The Supreme Court has refused to interfere with a Sessions Court Order which had taken cognizance of new offences and added new Accused under section 193 of Code of Criminal Procedure, though the Magistrate rejected the prayer at Committal Stage.
Appellants are parents of a person who was accused of instigating his wife to suicide and was charge sheeted under Section 306 IPC. The complainants had filed an application before the Magistrate Court for taking cognizance against the appellants and their son under Sections 304-B and 498-A IPC. The Magistrate Court rejected their applications and committed the case to Sessions Court, where they again preferred the application. This application was allowed by the Sessions Court, and the High Court upon revision, refused to interfere. The appellants hence approached the Apex Court.
Referring to Dharam Pal & Ors. v. State of Haryana, the court observed that , since the Court of Session is acting as the Court of original jurisdiction under Section 193 of the Code, after the committal of proceedings to it by the Magistrate, it is empowered to take cognizance and issue summons and it cannot be treated as taking second cognizance of the same offence.
Applying the law the Court held as follows;
Here is a case where the Police report which was submitted to the Magistrate, the IO had not included the appellants as accused persons. The complainant had filed application before the learned Magistrate with prayer to take cognizance against the appellants as well. This application was duly considered and rejected by the learned Magistrate. The situation in this case is, thus, not where the investigation report/chargesheet filed under Section 173(8) of the Code implicated the appellants and appellants contended that they are wrongly implicated. On the contrary, the Police itself had mentioned in its final report that case against the appellants had not been made out. This was objected to by the complainant who wanted the Magistrate to summon these appellants as well and for this purpose the application was filed by the complainant under Section 190 of the Code. The appellants had replied to the said application and after hearing the arguments, the application was rejected by the Magistrate. This shows that order of the Magistrate was passed with due application of mind whereby he refused to take cognizance of the alleged offence against the appellants and confined it only to the son of the appellants. This order was not challenged. Normally, in such a case, it cannot be said that the Magistrate had played 'passive role' while committing the case to the Court of Sessions. He had, thus, taken cognizance after due application of mind and playing an “active role” in the process. The position would have been different if the Magistrate had simply forwarded the application of the complainant to the Court of Sessions while committing the case. In this scenario, we are of the opinion that it would be a case where Magistrate had taken the cognizance of the offence. Notwithstanding the same, the Sessions Court on the similar application made by the complainant before it, took cognizance thereupon. Normally, such a course of action would not be permissible.
Refusing to interfere with the order of Sessions Court, the Court observed
“We find that the order of the Magistrate refusing to take cognizance against the appellants is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions was, thus, not powerless to pass an order in his revisionary jurisdiction. Things would have been different had he passed the impugned order taking cognizance of the offence against the appellants, without affording any opportunity to them, since with the order that was passed by the learned Magistrate a valuable right had accrued in favour of these appellants. However, in the instant case, we find that a proper opportunity was given to the appellants herein who had filed reply to the application of the complainant and the Sessions Court had also heard their argument.”
Read the Judgment here.