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Kishan Rao Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 337 of 1965
Judge
Reported inAIR1966Mys241; 1966CriLJ1033; (1968)2MysLJ421
ActsIndian Penal Code (IPC), 1860 - Sections 409; Code of Criminal Procedure (CrPC) , 1898 - Sections 251-A
AppellantKishan Rao
RespondentState of Mysore
Excerpt:
.....not open to the court to substitute the word carpet area in place of plinth area used by the parliament in interpreting the aforesaid statutory provisions. if such a thing is permitted, it would amount to court re-writing the section and the reading carpet area in place of plinth area which is not permissible in law. - the matter is not governed by any such principle as of res judicata and the learned magistrate failure to take cognizance of the offence on the earlier report did not prevent his taking cognizance of the offence on the subsequent report. the explanation to the said section clearly says that the discharge of the accused or dismissal of the complaint or stopping of proceedings against him would not amount to acquittal. it is well settled that even after the court had..........the petitioner, has contended that the learned magistrate had no jurisdiction to proceed with the charge-sheet as he had earlier accepted the 'b' report submitted by the police and ordered that the case be closed. he argues that the order of the learned magistrate is a judicial order and the magistrate is not entitled to review the same. he states that in the instant case there is no dispute that no fresh investigation was made or new material discovered by the police after the submission of the 'b' report to justify the reopening of the matter and filing of a fresh charge-sheet. he contends that the view of the lower court that the order passed by it accepting the 'b' report is only an administrative order, is wrong. finally he submits that even assuming that the magistrate had power.....
Judgment:
ORDER

(1) The petitioner before this Court is the accused in the trial Court. A charge-sheet was laid against him by the Station House Officer, Gangavathi before the learned First Class Magistrate, Gangavathi, alleging that he had committed an offence under S. 409 I.P.C. The learned Magistrate took cognizance of the offence and wanted to proceed with the case under section 251-A of the Code of Criminal Procedure. A petition was presented on behalf of the accused contending that the Court had no power to proceed with the case, as earlier, the learned Magistrate had accepted the 'B' Report submitted by the Police with regard to the same offence.

(2) Sri M.M. Jagirdar learned counsel for the petitioner, has contended that the learned Magistrate had no jurisdiction to proceed with the charge-sheet as he had earlier accepted the 'B' Report submitted by the police and ordered that the case be closed. He argues that the order of the learned Magistrate is a judicial order and the Magistrate is not entitled to review the same. He states that in the instant case there is no dispute that no fresh investigation was made or new material discovered by the police after the submission of the 'B' Report to justify the reopening of the matter and filing of a fresh charge-sheet. He contends that the view of the lower Court that the order passed by it accepting the 'B' Report is only an administrative order, is wrong. Finally he submits that even assuming that the Magistrate had power to take cognizance and proceed with the charge-sheet, since no fresh material or evidence has been discovered against the petitioner, it is a clear case of abuse of the process and the High Court should quash the said proceedings.

(3) Sri Jagirdar has relied on State v. Muralidhar Govardhan, AIR 1960 Bom 240 in support of his contention that the acceptance or refusal by a Magistrate 'B' Report submitted by the police is a judicial order and not an administrative one. In that case, their Lordships of the Bombay High Court have stated that an order passed by the Magistrate on a report under section 173(1) Cr.P.C. requesting that summary 'A', 'B' or 'C' be issued is in its very nature a judicial order and not an administrative order. This position is not controverted by the learned High Court Government Pleader. There is no doubt that an order passed by the Magistrate accepting the 'B' report is a judicial order and not an administrative order.

(4) The learned High Court Government Pleader contends that there is no limitation placed on the power of the Magistrate to take cognizance of an offence. He argues that there is no provision in the Code of Criminal Procedure prohibiting a Magistrate from taking cognizance of an offence even though he has accepted the 'B' report. If the Magistrate had legal power to take cognizance of the offence in the circumstances mentioned, the act of the Magistrate in taking cognizance cannot be said to be either arbitrary or erroneous. He also contends that if the law clothes the Magistrate with the power to take cognizance of the offence, the argument that it is abuse of the process of the Court is not open to the petitioner. He also argues that the petitioner cannot invoke the inherent power of this Court under S. 561-A of the Code of Criminal Procedure, to strike down any order passed by the lower Court as an abuse of the process of the Court, as he has not applied under S. 561-A Cr.P.C. but invoked the revisional Jurisdiction of the Court under S. 439 Cr.P.C. He has strongly relied on a Bench decision in Rama Shankar v. State of Uttar Pradesh, : AIR1956All525 in support his contention that even after the acceptance of the 'B' Report, a Magistrate has power to take cognizance of the same offence.

(5)The facts in Rama Shanka's case, : AIR1956All525 are analogous to the facts of the instant case. After investigation, the police first submitted the first report, but later on, they submitted a charge-sheet and wanted to proceed with the trial of the accused. An objection was raised that the learned Magistrate had no competence to take cognizance of the charge-sheet. Considering this question, at page 527, Column 1 their Lordships observed as follows:

'The law does not require a Magistrate to take into consideration whether previously the investigating officer had reported that the first information report had not been found to be true or whether he had been directed by the District Magistrate to submit a charge-sheet instead of a final report.

'It is not known whether the final report had reached the learned Magistrate or not. We assume that it had and he had accepted it. But even then he was not barred by any law from taking cognizance on a subsequent report, provided it mentioned facts constituting the offence. The matter is not governed by any such principle as of res judicata and the learned Magistrate failure to take cognizance of the offence on the earlier report did not prevent his taking cognizance of the offence on the subsequent report. A first class Magistrate's power to take cognizance are vast and the law has placed no limits on them.'

(6) With respect, I agree with the observations made by their Lordships quoted above. There is no provision in the Code of Criminal Procedure prohibiting a Magistrate from taking cognizance of a charge-sheet and proceedings with the trial of the case, even though 'B' Report submitted by the Police had been accepted by him. Section 403 of the Code of Criminal Procedure lays down that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall not be tried for the same offence. A fresh trial is barred only if there is a conviction or acquittal of the offence. The Explanation to the said section clearly says that the discharge of the accused or dismissal of the complaint or stopping of proceedings against him would not amount to acquittal. It is well settled that even after the Court had examined witnesses and then discharged the accused, it is legally permissible for the Court to entertain a fresh complaint and proceed with the trial of the same offence without the discharge order being set aside. Even though the complaint had been dismissed, it will not act as a legal bar for filing a fresh complaint or the Court taking cognizance of the same. This being the legal position, it cannot be said that the order of the learned Magistrate is illegal or is an abuse of the process of the Court. I am therefore of opinion that there is no merit in the contentions urged by Sri Jagirdar on behalf of the petitioner.

(7) In the result, this revision petition fails and the same is dismissed.

(8) Revision dismissed.


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