Orissa High Court
Unknown vs State Of Orissa And … Opposite Parties on 1 October, 2024
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.587 of 2023
(An application U/S. 401 read with Section 397 of the
Code of Criminal Procedure, 1973 against the order dated
25.09.2023 passed by learned JMFC, Salipur in ICC Case
No.11/2023 arising out of GR Case No. 14 of 2021
corresponding to Mahanga P.S. Case No. 05/2021)
Pratap Kumar Jena @ ... Petitioner
Pratap Jena
-versus-
State of Orissa and ... Opposite Parties
another
For Petitioner : Mr. S. Agarwal, Sr. Advocate
along with Mr. D.P. Dhal, Sr.
Advocate, Mr. P. Mahapatra,
Mr. A. Mohanty and
Mr. A Ray, Advocates
For Opposite Parties : Mrs. S. Pattanaik, AGA
Mr. J.K. Das, Sr. Advocate
along with Mr. P. Parija and
Mr. L.K. Maharana,
Advocates for OPNo.2
CORAM:
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :01.08.2024
DATE OF JUDGMENT:01.10.2024
G. Satapathy, J.
1. The petitioner by invoking the jurisdiction of this
Court U/S. 401 read with Section 397 of the Code of
CRLREV No.587 of 2023 Page 1 of 59
Criminal Procedure, 1973 ( in short, “CrPC”) has
challenged the order dated 25.09.2023 passed on the
protest petition filed in the shape of complaint in ICC No.
11 of 2023 arising out of G.R. Case No. 14 of 2021
corresponding to Mahanga P.S. Case No. 5 of 2021, by
which the learned J.M.F.C., Salipur has again taken
cognizance of offences punishable U/Ss. 302/120-B and
506 of Indian Penal Code, 1860 (in short, “IPC”) and
directed the complainant to file requisites for issuance of
process against the petitioner.
2. The main ground of challenge in this revision is
that the impugned order taking cognizance of offences
again being passed on the second protest petition
subsequently to the order taking cognizance dated
03.05.2021 passed in G.R. Case No. 14 of 2021 for
commission of offences punishable U/Ss. 120-
B/147/148/302/506/149 of IPC read with Section 26/27
of Arms Act and committing the case record to the Court
of Sessions on 08.10.2021 qua the other accused
persons which was registered as S.T. Case No. 32 of
CRLREV No.587 of 2023 Page 2 of 59
2021 of the Court of learned Additional Sessions Judge,
Salipur, is illegal and unsustainable in the eye of law,
since cognizance of offence is taken once as well as after
commitment of records, there remains no record with
the committing Court.
3. The short background facts required for disposal
of this revision are that on 02.01.2021 at about 7.50 PM,
two persons namely Kulamani Baral and Dibyasingh
Baral of village Jankoti were being brutally assaulted by
a group of persons with lethal weapons like sword,
billhook, gun and chappad(sharp cutting weapon), near
the house of one Suresh Chandra Sarangi leading to
their death in the hospital at CHC, Mahanga. On the next
day at about 8.35 AM, one Ramakanta Baral who was
the son of the deceased Kulamani Baral appeared at
Mahanga PS and presented an FIR (Annexure-1) alleging
therein against 14 persons in killing his father and
deceased Dibyasingh Baral, but in such FIR the
informant Ramakanta Baral specifically alleged against
the present petitioner who was then a sitting MLA and
CRLREV No.587 of 2023 Page 3 of 59
was earlier a Minister, for giving threatening to kill the
deceased Kulamani Baral who disclosed it before the
informant just four days before the occurrence.
3.1 On the aforesaid FIR, Mahanga PS Case No.5
of 2021 corresponding to GR Case No.14 of 2021 of the
Court of learned JMFC, Salipur was registered against
the petitioner and others for commission of offence
U/Ss.147/148/149/506/302/120-B of IPC r/w Sections
25/27 of Arms Act and, accordingly, the investigation
ensued in the matter which culminated in submission of
charge-sheet against 13 accused persons on
01.05.2021, but the investigating officer did not file any
chargesheet against the petitioner and another person
namely Shakti Prasad Rout as the allegation against
them could not be substantiated. On receipt of the
charge-sheet(final form), the learned JMFC, Salipur vide
order dated 04.05.2021 (Annexure-3) by taking
cognizance of offences issued process against the
accused persons named in the final form submitted by
the IO under Annexure-2. Being dissatisfied with the
CRLREV No.587 of 2023 Page 4 of 59
result of investigation for not finding complicity of the
petitioner in this case, the informant-Ramakanta Baral
on 16.08.2021 filed a complaint in 1CC Case No.217 of
2021 in the form of protest petition vide Annexure-4
before the learned JMFC, Salipur who vide an order
dated 25.08.2021 under Annexure-5 by making a detail
analysis, directed the IIC, Mahanga PS to take up further
investigation against the petitioner and to submit a
report in accordance with Section 173(8) of CrPC on the
aforesaid protest petition of the informant. Pending
further investigation, the learned JMFC, Salipur vide
order dated 08.10.2021 under Annexure-6 committed
the case record to the Court of learned Additional
Sessions Judge, Salipur leading to registration of ST
Case No.32 of 2021 for trial of the 10 apprehended
accused persons whose names found place in the
charge-sheet. On 18.11.2021, the learned JMFC, Salipur
by an order under Annexure-7 passed in the complaint
on the petition of the complainant directed the IIC,
Mahanga PS for collection and preservation of CDR of
CRLREV No.587 of 2023 Page 5 of 59
material persons and to intimate the Court about the
action taken by 25.11.2021. However, on 20.09.2022,
the investigating officer filed the final form under
Annexure-8 by submitting a final report against the
petitioner treating the case against him as false.
3.2 Against the aforesaid final report, since the
informant in Mahanga PS Case No.5 of 2021 died in the
meanwhile, his brother instituted a second complaint in
the form of protest petition on 09.01.2023 under
Annexure-9 which was registered as 1CC Case No.11 of
2023 in the Court of learned JMFC, Salipur. After
recording the initial statement of the complainant under
Section 200 of CrPC as well as the statements of other
witnesses in an enquiry under Section 202 of CrPC, the
learned JMFC, Salipur transferred the record on
15.09.2023 to the learned Additional District & Sessions
Judge-cum-Special Court, Bhubaneswar for disposal of
the case in accordance with law on the ground that the
said Court has jurisdiction to deal with the matter
relating to MP and MLA, but such record was returned
CRLREV No.587 of 2023 Page 6 of 59
back to the learned JMFC, Salipur on 25.09.2023 for the
defect of not taking cognizance. Accordingly, on
25.09.2023, the learned JMFC, Salipur by an order took
cognizance again for offences U/Ss 302/120-B/506 of
IPC by holding the same to have been made out against
the petitioner and directed the complainant to file
requisites for issuing summons/process against the
petitioner. On the aforesaid backdrop, the petitioner
claiming incurable jurisdictional error and illegality has
approached this Court in this Criminal Revision praying
to quash the order taking cognizance of offences for
second time and the entire criminal proceedings in 1CC
Case No.11 of 2023.
4. In assailing the impugned order taking
cognizance of offences for the second time, Mr.
Siddharth Agarwal, learned Senior Counsel appearing
along with Mr. D.P. Dhal, learned Senior Counsel for the
petitioner has submitted that once Magistrate takes
cognizance of offences upon receipt of police report and
commit the case record to the Court of Sessions, he
CRLREV No.587 of 2023 Page 7 of 59
becomes functus officio and such Magistrate is denuded
with power of taking cognizance of offences for second
time after initially taking cognizance of offences. It is
further submitted by learned Senior Counsel Mr. Agarwal
that after taking cognizance of offences upon receipt of
report under Section 173(2) of Cr.P.C. in Mahanga PS
Case No.5 of 2021 initially on 04.05.2021, the
Magistrate could not have ordered for further
investigation under Section 173(8) of Cr.P.C. without
assigning any reason(s) or disagreeing with such report
Under Section 173 of Cr.P.C. as submitted by the IO, but
even thereafter, the IO on the direction of the learned
Magistrate had conducted further investigation in the
matter and submitted a final report as false against the
petitioner and thereby, without disagreeing with such
report on further investigation or assigning any reason,
the learned Magistrate has erroneously entertained the
second protest petition on the same facts and incident
and that too, after a considerable lapse of time of
commitment of case record in original file to the Court of
CRLREV No.587 of 2023 Page 8 of 59
Sessions on 08.10.2021 by entertaining the second
protest petition on 09.01.2023. It is further submitted
by Mr. Agarwal that there is no bar in entertaining the
second protest petition, but the same should be resorted
to in exceptional circumstance, more particularly the
same can be done by a reasoned order, however, no
reasoned order having been passed to entertain the
second protest petition, the proceeding itself pursuant to
the second protest petition is vitiated and liable to be
quashed, especially when the investigating agency has
submitted the final report as false against the petitioner
after duly analyzing the allegation stated in the first
protest petition as well as making an analysis of detailed
call records of the phone numbers used by the
petitioner, so also examining the witnesses on whose
statements in an enquiry under Section 202 of Cr.P.C.,
the learned Magistrate has taken cognizance of offences
for the second time by directing to issue process against
the petitioner. Mr. Agarwal has further submitted that
after committal of the case record, 13 accused persons
CRLREV No.587 of 2023 Page 9 of 59
are facing trial in respect of the same incident in the
Court of learned Additional Sessions Judge, Salipur and
the Magistrate after committing the case record to the
Court of Sessions is denuded with the power to entertain
the second protest petition. However, ignoring such
situation, the learned Magistrate has exceeded
jurisdiction by taking cognizance of offences and
directing issuance of process when the learned
Additional Sessions Judge is in seisin over the case, but
by adding the petitioner as an accused in this case, the
learned Magistrate has practically adopted the course
under Section 319 of Cr.P.C., but such power is not
available to him in view of the fact that the case record
has been committed to the Court of Sessions who is in
seisin over the matter and, therefore, the impugned
order as well as the proceeding arising out of second
protest petition in 1CC Case No.11 of 2023 are ex-facie
illegal and cannot stand on the scrutiny of law. In order
to fortify his submission, Mr. Agarwal, learned Senior
Counsel has mainly relied upon the decisions in (1)
CRLREV No.587 of 2023 Page 10 of 59
Dharam Pal and others v. State of Haryana and
another; (2014) 3 SCC 306, (2) Kishun Singh v.
State of Bihar; (1993) 2 SCC 16, (3) Sk. Latfur
Rahman and others v. The State; (1985) CriLJ
1238 (FB), (4) Bichitra Pradhan and others v. State
of Orissa and another; (2023) SCC Online 6069, (5)
Krishna Lal Chawla v. State of Uttar Pradesh and
another; (2021) 5 SCC 435, (6) Suresh Garodia v.
State of Assam and another; 2024 SCC Online SC
38, (7) Hardeep Singh vrs. State of Punjab and
others; (2014) 3 SCC 92 and (8) Birla Corporation
Limited v. Adventz Investments and Holdings
Limited and others; (2019) 16 SCC 610. In summing
up his argument and reiterating the facts of the case,
Mr. S. Agarwal has prayed to allow the Revision by
quashing the impugned order and the criminal
proceeding arising out of second protest petition in 1CC
Case No.11 of 2023.
5. In repealing the aforesaid submissions as
advanced for the petitioner, Mr. J.K. Das, learned Senior
CRLREV No.587 of 2023 Page 11 of 59
Counsel appearing along with Mr. P. Parija, learned
counsel for OPNo.2 has submitted that law does provide
for filing or entertaining of second complaint even on the
same facts and since the investigation in this case
against the petitioner, who was a sitting MLA of the
ruling party then was biased, the complainant-cum-
OPNo.2 was forced to institute the second protest
petition, especially when the first protest petition was
neither investigated into properly nor was any evidence
collected against the petitioner for his influence
ultimately leading to filing of closure report against him
by the police which necessitated the filing of second
protest petition against him which was rightly
entertained by the learned Magistrate who has
committed no illegality in taking cognizance of offences
and issuing process against the petitioner by taking into
consideration the statement of the complainant and
witnesses. It is also submitted by Mr. Das that there is
absolutely no bar to entertain the second protest petition
even after committal of the case record to the Court of
CRLREV No.587 of 2023 Page 12 of 59
Sessions for trial of other accused persons, since the
investigating agency committed willful lapses in
submitting a closure report against the petitioner. It is
also submitted on behalf of OPNo.2 that law confers
power on the Magistrate to take cognizance of offences
under Section 190(1)(a) of Cr.P.C. on the basis of
original complaint upon examination of the complainant
and witnesses on oath in view of the provision laid down
in Section 200 and 202 of Cr.P.C. which has been clearly
laid down by the Apex Court in H.S. Bains v. State
(Union Territory of Chandigarh); AIR 1980 SC
1883. It is also argued on behalf of OPNo.2 that the
Magistrate has got definite power to issue process even
against those persons not arraigned as an accused in
police report and whose name also does not figure out in
Column No.2 of such report, but in this case, the
petitioner being named in the FIR and the investigation
against him being biased, it was perfectly within the
power and domain of the learned jurisdictional
Magistrate to proceed against him on the protest petition
CRLREV No.587 of 2023 Page 13 of 59
which is the proposition enunciated by the Apex Court in
Nahar Singh v. State of Uttar Pradesh and another;
(2022) 5 SCC 295. Further, it is submitted by Mr. Das
that the criminal proceeding against the petitioner
arising out of the protest petition cannot be quashed in
exercise of power under Sections 397/401 of Cr.P.C.
Learned Senior Counsel has also submitted by relying
upon the decision in Vinubhai Haribhai Malaviya and
others v. State of Gujarat and another; (2019) 17
SCC 1 that the direction passed by the learned
Magistrate in directing further investigation even after
committing the record to the Court of Sessions does not
suffer from any infirmity, since the Magistrate at all
stages of criminal proceeding has power to direct for
further investigation. Mr. Das, learned Senior Counsel
while concluding his argument has prayed to dismiss the
Criminal Revision.
6. In playing a passive role, Mrs. S. Pattanaik,
learned AGA, however, has submitted that upon receipt
of police report under Section 173(2) of Cr.P.C., the
CRLREV No.587 of 2023 Page 14 of 59
learned Magistrate may agree or disagree with such
report and proceed in accordance with law, but after
taking cognizance of offences, the Magistrate cannot
resort to Section 156(3) of Cr.P.C. for ordering a fresh
investigation, however, in this case, the Magistrate
having proceeded against the petitioner on the second
protest petition, this Court may pass appropriate order
in accordance with law.
7. After having bestowed an anxious and careful
consideration to the rival submissions upon perusal of
record, the following legal questions which arise for
consideration of this Court are: –
(i) Whether the jurisdictional Magistrate can take
cognizance of offence(s) for second time on the
protest petition of the complainant-informant
and issue process against a person, who
although named in the FIR was not charge-
sheeted as an accused in the report submitted
under Section 173(2) of Cr.P.C. after committal
of case record to the Court of Sessions,
especially when cognizance was already taken
for the first time and process was issued against
the accused persons named in such police
report?
(ii) Whether all the actions taken by
jurisdictional Magistrate in the same case record
CRLREV No.587 of 2023 Page 15 of 59
after its committal to the Court of Sessions are
without any jurisdiction?
8. The aforesaid two questions are formulated on
the basis of the undisputed facts involved in this case
which disclose that two persons were being brutally
assaulted to death and the son of one of the deceased
lodged an FIR against 14 accused persons including the
petitioner and one unknown person holding them
responsible for the murder of his father and another
and, the only allegation leveled against the petitioner in
the FIR in this case is that the petitioner had threatened
to kill the informant and his father which was disclosed
by the deceased to his son-cum-informant just four
days before the occurrence. The investigating officer
upon investigation on the FIR of the informant submitted
the report under Section 173(2) of CrPC by stating
therein that the allegation against the petitioner could
not be substantiated on verification of phone calls of the
petitioner while submitting charge-sheet against 13
other accused persons. Pursuant to the aforesaid report
under Section 173(2) of CrPC, the matter was further
CRLREV No.587 of 2023 Page 16 of 59
investigated upon the first protest petition of the
informant, but the IO upon further investigation
submitted a final report treating the case against the
petitioner as false leading to filing of second protest
petition resulting in the impugned order. It is also not in
dispute that the witnesses cited in the second protest
petition figured out in the charge-sheet as a charge-
sheet witnesses.
9. On consideration of the undisputed facts in the
light of rival submissions, there appears no dispute that
Chapter-XII of the CrPC lays down the statutory scheme
and procedure to provide “information to the police and
their powers to investigate the matter” and in any case
upon completion of an investigation pursuant to the
registration of the FIR, the officer-in-charge of such
police station shall forward to the jurisdictional
Magistrate empowered to take cognizance of offence on
a police report, a report in the form prescribed by the
Government stating inter-alia whether any offence
appears to have committed and if so, by whom, which
CRLREV No.587 of 2023 Page 17 of 59
has been provided in Section 173(2)(i)(d) of CrPC, but
Sec. 173(2)(ii) makes it obligatory for the officer to
communicate the action taken by him to the informant.
This is not an empty formality, but a statutory duty cast
upon the officer conducting investigation. Whatever may
be the result of investigation, the informant is entitled to
know such result and, therefore, the Court is duty bound
to ensure the compliance of aforesaid provision. As soon
as the jurisdictional Magistrate receives a report U/S.
173(2) of CrPC, he may either agree or disagree with
such report, but in case he is not directing further
investigation while agreeing with such report, it is
advisable for him to give notice to the informant before
accepting such report and taking further action thereof,
which would obviously avoid anomaly and situation like
this leading to further litigation. In this case at hand, the
learned JMFC, Salipur while accepting such report U/S.
173(2) of CrPC, which was filed against 14 accused
persons excluding the petitioner and one Shakti Prasad
Rout, took cognizance of offences and directed issuance
CRLREV No.587 of 2023 Page 18 of 59
of process against the accused persons named in the
report, however, without giving notice to the informant
who had right to know the result of investigation, which
gave rise to further litigation in the matter. However, the
informant being dissatisfied with the police report had
filed a protest petition on 16.08.2021 which came to be
registered as ICC No. 217 of 2021 and on 19.08.2021
the same was directed to be tagged with original case
record in G.R. Case No. 14 of 2021, but on 25.08.2021
the learned JMFC, Salipur after referring to the various
precedents of Apex Court had passed an order directing
further investigation in the light of allegation raised in
the protest petition, however, such order was bereft of
any discussion with regard to any defect/negligence in
the investigation nor does it disclose his dissatisfaction
in the matter of investigation. Undoubtedly, the learned
JMFC, Salipur had passed this order for further
investigation against the petitioner, but the same was
passed after passing of order taking cognizance of
offences with issuance of process against the accused
CRLREV No.587 of 2023 Page 19 of 59
persons named in the police report U/S. 173(2) of CrPC
on 04.05.2021 in G.R. Case No. 14 of 2021, which order
in fact also does not disclose any negligence/latches in
the matter of investigation. This Court is conscious of
the power of the Magistrate to direct further
investigation, but when such power is being exercised by
the learned Magistrate which is at the post cognizance
stage, the order should have contained the reasons for
directing further investigation which was in fact not done
in this case.
10. The word further investigation as it denotes by
its meaning is a continuation of earlier investigation, but
it is neither fresh investigation nor re-investigation.
Admittedly, charge-sheet No.109 dated 01.05.2021 was
received in the Court on 03.05.2021 and on the next
day, cognizance of offences was taken by the learned
JMFC, Salipur, but the protest petition was received in
the Court on 16.08.2021 which is more than three
months after submission of charge-sheet. However, the
learned Court of JMFC, Salipur is not denuded of power
CRLREV No.587 of 2023 Page 20 of 59
to direct further investigation in such situation, but such
order must contain the brief reasons as to why the
further investigation is ordered since the Magistrate has
already taken cognizance without noticing or indicating
any defect or negligence in investigation. There is no
dispute that if the police do not perform its statutory
duty in accordance with law or the investigation is
biased or there is defect or negligence in investigation,
the Court cannot abdicate its duty by simply saying that
the investigation is exclusive prerogative of police. Once
the conscience of the Court is satisfied on analysis of
material collected in the course of investigation that the
police was slack or negligent in investigation or it has
not investigated properly, in such situation, the Court
cannot close its eye, rather it has got a constitutional
duty to ensure fair and impartial investigation and, in
such situation, the Court can direct for further
investigation within the contours of law, since a fair
investigation is explicit and inherent in Article 21 of the
Constitution of India. This Court never doubts the
CRLREV No.587 of 2023 Page 21 of 59
powers of the Magistrate to order for further
investigation. The powers of the Magistrate and the
stage of the case for directing further investigation has
come up for discussion in the case of Vinubhai
Haribhai Malaviya (supra) wherein a three Judge
Bench of apex Court in paragraph-42 has been held as
under:
“42. Xxx xxx xxx To say that a fair and just
investigation would lead to the conclusion that the
police retain the power, subject, of course, to the
Magistrate’s nod under Section 173(8) to further
investigate an offence till charges are framed, but
that the supervisory jurisdiction of the Magistrate
suddenly ceases midway through the pre-trial
proceedings, would amount to a travesty of justice,
as certain cases may cry out for further
investigation so that an innocent person is not
wrongly arraigned as an accused or that a prima
facie guilty person is not so left out. There is no
warrant for such a narrow and restrictive view of
the powers of the Magistrate, particularly when
such powers are traceable to Section 156(3) read
with Section 156(1), Section 2(h) and Section
173(8) CrPC, as has been noticed hereinabove, and
would be available at all stages of the progress of a
criminal case before the trial actually
commences. It would also be in the interest of
justice that this power be exercised suo motu by
the Magistrate himself, depending on the facts of
each case. Whether further investigation should or
should not be ordered is within the discretion of
the learned Magistrate who will exercise such
discretion on the facts of each case and in
accordance with law. If, for example, fresh facts
come to light which would lead to inculpating orCRLREV No.587 of 2023 Page 22 of 59
exculpating certain persons, arriving at the truth
and doing substantial justice in a criminal case are
more important than avoiding further delay being
caused in concluding the criminal proceeding, as
was held in Hasanbhai Valibhai Qureshi v.
State of Gujarat; (2004) 5 SCC 347.”
11. The inevitable conclusion as emanates from the
discussions made hereinabove is that the jurisdictional
Magistrate has power and authority to direct for further
investigation at post cognizance stage till the trial
actually commences, but as the word “discretion” used
in the decision Vinubhai Haribhai Malaviya (supra),
the jurisdictional Magistrate has to exercise such
discretion in accordance with law and the order directing
for further investigation must contain the brief reasons
for directing further investigation and such order
directing further investigation should not be passed in a
routine manner, merely on the asking of the party since
the person who has been alleged has an inherent right
not to be harassed on the pretext of further
investigation merely on the ground of settling the score
on account of personal vendetta of the other side.
CRLREV No.587 of 2023 Page 23 of 59
12. This brings this Court to the main question which
can be quite objectively said that cognizance of offence
cannot be taken multiple times including for the second
time. In a criminal case, the Magistrate is normally the
interface between the investigating wing and the Court
at the first point of time, irrespective of the offence(s)
being triable by a Magistrate or a Court of Sessions, but
not for an offence under Special Act, and taking
cognizance of offence(s) more than once is
impermissible, unless the order taking cognizance is set-
aside or varied by the higher forum since cognizance of
offence is taken, but not against the offender. Whether
cognizance of offence(s) can be taken for the second
time without the said order taking cognizance being set-
aside or varied has been well settled by apex Court in
the decision relied on by the petitioner in Dharam Pal
(supra) wherein a Constitutional Bench of five judges in
paragraph-39 has held as under:
“39. Xxx xxx xxx. It is well settled that
cognizance of an offence can only be taken
once. In the event, a Magistrate takes
cognizance of the offence and then commits
the case to the Court of Session, the questionCRLREV No.587 of 2023 Page 24 of 59
of taking fresh cognizance of the offence and,
thereafter, proceed to issue summons, is not
in accordance with law. If cognizance is to be
taken of the offence, it could be taken either by the
Magistrate or by the Court of Session. The
language of Section 193 of the Code very clearly
indicates that once the case is committed to
the Court of Session by the learned
Magistrate, the Court of Session assumes
original jurisdiction and all that goes with the
assumption of such jurisdiction. The provisions
of Section 209 will, therefore, have to be
understood as the learned Magistrate playing a
passive role in committing the case to the Court of
Session on finding from the police report that the
case was triable by the Court of Session. Nor can
there by any question of part cognizance
being taken by the Magistrate and part
cognizance being taken by the learned
Session Judge.”
Similarly, in the decision relied on by the learned
counsel for OPNo.2 in Balveer Singh and another v.
State of Rajasthan and another; (2016) 6 SCC 680,
the Apex Court by following the decision in Dharam Pal
(supra) has once again reiterated that cognizance of
offence can only be taken once and in the said decision,
the Apex Court in paragraph-24 has held as under: –
“Xxx xxx xxx xxx it would be a case where the
Magistrate has taken cognizance of offence.
Notwithstanding the same, the Sessions Court on
similar application made by the complainant before
it, took cognizance thereupon, normally, such a
course of action would not be permissible.”
CRLREV No.587 of 2023 Page 25 of 59
13. It is, therefore, crystal clear that in a criminal
case, cognizance of offence can only be taken once, but
not for multiple times. Admittedly, in this case, the
learned JMFC, Salipur has entertained a second protest
petition and after recording initial statement of the
complainant and statements of witnesses in enquiry
under Section 202 of CrPC has proceeded to take
cognizance of offences again and directed issuance of
process against the petitioner. This brings us to another
legal puzzle about the validity of entertaining the second
protest petition. It is, however, argued by Mr. Agarwal,
learned Senior Counsel that entertaining second
complaint in the form of protest petition would amount
to grave abuse of process. In this regard, he has relied
upon the decision in Krishna Lal Chawla (supra)
wherein at paragraph-10, the Apex Court has observed
as under: –
“10. …Permitting multiple complaint by the same
party in respect of the same incident, whether it
involves a cognizable or private complaint offence,
will lead to the accused being entangled in
numerous criminal proceedings. As such, he would
be forced to keep surrendering his liberty andCRLREV No.587 of 2023 Page 26 of 59
precious time before the police and the courts, as
and when required in each case…”
On the other hand, in the decision relied on by
OPNo.2 in Shiv Sankar Singh v. State of Bihar and
others; MANU/SC/1373/2011, the Apex Court has
held that the law does not prohibit filing or entertaining
of the second complaint even on the same facts,
provided the earlier complaint has been decided on the
basis of insufficient material or the order has been
passed without understanding the nature of the
complaint or the complete facts could not be placed
before the court or where the complainant came to know
certain facts after disposal of the first complaint which
could have tilted the balance in his favour. However,
second complaint would not be maintainable wherein the
earlier complaint has been disposed of on full
consideration of the case of the complainant on merit. It
is thus clear that the second protest petition is
permissible and maintainable even on same facts, but
subject to aforesaid stipulation as discussed.
CRLREV No.587 of 2023 Page 27 of 59
14. Further, the OP No.2 has also relied upon the
decision in Zunaid v. State of UP and others; 2023
SCC Online SC 1082 to contend that the learned
Magistrate was not denuded of power to take cognizance
of offence on second protest petition, but fact remains in
the relied on case is that learned CJM had refused to
accept the final report and accepted the protest petition
and thereafter, proceeded U/Ss. 200 and 202 of CrPC
which is not in the present case inasmuch as the learned
JMFC, Salipur has never refused to accept the police
report submitted by the Investigating Agency, rather he
has accepted the police report, took cognizance of
offences and committed the case to the Court of
Sessions, whereafter he on receipt of first protest
petition, has directed for further investigation in the
matter, but when the police submitted a final report as
FIR false on the allegation raised by the complainant in
the complaint against the present Petitioner, OP No.2
filed second protest petition in which after initial
statement and enquiry, the learned JMFC, Salipur took
CRLREV No.587 of 2023 Page 28 of 59
cognizance of offence again and directed for filing of
requisites for issuance of process against the Petitioner.
At this juncture, it is considered apt to refer to
paragraph-47 of the decision in Hardeep Singh(supra)
wherein a Constitutional Bench of five Judges of Apex
Court has held as under:-
“Since after the filing of the charge-sheet,
the court reaches the stage of inquiry and as
soon as the court frames the charges, the
trial commences, and therefore, the power
under section 319(1) CrPC can be exercised
at any time after the charge-sheet is filed
and before the pronouncement of judgment,
except during the stage of Sections 207/208
CrPC, committal, etc. which is only a pre-
trial stage, intended to put the process into
motion. This stage cannot be said to be a
judicial step in the true sense for it only
requires an application of mind rather than a
judicial application of mind. At this pre-trial
stage, the Magistrate is required to perform
acts in the nature of administrative work
rather than judicial such as ensuring
compliance with Sections 207 and 208 CrPC,
and committing the matter if it is exclusively
triable by the Sessions Court. Therefore, it
would be legitimate for us to conclude that
the Magistrate at the stage of Sections
207 to 209 CrPC is forbidden, by
express provision of Section 319 CrPC,
to apply his mind to the merits of the
case and determine as to whether any
accused needs to be added orCRLREV No.587 of 2023 Page 29 of 59
subtracted to face trial before the Court
of Session”.
15. In the aforesaid situation, another legal question
crops up as to whether the learned Magistrate was
empowered to summon the present Petitioner in respect
of the case which has already been committed by him to
Court of Sessions around two years before, wherein the
evidence has already been recorded, since admittedly by
the time of filing of second protest petition, the
complainant-cum-OP No.2 and two out of rest four
witnesses have already tendered their evidence before
the Sessions Court and the rest of two witnesses cited in
the complaint have also tendered their evidence in the
Court of Sessions by the time they were examined in the
complaint U/S. 202 of CrPC. In peculiar situation, when
the Sessions trial arising out of the present case, has
already reached the stage of 319 of CrPC for addition of
accused, but no such application was moved before the
Sessions Court for arraying the Petitioner as an accused
on the basis of evidence tendered by the witnesses and
instead OP No.2 approached the learned JMFC, Salipur
CRLREV No.587 of 2023 Page 30 of 59
without offering any explanation for not resorting to
Sec.319 of CrPC. The aforesaid conundrum can be well
answered by referring to the decision relied on by the
Petitioner in Jile Singh v. State of Uttar Pradesh and
another; (2012) 3 SCC 383, wherein after referring to
the decision in Ranjit Singh v. State of Punjab;
(1998) 7 SCC 149 which was subsequently followed by
the Apex Court in Kishori Singh and others v. State
of Bihar and another; 2004 13 SCC 11, the Apex
Court in paragraph nos. 10, 11 and 12 has held as
under:-
10. In Ranjit Singh (supra), this Court was
concerned with the issue whether the Sessions
Court can add a new person to the array of the
accused in a case pending before it at a stage
prior to collecting any evidence. The three
Judge Bench that considered the above issue
referred to various provisions of CrPC, namely,
Sections 204, 207, 208, 209, 225, 226, 227,
228, 229, 230 and 319 and held as under: –
“19. So from the stage of committal till
the Sessions Court reaches the stage
indicated in Section 230 CrPC, that court
can deal with only the accused referred
to in Section 209 CrPC. There is no
intermediary stage till then for the
Sessions Court to add any other person
to the array of the accused.
CRLREV No.587 of 2023 Page 31 of 59
20. Thus, once the Sessions Court takes
cognizance of the offence pursuant to
the committal order, the only other
stage when the court is empowered to
add any other person to the array of the
accused is after reaching evidence
collection when powers under Section
319 CrPC can be invoked. We are unable
to find any other power for the Sessions
Court to permit addition of new person
or persons to the array of the accused.
Of course, it is not necessary for the
court to wait until the entire evidence is
collected for exercising the said powers.”
11. The above legal position has been
reiterated by this Court in a subsequent
decision in Kishori Singh (supra). The two-
Judge Bench in Kishori Singh (supra)
considered some of the provisions of CrPC and
earlier decision of this Court in Ranjit Singh and
two other decisions, namely, Raj Kishore
Prasad vrs. State of Bihar; (1996) 4 SCC
495 and India Carat (P) Ltd. v. State of
Karnataka; (1989) 2 SCC 132 and held as
under:
9. After going through the provisions of
the Code of Criminal Procedure and the
aforesaid two judgments and on
examining the order dated 10-6-1997
passed by the Magistrate, we have no
hesitation to come to the conclusion that
the Magistrate could not have issued
process against those persons who may
have been named in the FIR as accused
persons, but not charge-sheeted in the
charge-sheet that was filed by the police
under Section 173 CrPC.
CRLREV No.587 of 2023 Page 32 of 59
10. So far as those persons against
whom charge-sheet has not been filed,
they can be arrayed as ‘accused
persons’ in exercise of powers under
Section 319 CrPC when some evidence
or materials are brought on record in
course of trial or they could also be
arrayed as „accused persons’ only when
a reference is made either by the
Magistrate while passing an order of
commitment or by the learned Sessions
Judge to the High Court and the High
Court, on examining the materials,
comes to the conclusion that sufficient
materials exist against them even
though the police might not have filed
charge-sheet, as has been explained in
the latter three-Judge Bench decision.
Neither of the contingencies has arisen
in the case in hand.
12. In the present case, if the order passed by
the Chief Judicial Magistrate, Mathura, in
issuing summons against the appellant on the
complaint filed by Respondent 2 complainant,
which has been confirmed by the High Court, is
allowed to stand, it would mean addition of the
appellant to the array of the accused in a
pending case before the Sessions Judge at a
stage prior to collecting any evidence by that
court. This course is absolutely impermissible in
view of the law laid down by a three-Judge
Bench of this Court in Ranjit Singh(supra).
16. In Jile Singh(Supra), wherein the facts are
somehow akin to the present case, the son of the
Informant was found murdered and FIR was lodged by
CRLREV No.587 of 2023 Page 33 of 59
him against unknown person, but on a conclusion of
investigation, the IO submitted charge-sheet naming
one Hari Singh as an accused for having committed the
murder of the son of the Informant and on the basis of
material collected by the IO, no case was found out
against Jile Singh who was accordingly stated by the IO
to have been falsely implicated in the course
investigation and accordingly, the learned CJM, Mathura
committed the accused Hari Singh to the Court of
Sessions Judge, Mathura for trial, but the Informant
instituted a complaint U/S. 200 CrPC against Jile Singh
and one Jayveer Singh for the murder of his son and in
such complaint, the learned CJM, Mathura after
recording the statements U/S. 202 CrPC, issued
summons to Jile Singh who being aggrieved, filed the
criminal revision before the Allahabad High Court which
came to be dismissed and thereby, leading to Jile Singh
to approach the Apex Court in Criminal Appeal No. 121
of 2012 (Jile Singh v. State of Uttar Pradesh),
wherein after analyzing the aforesaid facts, the Apex
CRLREV No.587 of 2023 Page 34 of 59
Court referring to the decision indicated above has held
in paragraph 13 as under:-
“13. The stage of Section 209 CrPC having been
reached in the Case, it was not open to the
Chief Judicial Magistrate, Mathura to exercise
the power under Section 204(1)(b) CrPC and
issue summons to the appellant (Jile Singh).
The order of the Chief Judicial Magistrate,
Mathura is totally without jurisdiction.”
17. The aforesaid conclusion arrived at by the
Apex Court makes it clear that once the Magistrate
commits the case record to the Court of Sessions, it was
not open for him to exercise jurisdiction to issue
summons to other person as an accused when the Court
of Sessions is in seisin over the said case. What is the
stage at which power U/S 319 CrPC can be exercised
has been answered by Apex Court in Hardeep Singh
(supra) by recording conclusion at paragraph-117.1
that “in Dharam Pal (supra) case, the Constitutional
Bench has already held that after committal, cognizance
of offence can be taken against a person not named as
an accused, but against whom materials are available
from the papers filed by the police after completion of
CRLREV No.587 of 2023 Page 35 of 59
investigation. Such cognizance can be taken U/S. 193
CrPC and the Sessions Judge need not wait till
“evidence” U/S. 319 CrPC becomes available for
summoning an additional accused”. The upshot of
aforesaid conclusion is on the basis that there cannot be
a committal of case without there being an accused
person before the Court, but this only means that before
a case in respect of an offence is committed, there must
be some accused suspected to be involved in the crime
before the Court, but once the case in respect of offence
qua those accused who are before the Court is
committed then the cognizance of offence can be said to
have been taken properly by the Court of Sessions and
the bar U/S. 193 of CrPC would automatically get lifted
and the said Court can summon the additional person(s)
who appear to be involved in the crime, but not facing
the trial along with those who had already facing the
trial and such implied cognizance taken by Court of
Sessions is incidental to the normal process as provided
in Sec. 319 of CrPC.
CRLREV No.587 of 2023 Page 36 of 59
18. In this case, the learned JMFC on receipt of
first protest petition directed for further investigation,
but he instead of waiting the result of the further
investigation, committed the case qua other accused
persons to the Court of Sessions leading to the present
controversy. This Court is never in dilemma that the
Magistrate has ample power to direct further
investigation even at the post cognizance stage, until
trial commences with framing of charge, but it was
desirable for him, more particularly in a Sessions case to
wait for the result of the further investigation when he
directs for further investigation pending committal of the
case record to the Court of Sessions, otherwise such
controversy is bound to occur. In order to avoid such
situation like this, it would have been better for the
learned JMFC who has directed for further investigation,
but committed the case record qua the other accused
persons against whom charge-sheet/police report have
been filed pending further investigation, to
commit/submit the case record on receipt of police
CRLREV No.587 of 2023 Page 37 of 59
report in the matter of further investigation along with
the documents and the protest petition together with the
statements U/Ss. 200 and 202 of CrPC in case the
complainant was not satisfied with the result of the
further investigation, for taking necessary action at the
end of the Court of Sessions in terms of Provision of
Chapter-XVIII of CrPC, but the learned Magistrate should
not have taken cognizance of offence for second time.
19. In Kishori Singh(supra), three appellants
were named as accused in the FIR, but they had not
been charge-sheeted and the offence in question was
one, which was triable by a Court of Sessions and the
learned Magistrate upon finding grounds to proceed
against the accused persons by an order dated
10.06.1997 took cognizance of offences U/Ss.
302/34/324 and 448 of IPC and Sec. 27 of Arms Act,
however, the Magistrate subsequently issued non-
bailable warrants of arrest against the three appellants.
On the above background of facts and by referring to the
expression that “accused persons” would obviously
CRLREV No.587 of 2023 Page 38 of 59
mean to those accused persons against whom the police
had filed charge sheet, the Apex Court in Kishori
Singh(supra) has held in paragraph-9 as under:-
“9. After going through the provisions of the
Code of Criminal Procedure and the aforesaid
two judgments [Raj Kishore Prasad(supra)
and Ranjit Singh (supra)] and on examining
the order dated 10-6-1997 passed by the
Magistrate, we have no hesitation to come to
the conclusion that the Magistrate could not
have issued process against those persons who
may have been named in the FIR as accused
persons, but not charge-sheeted in the charge-
sheet that was filed by the police under Section
173 CrPC.”
20. It is not out of place to mention here that
even though the Magistrate takes cognizance of offence
in respect of the accused persons named in the charge-
sheet, however, the Court of Sessions on receipt of the
case record upon committal to it has ample jurisdiction
to take cognizance of offence of the persons not named
as offender, but whose complicity in the case would be
evident from the materials available on record and even
without recording evidence, the Sessions Judge may
summon those persons not named in the police report to
stand trial along with those already named therein and
CRLREV No.587 of 2023 Page 39 of 59
the aforesaid conclusion of law was clearly laid down by
the Apex Court in paragraph 40 of the decision rendered
by a Constitutional Bench of five Judges in Dharam
Pal(supra):-
“40. In that view of the matter, we have no
hesitation in agreeing with the views expressed
in Kishun Singh‟s case[Kishun Singh v. State
of Bihar; (1993) 2 SCC 16] that the Sessions
Court has jurisdiction on committal of a case to
it, to take cognizance of the offences of the
persons not named as offenders but whose
complicity in the case would be evident from
the materials available on record. Hence, even
without recording evidence, upon committal
under Section 209, the Sessions Judge may
summon those persons shown in column 2 of
the police report to stand trial along with those
already named therein.
21. The aforesaid legal conclusion although was
very much available to the Court of Sessions, but no
such power has been invoked to arraign the present
Petitioner as an accused, however, the aforesaid remedy
to arraign the Petitioner as an additional accused is not
at all foreclosed since the provision of Sec. 319 of CrPC
is still available as the trial against absconding accused
has not yet commenced, but for exercise of such power
is further subject to satisfaction of the Court within the
CRLREV No.587 of 2023 Page 40 of 59
legal parameters as required therein. It is also not
denied that neither the Sessions Court was moved nor
did it invoke the power as contemplated U/S. 319 of
CrPC to arraign the petitioner as an accused even after
recording of evidence in the case record upon its
committal.
22. In coming back to the applicability of the
decisions relied on by OP No.2 in H.S. Bains(supra),
the Apex Court therein has held that a Magistrate who
on receipts of a complaint, orders an investigation U/S
156(3) and receives a police report U/S. 173(1), may,
thereafter, do one of the three things: (i) he may decide
that there is no sufficient ground for proceeding further
and drop action; (ii) he may take cognizance of the
offence under Section 190(1)(b) on the basis of the
police report and issue process; this he may do without
being bound in any manner by the conclusion arrived at
by the police in their report; (iii) he may take cognizance
of offence U/S. 190(1)(a) on the basis of the original
complaint and proceed to examine upon oath the
CRLREV No.587 of 2023 Page 41 of 59
complainant and his witnesses U/S. 200. If he adopts
the third alternative, he may hold or direct an inquiry
U/S. 202 if he thinks fit. Thereafter, he may dismiss the
complaint or issue process, as the case may be. This
Court is quite conscious and alive with the aforesaid
principles as laid down by the Apex Court in H.S.
Bains(supra), but the facts involved in this case is
quite different inasmuch as the learned JMFC, Salipur
upon receipts of police report took cognizance of
offences on 04.05.2021 without disagreeing with the
conclusion arrived at by the Investigating Officer and
subsequently, thereafter, on receipt of first protest
petition, the learned Magistrate directed for further
investigation on 25.08.2021, but on receipt of final
report in respect of further investigation, the learned
Magistrate proceeded to entertain a second protest
petition without accepting or refusing the final report
submitted on further investigation and took cognizance
of offence again, even after two years of committing the
case record to the Court of Sessions. In such situation,
CRLREV No.587 of 2023 Page 42 of 59
the fact of the present case is found distinguishable to
the facts involved in H.S. Bains(supra). In addition,
the Opposite Party No.2 also relies heavily on Nahar
Singh (supra) to contend that the Magistrate was not
in error in taking cognizance of offence on second
protest petition and issuing process against the
Petitioner. True it is that on receipt of police report, the
Magistrate is duty bound to find out the complicity of
any person apart from those who are charge-sheeted
and in case, the Magistrate comes to a conclusion that
there is clinching evidence supporting the allegation
made against some persons who have not been charge-
sheeted, he can certainly proceed against such person
by summoning them. Similarly at the cost of repetition,
it has been held by the Apex Court in Dharam
Pal(supra) that the Sessions Judge upon receipt of
record on committal can also proceed against those
persons who have not been charge-sheeted, but has
been named or not named in the FIR provided their
complicity in commission of offence is found out on the
CRLREV No.587 of 2023 Page 43 of 59
basis of material produced by the Investigating Agency.
Hence, the decision laid down in Nahar Singh(supra),
rather supports the case of the Petitioner than of OP
No.2 inasmuch as the Petitioner never disputes the
position of law that the Magistrate may act on the basis
of a protest petition that may be filed and commit the
case record to the Court of Sessions, if the offences are
triable by Court of Sessions and the power of Magistrate
is not exercisable only in respect of persons whose
names appear in column 2 of the charge sheet, but
against those who are not arraigned as an accused in
the police report, however, the present case relates to
summoning of the Petitioner in the case which has
already committed to Court of Sessions near about two
years before the date of such summoning and more
particularly, when the Court of Sessions is in seisin of
the trial and that too, on the basis of second order of
taking cognizance of offence on consideration of second
protest petition, and statements of complainant and
witnesses recorded U/Ss. 200 and 202 CrPC which
CRLREV No.587 of 2023 Page 44 of 59
assumes significance in this situation, especially when
the complainant and witnesses have already tendered
their evidence in the trial before the Court of Sessions
prior to filing of second protest petition, so also before
their examination in the enquiry in such protest petition
as well as no power U/S. 319 of CrPC being invoked
even after such stage has already been reached before
institution of the second protest petition.
23. This Court is also conscious of the significant
change brought in the provision of cognizance of offence
by a Court of Sessions as laid down in Sk.
Latfur(supra), which lays down that earlier under old
Code (CrPC), the accused was committed, whereas the
case is required to be committed in the new Code
(CrPC). Thus, when Sec. 193 of CrPC read in
juxtaposition with Sec. 209 of CrPC, it appears that it is
the case of the accused that is committed to the Court of
Sessions, but not the accused. Hence, once the case is
committed to the Court of Sessions by a Magistrate
under the CrPC, the restriction as placed on the power of
CRLREV No.587 of 2023 Page 45 of 59
Court of Sessions to take cognizance of offence as a
Court of original jurisdiction gets lifted and on committal
of the case U/S. 209 of CrPC, the Bar U/S. 193 gets
lifted and thereby, investing the Court of Sessions with
complete and unfettered jurisdiction of the Court of
original jurisdiction to take cognizance of offence which
would include the summoning of the person or persons
whose complicity in the commission of crime can prima
facie be gathered from the materials available on record.
It is obviously true that cognizance of offence is taken,
but not against the offender. However, applying the law
laid down by the Apex Court in Dharam Pal (supra),
the summoning of accused not named in the police
report, but whose complicity is found on the basis of
materials collected by the Investigating Agency is to be
understood in the context of taking cognizance of
offences committed by the said accused persons not
named as offender in the charge-sheet, but whose
complicity is evident from the materials available on
record. It is, however, reminded here that if cognizance
CRLREV No.587 of 2023 Page 46 of 59
is to be taken of the offence, it could be taken either by
the Magistrate or by the Court of Session. It has also
been held by Dharam Pal(supra) that once the case is
committed to the Court of Sessions by the learned
Magistrate, the Court of Sessions assumes original
jurisdiction and all that goes with assumption of such
jurisdiction. From a careful conspectus of discussions
made hereinabove together with precedents as laid
down by the Apex Court in Dharam Pal, Hardeep
Singh, Balveer Singh, Jile Singh and Kishori
Singh(supra) which have been referred to above, the
only answer to the questions as formulated is that the
jurisdictional Magistrate cannot take cognizance of
offences for the second time during the currency/validity
of the first cognizance order even on a protest petition
and such Magistrate cannot issue process against a
person as an additional accused irrespective of the facts
whether he is named or not named in the FIR, but not
charge-sheeted, once the Magistrate commits the case
record to the Court of Sessions after taking cognizance
CRLREV No.587 of 2023 Page 47 of 59
of offences by issuing process against the accused
persons named in the police report U/S. 173(2) of the
CrPC and in such situation, it is the only the Court of
Sessions which assumes original jurisdiction in the
matter to add such person(s) as an additional accused
whose name(s) was/were left out by the police while
submitting report U/S. 173(2) of the CrPC or by the
learned Committing Magistrate for not sending the
additional accused for trial at the time of commitment,
but his/their (additional accused) complicity in
commission of offence is well made out and, therefore,
the Magistrate after committing the case record the
Court of Sessions being functus officio in the matter, all
the actions taken by him in the same case record are
without jurisdiction, but the aforesaid conclusion is not
applicable in case of absconding accused against whom
the original case record is separated/split off or such
accused person is brought on record on further
investigation in terms of Sec. 173(8) of CrPC. The two
CRLREV No.587 of 2023 Page 48 of 59
questions as formulated by this Court are answered
accordingly.
24. Law is also equally well settled and reiterated
by the Apex Court in Suresh Garodia(supra) that the
learned Magistrate while exercising his power U/S. 190
of CrPC, is not bound to accept the final report of the IO.
However, if the learned Magistrate disagrees with the
finding of the IO, the least that is expected of him is to
give reasons as to why he disagrees with such report
and as to why he finds it necessary to take cognizance
despite the negative report submitted by the IO. In the
present case, neither in his order dated 04.05.2021 on
receipt of police report nor in his order dated 25.09.2023
on second protest petition, the learned Magistrate has
whispered a single word as to why he agrees or
disagrees with the conclusion arrived at by the IO in the
course of investigation on the FIR or in the course of
further investigation respectively. Further, the learned
Magistrate in his order dated 04.05.2021 has simply
accepted the police report on the FIR and took
CRLREV No.587 of 2023 Page 49 of 59
cognizance of offences without disclosing/assigning any
reason in respect of IO not charge-sheeting the
Petitioner. Similarly, in his order dated 25.09.2023, the
learned JMFC, Salipur has not made any reference to the
final report submitted by the IO in the matter relating to
further investigation on the allegation against the
Petitioner, although such report discloses specific action
taken by the IO in the course of further investigation.
25. The powers of Magistrate to summon a person
not charge-sheeted as accused person is very much
apparent that once he takes cognizance of offence, it is
not obviously against any offender and after he takes
cognizance of offence, it is his duty to find out who the
offenders really are, but once he comes to a conclusion
that apart from those accused persons sent up by the
police to the Court, some others are still available and
involved, the Magistrate is duty bound to proceed
against those persons. The summoning of additional
accused is part and parcel of the proceeding initiated by
his taking cognizance of an offence. In this regard, this
CRLREV No.587 of 2023 Page 50 of 59
Court is alive with the observation made in Sk. Latfur,
wherein it has been held in paragraph-7 that a
Magistrate trying a warrant case as also a Court of
Session having once validly taken cognizance of offence
on the basis of a police report(when considering material
before it for framing of a charge) is not only entitled, but
indeed, duty bound to summon a person as an accused
to stand trial before it if it is fully satisfied of the
existence of a prima facie case against an additional
accused who may not have been sent up as such. In this
case, the learned JMFC, Salipur neither has exercised
such jurisdiction suo motu nor has he recorded any
disagreement with the report of the police submitted
U/S. 173(2) of CrPC on the two occasions i.e. after initial
round of investigation and further investigation. It needs
to be highlighted that when a person is named in the FIR
by the complainant, but police after investigation finds
no role of that particular person and files the charge
sheet without implicating him, the Court is not powerless
and at that stage of summoning, if the Court finds that a
CRLREV No.587 of 2023 Page 51 of 59
particular person should be summoned as accused, even
though not named in the charge sheet, it can do so. At
that stage, chance is also given to complainant to file
protest petition urging upon the Court to summon other
persons who were named in the FIR, but not implicated
in the charge sheet. Once that stage has gone, the Court
is still not powerless by virtue of power U/S 319,
however, the power therein gets triggered when during
the trial some evidence surfaces against the proposed
accused.
26. The concept fairness in criminal jurisprudence
not only includes the right of accused, but also that of
the complainant. It is also equally important that a
person accused of offence is not found out to be
involved for commission of the offence has a right not to
face the rigmarole of trial and such right definitely flows
from Article 21 of the Constitution of India. Further, the
right of the de-facto complainant is no less important
and deserves equal acceptance in the context of his
grievance, but such grievance must stand to the legal
CRLREV No.587 of 2023 Page 52 of 59
scrutiny, otherwise a failure of justice may be
occasioned in accepting the claim of the complainant
without any legal scrutiny. In the present case, the only
allegation against the petitioner is for his involvement in
conspiracy, but the police after two rounds of
investigation did not find the complicity of petitioner,
nonetheless the FIR allegation against the petitioner is
for threatening to kill the informant and his father which
was disclosed by the deceased to his son-cum-informant
just four days before the occurrence. What is significant
in this case is that the learned Magistrate, Salipur while
accepting the police report U/S. 173(2) of CrPC in taking
cognizance of offences has not disagreed with such
report of the IO, nonetheless later on he had ordered for
further investigation on the complaint of first
complainant and also monitored the investigation by
asking about preservation of CDR on the prayer of the
first complainant. The second round of investigation
which was specifically directed for further investigation
with regard to conspiracy did not find the complicity of
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the petitioner even after CDR analysis, but the learned
JMFC, Salipur even thereafter directed for issuance of
process against the petitioner as an additional accused
by taking cognizance of offences for second time when
the court of Sessions was in seisin over the matter,
which in the circumstances appears to be not only
erroneous, but cannot stand to the legal scrutiny. What
cannot be forgotten in the context is that the Apex Court
in paragraph-28 of the decision in Pepsi Foods Ltd.
and another vrs. Special Judicial Magistrate and
others; (1998) 5 SCC 749 has held thus:-
“28.summoning of an accused in a
criminal case is a serious matter. Criminal law
cannot be set into motion as a matter of course.
It is not that the complainant has to bring only
two witnesses to support his allegation in the
complaint to have the criminal law set into
motion. The order of the Magistrate summoning
the accused must reflect that he has applied his
mind to the facts of the case and the law
applicable thereto. He has to examine the nature
of allegation made in the complaint and the
evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home
to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of
preliminary evidence before summoning the
accused. The Magistrate has to carefullyCRLREV No.587 of 2023 Page 54 of 59
scrutinized the evidence brought on record and
may even himself put questions to the
complainant and his witnesses to elicit answers
to find out the truthfulness of the allegations or
otherwise and then examine if any offence is
prima facie committed by all or any of the
accused”.
27. Similarly, in Birla Corporation Ltd. vrs.
Adventz Investments and Holdings Limited and
others; (2019) 16 SCC 610, the Apex Court at
Paragraph-33 has held as under:-
“33. The order of the Magistrate
summoning the accused must reflect that he
has applied his mind to the facts of the case
and law applicable thereto. The application of
mind has to be indicated by disclosure of
mind on the satisfaction. Considering the
duties on the part of the Magistrate for
issuance of summons to the accused in a
complaint case and that there must be
sufficient indication as to the application of
mind”.
28. In this premises, when the summoning of an
accused in a criminal case is held to be a serious matter,
but the present petitioner in this case has been
arraigned as an additional accused and that too, at a
stage on second protest petition after examination of the
complainant and witnesses in the trial of such case
CRLREV No.587 of 2023 Page 55 of 59
record after its commitment when the Court of Sessions
was in seisin over the matter, which cannot be
considered lightly, rather the same deserves to be
considered in a higher pedestal of Article 21 of the
Constitution of India and the aforesaid situation gains
serious momentum when the answer to the questions so
formulated in this case favour the plea of the petitioner
which in the circumstance needs to be examined on the
context of the serious contention of OP No.2 that the
proceeding against the petitioner cannot be quashed in
exercise of power of revisional jurisdiction since the
powers of the Court U/Ss. 397/401 of CrPC is quite
distinguishable and different from that of Sec.482 of
CrPC. The answer to the aforesaid challenge of OP No.2
is provided in the decision relied on by the petitioner in
Popular Muthiah vrs. State represented by
Inspector of Police; (2006) 7 SCC 296, wherein the
Apex Court at paragraphs-29 & 30 has held as under:-
“29. The High Court while, thus,
exercising its revisional or appellate power, may
exercise its inherent powers. Inherent power of the
CRLREV No.587 of 2023 Page 56 of 59
High Court can be exercised, it is trite, both in
relation to substantive as also procedural matters.
30. In respect of the incidental or
supplemental power, evidently, the High Court can
exercise its inherent jurisdiction irrespective of the
nature of the proceedings. It is not trammeled by
procedural restrictions in that;
(i) Power can be exercised suo
motu in the interest of justice. If such a power
is not conceded, it may even lead to injustice to
an accused.
(ii) Such a power can be
exercised concurrently with the appellate or
revisional jurisdiction and no formal application
is required to be filed therefor.
(iii) It is, however, beyond any
doubt that the power under Section 482 of the
Code of Criminal Procedure is not unlimited. It
can inter alia be exercised where the Code is
silent, where the power of the court is not
treated as exhaustive, or there is a specific
provision in the Code; or the statute does not
fall within the purview of the Code because it
involved application of a special law. It acts ex
debito justitiae. It can, thus, do real and
substantial justice for which alone it exists.
It is, therefore, very clear that even though the
petitioner has knocked the door of this Court by invoking
revisional jurisdiction, but the same is not a fetter
creating Bar against use of jurisdiction by this Court U/S.
482 of CrPC, if the situation so demands or in the
interest of justice. In this case, not only the order
impugned is unsustainable in the eye of law, but also the
CRLREV No.587 of 2023 Page 57 of 59
proceeding initiated against the petitioner in 1CC No. 11
of 2023 is absolutely without jurisdiction, since the
learned JMFC, Salipur after committing the case record
to the Court of Sessions without disagreeing with the
report submitted by the IO U/S. 173(2) of CrPC has no
jurisdiction to add the petitioner as an additional
accused who was not charge-sheeted even after two
rounds of investigation, more particularly when the
Court of Sessions has already assumed jurisdiction over
the matter after commitment and thereby, it was the
Court of Sessions who could have passed order to add
the petitioner as an additional accused, but the Court of
Sessions had neither invoked its power nor was it moved
to arraign the petitioner as an additional accused even
after recording of evidence, which in the circumstance
gives rise to an reasonable presumption that there was
no material to proceed against the petitioner as an
additional accused even on the evidence of complainant
and witnesses cited in the second protest petition in the
Sessions trial record. In the interest of justice, the
CRLREV No.587 of 2023 Page 58 of 59
impugned order being unsustainable together with
proceeding against the petitioner in 1CC No. 11 of 2023
is liable to be quashed.
29. Resultantly, the criminal revision stands allowed
on contest, but no order as to costs. Accordingly, the
impugned order dated 25.09.2023 passed by learned
JMFC, Salipur in 1CC No. 11 of 2023 and the entire
criminal proceeding against the petitioner therein are
hereby quashed.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 1st day of October, 2024/Kishore
Signature Not Verified
Digitally Signed
Signed by: KISHORE KUMAR SAHOO
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 01-Oct-2024 17:11:28
CRLREV No.587 of 2023 Page 59 of 59