MOTi LAL SONGARA v. PREM PRAKASH @ PAPPU & Anr.

Respondent no.1 challenged order dated 19-11-2008 of the Magistrate in Criminal Revision No. 7 of 2009 before Sessions Judge, No. 1, without bringing to its notice the order dated 27-7-2009 passed by Sessions Judge, No. 3. The Sessions Judge, No. 1 by order dated 14-10-2009 set aside the order of the Magistrate. c 0 Subsequently, respondent no.1 filed applic~tion seeking discharge. The trial Judge declined to discharge respondent no.1. He preferred Criminal Revision No. 327 of 2011 before the High Court which quashed the charges E framed against him for the offences punishable under Sections 323, 324 and 307 IPC on the foundation that the order dated 19-11-2008 passed by the Magistrate taking cognizance and issuing summons had already been set aside by the revisional Court i.e. Sessions Judge, No. 1, F in Criminal Revision No. 7 of 2009.The High Court held that when the order dated 14-10-2009 passed by Sessions Judge No.1 setting aside the order taking cognizance was not challenged, the very basis of the continuance of the proceeding had become extinct and, therefore, the G order of framing of charges could not be sustained. In the instant appeal, the appellant contended that respondent no.1 had not approached the court with clean hands and the High Court should not have interfered with the order of trial Judge declining to discharge respondent H 498 SUPREME COURT REPORTS [2013] 6 S.C.R. A no.1. Per contra, respondent No. 1 contended that once the order taking cognizance had gone unchallenged, it was obligatory on the part of the High Court to direct a discharge; and that apart, the Magistrate could not have taken cQgnizance in exercise of power under Section 190 B CrPC. Allowing the appeal, the Court HELD: 1. The order of Magistrate taking cognizance against the first respondent cannot be found fault with. C The Magistrate took cognizance on the basis of facts brought to his notice by the appellant-informant and, therefore, he has, in fact, exercised the power under Section 190(1){b) CrPC. [Para 17] [509-D-E] 0