Rajendra Singh vs State of M.P. and Others

A.P. Shrivastava, J.

This revision is directed against the order passed by Sessions Judge, Morena in Criminal Revision No. 146/2005, dated 7-10-05 allowing the criminal revision filed by non-petitioner Nos. 2 to 5 against the order of Judicial Magistrate First Class, Morena in Criminal Case No. 26/2005, order dated 7-7-2005. In the Trial Court, petitioner moved an application u/s 190 of Cr.PC for taking cognizance against the non-petitioner Nos. 2 to 5. The application was opposed by non-petitioners in the Trial Court and the Trial Court after hearing the parties allow the application filed by the complainant and taking cognizance u/s 190 of Cr.PC and issued non-bailable warrant for arrest in the case.

Being aggrieved by the aforesaid order, the non-petitioner Nos. 2 to 5 filed revision petition before the Sessions Judge, Morena and after hearing both the parties the Court set aside the order passed by the Trial Court on the ground that cases was registered under Sections 147, 148, 149, 307 and 294 of IPC and subsequently due to death of Sarnam Singh, the case was also registered u/s 302, read with Section 120B of IPC. The view of the Sessions Judge is that in case triable by the Court of Sessions, the Magistrate has no power to take cognizance u/s 190 of Cr.PC and, therefore, set aside the order passed by the Trial Court.

The complainant filed this revision petition on the ground that the Revisional Court commits irregularity and illegality by setting aside the order passed by the Trial Court because u/s 190 of Cr.PC, the Court can take cognizance even the case is triable by the Sessions Court. In view of Sections 190 and 191(b) of Cr.PC, Magistrate cannot take cognizance if the case is triable exclusively by the Court of Session.

Under Section 190 of Cr.PC, there are various ways in which a Magistrate can take cognizance of an offence, i.e., take notice of an allegation of commission of offence with a view to taking some kind of action provided in the Code to bring the offender to justice. Cognizance can be taken in three ways: (a) upon a complaint, (2) upon a police report (3) upon other information or Magistrate''s own knowledge while under Sections 193 and 195 to 199 of Cr.PC regulate the competence of the Court and bar its jurisdiction in certain case excepting in compliance therewith. The section says that except as otherwise expressly provided, no Sessions Court can take cognizance of any offence without any commitment by a Magistrate. In the present Code, committal has been made a formal affair by omitting altogether committal proceedings. When an offence is exclusively triable by a Court of Session, the Magistrate shall commit the accused to the Court of Sessions. The meaning of cognizance from the language of Section 193 and definition of "offence" in Section 2(n), it seems to follow that the prohibition in Section 193 is against taking cognizance of the act or omission unless there is a commitment therefore and not against taking cognizance of a different mens rea or a subsequent consequence of the act punishable under a different provision of law.

After having heard the arguments at length, learned Counsel for the petitioner relied on the decision of this Court in the case of Rukvendra Singh and Ors. v. State of M.P. and Anr. reported in 2004 (2) MP 71 : 2004 (2) JLJ 61. It lays down that under Sections 190, 193, 209 and 319, charge-sheet filed by police for offences exclusively triable by Court of Session. Judicial Magistrate, First Class can exercise jurisdiction u/s 190 for adding accused not charge-sheeted. Sessions Court can do so after case is committed to it u/s 319.

In the aforesaid pronouncement, it is also held that Magistrate can take cognizance of any offence and in view of this specific bar u/s 193 of Cr.PC that except as otherwise expressly provided by this Code by any other law for the time being in force, no Court of Session can take cognizance of any offence as a Court of original jurisdiction unless case has been committed to it by a Magistrate under this Code. Reliance was placed in Raj Kishore Prasad v. State of Bihar and Anr. 1996 SCC (Cri.) 772; Raghubans Dubey Vs. State of Bihar, ; Ranjit Singh v. State of Punjab 1998 SCC (Cri.) 1554 and M/s. SWIL Ltd. Vs. State of Delhi and Another, .

In the case of Rajendra Prasad v. Bashir Ahmed reported in 2001 CAR 485, the Supreme Court has considered the provisions of Sections 190, 209, 216 and 323 of Cr.PC and after placing reliance on two earlier decisions, i.e., in the case of Raghuvansh Dubey v. State of Bihar (supra) and Swil Ltd. v. State of Delhi (supra), held that u/s 190 of Cr.PC, Magistrate can exercise jurisdiction and can take cognizance in the matter.

In the case of Raghuvansh Dubey (supra), Supreme Court held as under:

In the present case, there is no question of referring to the provisions of Section 319 of Cr.PC. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated u/s 2(g) of Cr.PC nor had the trial started. He was exercising his jurisdiction u/s 190 of Cr.PC of taking cognizance of an offence and issuing process. There is no bar u/s 190 of Cr.PC that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom, there is some material on record, but his name is not included as accused in the charge-sheet.

In view of the above discussion, it appears that the view taken by learned Sessions Judge is not correct as per provision of Section 190 of Cr.PC. Hence, the impugned order is set aside and the order passed by learned JMFC, Morena is maintained.

Accordingly revision petition disposed of.