Criminal Revision Case No. 2286 of 2010 · High Court

This Criminal Revision Case is directed against the docket order, dated 09.11.2010, in C.C.No.189 of 2009 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad, which reads as under:

Upon perusing the material papers including evidence of witnesses, there is a prima facie case. Hence proceed with. Taken on file under Sections 403, 406, 418, 420, 465, 477 read with 34 I.P.C. Issue fresh summons to accused through Court and registered post. Call on 09.12.2010.

Learned counsel for the petitioners contended that the police, after completion of investigation, filed the final report under Section 173 Cr.P.C. treating it as ‘lack of evidence’; that thereafter, without giving any reasons, the learned Magistrate took cognizance and hence, he prays to set aside the impugned order.

Learned counsel appearing for respondent No.1 contended that as the order of taking cognizance is an Interlocutory Order, no revision lies; that after considering the sworn statement and examination of witnesses, the learned Magistrate rightly applied his mind and took cognizance and hence, that order needs no interference by this Court.

Under Section 204 I.P.C., if in the opinion of a Magistrate, taking cognizance of an offence, there is sufficient ground for proceeding and the case appears to be (a) a summons case, he shall issue his summons for the attendance of the accused or (b) a warrant case, he may issue a warrant or if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate. The Court is bound to make a scrutiny of the material, which has been placed before it, for the purpose of finding out whether a n y prima facie case has been made out showing commission of offence punishable under provisions of Indian Penal Code. The Court should not mechanically issue the process whenever complaint has been presented before the Magistrate.

There cannot be any dispute that the order taking cognizance is a judicial order. The Court has to apply its mind for taking cognizance of the offence. If the allegations made in the sworn statement and in the statements of witnesses recorded, if any, made out a prima facie case of offence alleged against the petitioners, then cognizance of offence can be taken. At that stage, the Magistrate need not dwell deep to decide the correctness or otherwise of the averments made by the witnesses in the statements recorded. If a prima facie case is made out, then, the Magistrate has got power to take cognizance. Taking cognizance is a judicial order and when the judicial order is passed, it must record the brief reasons for taking cognizance. Other party must know for what reasons the case was taken on file especially when police filed a report referring the case as lack of evidence. Recording of reasons is an indispensable part of a sound judicial system. If the order under challenge does not contain any reasons at all, then, it is an incomplete order. Except observation of perusing the material and evidence recorded, there is no other indication as to making out a prima facie case as per the statements made by the witnesses in the trial Court. Therefore, the order under challenge does not contain brief reasons. Though the impugned order is in the nature of Interlocutory Order, due to the bar under Section 397(3) Cr.P.C., a revision does not lie, but at the same time, when the Interlocutory Order finally determines the rights and liabilities of the parties, it can be said to be a final order. Therefore, the bar under Section 397(3) Cr.P.C. has no application to the facts of the case because taking cognizance is a final order and hence, the impugned order is liable to be set aside.

Accordingly, the Criminal Revision Case is allowed setting aside the impugned order insofar as the present petitioners are concerned and remanding the matter to the trial Court for fresh consideration of the matter. The trial Court is directed to consider the material on record independently and if a prima facie case is made out, take cognizance after recording the reasons within a period of two (2) weeks from the date of receipt of a copy of this order. Date: 23.02.2012 AMD _______________ K.C.BHANU, J THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE NO.2286 OF 2010 DATE: 23.02.2012 AMD