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2016 (5) TMI 1563 - SC - Indian LawsMurder or suicide - dowry demands - offence under Sections 498-A and 304-B of Indian Penal Code or not - whether the Court of Sessions was empowered to take cognizance of offence under Sections 304-B and 498-A of Indian Penal Code, 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 Indian Penal Code and specifically refusing to take cognizance of offence under Sections 304-B and 498-A Indian Penal Code? HELD THAT:- A bare reading of Section 190 of the Code which uses the expression "any offence" amply shows that no restriction is imposed on the Magistrate that Magistrate can take cognizance only for the offence triable by Magistrate Court and not in respect of offence triable by a Court of Session. Thus, he has the power to take cognizance of an offence which is triable by the Court of Session. If it is so, the question is as to what meaning is to be assigned to the words "as a Court of original jurisdiction" occurring in Section 193 of the Code when Court of Session takes cognizance of any offence. To put it otherwise, when the Magistrate has taken cognizance and thereafter only committed the case to the Court of Session, whether the Court of Session is not empowered to take cognizance of an offence again Under Section 193 of the Code or it still has power to take cognizance acting as Court of original jurisdiction. The Magistrate had no business to discharge the Appellant. In fact, Section 207-A in the old Code of Criminal Procedure, empowered the Magistrate to exercise such a power. However, in Code of Criminal Procedure, 1973, there is no provision analogous to the said Section 207-A. He was bound under law, to commit the case to the Sessions Court, where such application for discharge would be considered. The order of discharge is therefore, a nullity, being without jurisdiction. Here is a case where the Police report which was submitted to the Magistrate, the IO had not included the Appellants as accused persons. The complainant had filed application before the learned Magistrate with prayer to take cognizance against the Appellants as well. This application was duly considered and rejected by the learned Magistrate. The situation in this case is, thus, not where the investigation report/chargesheet filed Under Section 173(8) of the Code implicated the Appellants and Appellants contended that they are wrongly implicated. On the contrary, the Police itself had mentioned in its final report that case against the Appellants had not been made out. Whether this Court exercise its powers under Article 136 of the Constitution to interdict such an order? - HELD THAT:- The order of the Magistrate refusing to take cognizance against the Appellants is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions was, thus, not powerless to pass an order in his revisionary jurisdiction. Things would have been different had he passed the impugned order taking cognizance of the offence against the Appellants, without affording any opportunity to them, since with the order that was passed by the learned Magistrate a valuable right had accrued in favour of these Appellants. However, in the instant case, it is found that a proper opportunity was given to the Appellants herein who had filed reply to the application of the complainant and the Sessions Court had also heard their arguments. Appeal dismissed.
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