the sum of Rs.500 each. File to come on 20.10.82 for framing the amended charge against the accused present. Exemption from appearance of accused Vishnu Chand and Padam Chand is canceled until further order. The advocate for the accused shall present the said accused in the Court in future.The above order was challenged in the aforesaid two criminal revision petitions in the High Court of Rajasthan and the same were dismissed by the order under appeal. According to the learned Single Judge the question that arose for consideration in those revision petitions was whether a Magistrate was competent to take cognizance of the offence after recording some evidence against the accused persons who had been earlier discharged of those offences. It was urged by the revision petitioners that having once discharged them it was not open to the Magistrate to proceed against them and the only remedy was to go in revision and the Magistrate could not review his own order. The learned Judge dismissed the petitions taking the view that it was not a case of reviewing the order of discharge passed by the Magistrate but was a case of taking cognizance of the offence on the basis of the evidence recorded by the Magistrate himself which was not in any way prohibited in law, and that under the provisions of s. 3 19 Cr. P.C. the Magistrate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier.

Reasoning: 31. The High Court did not subscribe to the view taken in State v. Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9. Therein a chargesheet having been filed against 9 accused persons in his Court the Sub-Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961. Subsequently on 22.8.1961, without any fresh chargesheet or a complaint, Sub-Divisional Magistrate decided to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evidence. On a reference by the Additional District Magistrate, calling into question the procedure followed by the Sub-Divisional Magistrate a single bench of the High Court of Assam and Nagaland on the basis of Section 241-A of the old Code of the Criminal Procedure held that assuming that the discharge order had been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the Sub-Divisional Magistrate. It was observed that as the order passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been discharged, would amount in law to a review of the Judgment of the Magistrate which was not permissible having regard to section 369 of theCode of Criminal Procedure. Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors.32. The High Court in the instant case followed the decision in Saraswatiben v. Thakurlal Hitnatlal & Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on enquiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had discharged under section 251-A (2) Cr. P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio. The same view was taken in Amarjit Singh @ Amba v. The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324.33. The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of s. 319 had to be read in consonance with the provisions of s. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of s. 3 19. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under s. 398 of the Code may not be lost sight of. This should be so because the complainants desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99). The A.P.P. s application under s. 2 16, in so far as the appellants 1 to 3 were concerned could be dealt with under s. 2 16. Appellants 4 & 5 could be dealt with neither under s. 2 16 nor under s. 3 19. In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do.