Magistrate Not Barred To Take Cognizance For Second Time For Different Offences If Prima Facie Case Established: Orissa High Court

The Orissa High Court has held that a Magistrate, even after taking cognizance for certain offences on the basis of charge-sheet filed by investigating agency, is not barred from taking cognizance again for some other serious offences, if prima facie case is established by means of sufficient materials.Clarifying the position of law regarding validity of a second cognizance, the Single Bench of Justice Sibo Sankar Mishra held –“...the law is well-settled that a Magistrate is not precluded from taking cognizance on a complaint even after accepting a final report, provided there is prima facie material to support the allegations. The Supreme Court's pronouncement in Zunaid v. State of U.P. (supra) clearly establishes this principle, and the mere fact that an earlier cognizance was taken under different sections does not automatically bar subsequent cognizance under more serious provisions if supported by material.”Case Background The case revolved around the suspicious death of an Assistant Conservator of Forests (ACF) Soumya Ranjan Mohapatra ('the deceased') on July 12, 2021 in his official residence at Paralakhemundi. As per the version of the petitioner (wife of the deceased), the deceased received fatal burn injuries while burning certain scrap items using kerosene. However, the informant (father of the deceased) smelled a foul play in the death of the deceased, who alleged that the petitioner had extra-marital affair with the then District Forest Officer (DFO). It was his further allegation that the petitioner, in collusion and conspiracy with the DFO and a cook, committed the murder of the deceased.A Special Investigation Team (SIT) of the CID, CB conducted investigation in the case and filed a charge-sheet against the three accused persons under Sections 285 and 304-A of the IPC. On the basis of such charge-sheet, the SDJM took cognizance under the aforesaid provisions. However, the informant filed a 'protest petition' show-casing his dissatisfaction over investigation.Along with the protest petition, he enclosed supplementary materials, including witness affidavits, medical reports and photographs of the crime-scene, and prayed for either further investigation under Section 173(8) CrPC or for independent cognizance of offences under Section 302 read with Section 120-B IPC.Upon consideration of materials, the SDJM treated the protest petition as 'complaint' as defined under Section 2(d) of the CrPC. He invoked the procedure under Sections 200 and 202 CrPC, recorded preliminary satisfaction that a prima facie case of murder and conspiracy was made out. Accordingly, he took cognizance under Sections 302 and 120-B against the petitioner and other two co-accused. The petitioner, by filing a petition under Section 482, CrPC, challenged the second cognizance order and issuance of process.Contentions of PartiesIt was the vehement argument of the petitioner that the Magistrate erred firstly, in treating the protest petition as a complaint under Section 200, CrPC and secondly, in taking cognizance straightaway without ordering further investigation or referring the matter to the police, which is also in violation of Rule 20 of the General Rules and Circular Orders (Criminal) [Volume-I] ('GRCO').It also questioned the action of Magistrate in registering a second criminal proceeding by way of taking cognizance of new offences from a protest petition designed as complaint. It was contended that taking cognizance for the second time in the same case involving same set of facts amounts to double jeopardy.The informant, on the other hand, argued that the Magistrate adopted the appropriate course of action by taking cognizance on the basis of the protest petition, since such petition included witness list, clearly stating the allegations, and pointing out un-investigated evidence.No bar against “subsequent cognizance”The primary question which arose for consideration was whether the Magistrate was justified in taking subsequent cognizance under Sections 302 and 120-B of IPC when he had already taken cognizance under Sections 285 and 304-A on the basis of charge-sheet.After examining the facts against the backdrop of relevant laws, the Court was of the opinion that a Magistrate is not debarred from taking cognizance on a complaint even after accepting a final report, provided there is prima facie material to support the allegations. Justice Mishra relied upon the authoritative ruling of the Apex Court in Zunaid v. State of U.P. & Ors., 2023 LiveLaw (SC) 730 to substantiate the stand of law.“The learned court below have also recorded that there is “sufficient material” on record to proceed against the accused person as prima facie case is well made out U/s.302 and 120-B of the IPC. Therefore, it can't be said that the Trial Court has not applied its judicial mind while taking cognizance of offence. In the light of the aforementioned, the cognizance order can't be questioned as law in the matters is no more res integra,” ...

Magistrate Not Barred To Take Cognizance For Second Time For Different Offences If Prima Facie Case Established: Orissa High Court

Jyoti Prakash Dutta

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