Om Prakash Rathi v. The State of Rajasthan

Order

: March 15, 2011 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Rajendra Kumar Sharma for the petitioner. Mr. Laxman Meena Public Prosecutor for the State. Aggrieved by the order dated 13.01.2010 passed by the Learned Additional Judicial Magistrate, Kishangarh, Ajmer, whereby the learned Magistrate has taken cognizance against the accused petitioner for offences under Sections 498A, 406 and 354 IPC, the petitioner has approached before this Court. The brief facts of the case are that on

06.05.2007, the complainant, Shri Gopal Soni had lodged a FIR for offences under Sections 498A, 406 and 323 IPC read with Section 4 of Dowry Prevention Act at Police Station Madanganj, Kishangarh. After a thorough investigation, although the police had filed a charge-sheet 2 against other co-accused persons, the police did not file any charge-sheet against the present petitioner. On the basis of the charge-sheet, on 25.11.2008, the learned Magistrate took cognizance against the other co-accused persons. However, subsequently an application under Section 190 Cr.P.C., was filed by the complainant wherein he prayed that since there was ample evidence against the petitioner, cognizance should also be taken against him. However, vide order dated 12.06.2009, the said application was dismissed by the learned Magistrate. Therefore, aggrieved by the order dated 12.06.2009 the complainant filed a revision petition before the Additional Sessions Judge, Kishangarh, District Ajmer. Vide order dated 06.10.2009, the learned Judge directed the learned Magistrate to pass a fresh order. Therefore, in compliance of the said order, on 13.01.2010 the learned Magistrate took cognizance against the petitioner for the aforementioned offences. Hence, this petition before this Court. The learned counsel for the petitioner has vehemently contended that after a thorough investigation, the police was of the opinion that the petitioner was not involved in he case. Therefore, it did not submit a charge- sheet against the petitioner. Secondly, vide order dated 3

12.06.2009, the learned Magistrate had clearly held that no case is made out against the present petitioner and had refused to take cognizance against the petitioner. Therefore, in light of the order dated 12.06.2009, the order dated 13.01.2010 and order of cognizance passed by the very same Magistrate is illegal. On the last occasion, this Court had noticed the fact that the order dated 13.01.2010 was passed on the basis of case of M/s. SWILL Ltd. V/s. State of Delhi & anr. [AIR 2001 SC 2747]. Therefore, this court asked the learned counsel to distinguish the present case from the case of SWILL Ltd. (supra). In order to distinguish the present case from the case of SWILL Ltd. (supra), the learned counsel has contended that in the present case, the name of of the petitioner was not mentioned in Column No.2 of the charge-sheet whereas in the case of M/s. SWILL Ltd. (supra) the name of the appellant was mentioned in Column No.2. Moreover, the Hon'ble Supreme Court had taken note of the fact that because of the stay order passed by the High Court of Kerala, it was not possible for the police to interrogate against respondent No.2 and to ascertain whether he was involved in the conspiracy or not. However, the facts of the present case are that there was no such stay granted by any Court 4 which would prevent the police from interrogating the petitioner. Hence, according to the learned counsel, the present case is distinguishable on the factual matrix itself. Heard the learned counsel and perused the impugned order. The issue before this Court is if once a cognizance order has been passed, against those persons against whom a charge-sheet has been filed, whether the learned Magistrate can still exercise its power under Section 190 Cr.P.C., and also taking cognizance against those persons against whom no charge-sheet has been filed. This was the issue that was decided by the Hon'ble Supreme Court in the case of M/s. SWILL Ltd. (supra). In the M/s. SWILL Ltd. (supra), the Apex Court observed as under :- At the stage of taking cognizance of the offence, provisions of S. 190, Cr.P.C. would be applicable. Section 190 inter alia provides that 'the Magistrate may take cognizance of any offence upon a Police report of such facts which constitute an offence'. As per this provision, Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under S. 204, Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named 5 therein. For that purpose, he is required to consider the FIR and the statements recorded by the Police Officer and other documents tendered along with charge- sheet. Further, upon receipt of police report under S.173(2), Cr.P.C., the Magistrate is entitled to take cognizance of an offence under S.190(1)(b)even if the Police Report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of S.319, Cr.P.C. 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 under S.2(g), Cr.P.C., nor the trial had started. He was exercising his jurisdiction under S.190 of taking cognizance of an offence and issuing process. There is no bar under S.190, Cr.P.C. 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. Therefore, according to the Apex Court even if the cognizance has been taken against those persons against whom charge-sheet has been filed, such an exercise of power would not denude the Magistrate of his power under Section 190 Cr.P.C., to further take cognizance against those persons who have not been 6 charge-sheeted by the police. According to the Hon'ble Apex Court, it is not essential for the Magistrate to wait till the stage of Section 319 Cr.P.C. is reached. In the present case, the Magistrate had taken cognizance against the other accused persons on

25.11.2008. It was only subsequently that the complainant had moved an application, that too, under Section 190 Cr.P.C., praying that the cognizance against the present petition should also be taken. Vide order dated

12.06.2009, the learned Magistrate did not conclude that “no case was made out against the petitioner”. In fact, he merely held that the power under Section 190 Cr.P.C. could not be exercised by him once the said power was exercised against those persons who were charge- sheeted. In fact, he expected the prosecution to wait till the stage of 319 Cr.P.C., was reached. This decision was challenged before the learned Revisional Court. In light of the principles stated in the case of M/s. SWILL Ltd., obviously the learned revisional Court was justified in remanding the case back to the learned Judicial Magistrate and in directing him to invoke his power under Section 190 Cr.P.C. The learned Magistrate has passed his order dated 13.01.2010 invoking the power under Section 190 Cr.P.C. on the basis of the principles established by the 7 Apex Court in the case of M/s. SWILL Ltd. (supra). Therefore, this Court does not find any illegality or perversity in the impugned order dated 13.01.2010 as it is in conformity with the principles laid down by the Apex Court. Hence, this petition is devoid of any merit; it is, hereby, dismissed. A.Asopa/- (R.S.CHAUHAN)J.