Criminal P.C. 1973 – Section 193 – Cognizance of Offences – Sessions Court – 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.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(A.K. SIKRI) AND (R.K. AGRAWAL) JJ.
MAY 10, 2016
CRIMINAL APPEAL NO. 253 OF 2016
BALVEER SINGH & ANR. …..APPELLANT(S)
STATE OF RAJASTHAN & ANR. …..RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The appellants in this appeal are the parents of one Abhimanyu Singh who was married to Renu on 24.02.2014. Renu was found dead on 27.11.2014 i.e. within ten months of the wedding. Cause of death was Asphyxia due to hanging. An FIR was lodged by respondent No. 2 herein (Father of deceased) alleging that Renu was done to death by her husband Abhimanyu Singh as well as his parents (appellants herein) for not satiating the dowry demands of the accused persons. FIR has been registered under
Sections 304-B and 498-A of the Indian Penal Code.
The appellants claimed that it was a case of suicide by hanging committed by Renu. Matter was investigated which resulted into the filing of chargesheet against Abhimanyu only, that too for committing the offence under Section 306 IPC, namely, abetting the suicide committed by Renu. As per the Police investigation there was no dowry demands and no offence under Sections 498-A and 304-B of IPC was made out. Instead it was a case of suicide and at the most Abhimanyu could be charged of abetting the suicide committed by Renu. For that reason, no challan was filed against the appellants herein. On the filing of the aforesaid chargesheet by the Police on 24.02.2015, respondent No. 2 filed an application before the learned Judicial Magistrate, First Class, (JMFC) for taking cognizance against the appellants and Abhimanyu under Sections 304-B and 498-A IPC. This application was dismissed by the learned Magistrate vide order dated 11.03.2015. Thereupon, the learned Magistrate committed the case before the Sessions Court as the offence under Section 306 IPC is triable by the Sessions Court. Before the Sessions Court, respondent No. 2 preferred similar application once again. Here, respondent No. 2 succeeded in his attempt inasmuch as vide order dated 08.10.2015, the learned Sessions Court took cognizance for offences punishable under Sections 304-B and 498-A IPC and, in the alternative, Section 306 IPC, against the appellants and their son. He, thus, directed issuance of bailable warrant against the appellants.
2. Aggrieved by the said order, appellants along with their son Abhimanyu approached the High Court. High Court vide its order dated 04.11.2015 remanded the matter back to the Sessions Court with a direction to hear the parties and pass further orders in the light of judgment of this Court in
Dharam Pal & Ors. v. State of Haryana and Anr.,(2014) 3 SCC 306
The Sessions Court accorded fresh hearing and thereafter passed order dated 08.12.2015 thereby allowing the application once again to the extent of taking cognizance under Sections 304-B and 498-A IPC and, in the alternative, Section 306 IPC against the appellants as well as their son. The appellants challenged this order by filing revision petition before the High Court which has been dismissed by the High Court on 18.12.2015. This order is impugned in the present proceedings.
3. We may record at the outset that the sole ground on which the order was challenged before the High Court, as well as before us, is that when the Magistrate had dismissed the application of the complainant vide order dated 11.03.2015 and refused to take cognizance under Sections 304-B and 498-A IPC and this order had attained finality as no revision petition/criminal miscellaneous appeal was preferred either by the complainant or by the Public Prosecutor, second application with the same relief was not maintainable before the Sessions Court. It was emphatically argued that it amounted to second time cognizance by the Court of Sessions which was impermissible in law. It was argued that under Section 190 of the Code of Criminal Procedure, 1973 (for short, the ‘Code’), cognizance of the offence can be taken only once.
4. Thus, the question that falls for consideration before us is as to whether the Court of Sessions was empowered to take cognizance of offence under Sections 304-B and 498-A of IPC, when similar application to this effect was rejected by the JMFC while committing the case to Sessions Court, taking cognizance of offence only under Section 306 IPC and specifically refusing to take cognizance of offence under Sections 304-B and 498-A IPC.
5. Mr. Raju Ramachandran, learned senior counsel appearing for the appellants, submitted that when the case is triable by the Sessions Court, Judicial Magistrate after completing the committal proceedings can commit the case for trial before the Court of Sessions. He can do so by simply committing the case on finding from the Police report that the case was triable by the Court of Sessions. In the alternative, he can take cognizance of offence on the basis of Police report and then commit the case for trial to the Court of Sessions. When the Judicial Magistrate adopts the former approach by not taking the cognizance of offence under Section 190 of the Code and commits the case for trial before the Sessions Court, Sessions Court is competent to exercise its power under Section 193 of the Code and to take cognizance of offence in the light of judgment of this Court in Dharam Pal’s case. However, if the Magistrate adopts alternate course of action, namely, takes cognizance of the offence and then commits the case to the Court of Sessions, Sessions Court has no power to take fresh cognizance of the offence inasmuch as cognizance of offence can be taken only once. Again, in support of this proposition, aid of the judgment in Dharam Pal’s case is taken.
6. Per contra, Dr. Sushil Balwada, learned counsel who appeared for respondent No. 2 and Mr. Anish Maheshwari, learned counsel who appeared for the State argued that since the case is triable by the Court of Sessions, it is the Court of Sessions only which is competent to take cognizance and, therefore, order passed by the Sessions Court on 08.12.2015 should be treating as taking cognizance of offence for the first time in terms of Section 193 of the Code. Interestingly, in support of their submissions, the respondents also rely upon the judgment in Dharam Pal’s case. In addition, they also took support from the judgment of this Court in Nisar and Another v. State of U.P.2 7. The aforesaid narration unequivocally demonstrates that both the sides are trying to find support from the judgment in Dharmpal’s case. It would, thus, be apposite to take note of the ratio in the said judgment. However, before we do so, we would like to refer to the provisions of Sections 190 and 193 of the Code which have come into play in the instant case as proper understanding thereof, in our opinion, shall provide categorical answer to the issue at hand and will help us in tracing the underlying legal principle laid down in that case. These provisions make the 2 (1995) 2 SCC 23 following reading:-