TMI Blog2013 (5) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... grave. But, an eloquent one, the complainant with his committed and adroit endeavour has allowed the cause to rise like a phoenix from the grave by invoking the jurisdiction of this Court assailing the order passed by the High Court of Judicature of Rajasthan at Jodhpur in Criminal Revision No. 327 of 2011 whereby the learned single Judge by order dated 13.8.2012 accepted the plea of the accused-respondent and quashed the charges framed against him for the offences punishable under Sections 323, 324and 307 of the Indian Penal Code (for short IPC ) not on the substratum of merits but on the foundation that the order dated 19.11.2008 passed by the learned Additional Chief Judicial Magistrate taking cognizance and issuing summons had already been set aside by the Additional District and Sessions Judge, No. 1, Jodhpur, in Criminal Revision No. 7 of 2009 and, therefore, the principle when the infrastructure collapses, the superstructure is bound to collapse got attracted. As it appears, though the High Court noticed the various dates, the suppression of facts and the factum that the accused being fully aware that the charges had been framed in Sessions Case No. 9 of 2009 by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , namely, Shyam Lal and Prem Prakash, were sent up for trial and the matter was dealt with by the learned Additional District and Sessions Judge, No. 3, Jodhpur who, on 27.7.2009, heard the learned counsel for the parties, the Public Prosecutor and after dwelling upon the allegations in the FIR, considering the involvement of the accused persons in the crime in question, taking note of the nature of injuries, adverting to the ingredients of the offence under Section 307 IPC, prima facie appreciating the credibility of the witnesses and many other factors, held as follows: - .......looking to the facts and circumstances of the case, in the perspective of the principle propounded in the abovementioned rulings, prima facie, it appears that due to the reason of old enmity the accused persons have inflicted a number of injuries by the sharp weapon on the body of the victim and therefrom it is clear that common intention of the accused persons was to attempt to commit the murder of the victim Dinesh Kumar. At this stage, it is not appropriate to minutely and critically appreciate the evidence. From the guidance sought from the abovementioned rulings, it is clear that at this stage c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be sustained. However, as stated earlier, he granted liberty to the prosecution to file an application under Section 319 of the Code for summoning the additional accused at the appropriate stage. Be it noted, the High Court has also observed that the order passed in revision setting aside the order of cognizance was not justified in law. 10. Ms. Madhurima Tatia, learned counsel for the appellant, has submitted that when the accused has not approached the court in clean hands and the High Court itself has observed that the order setting aside the order of cognisance was not justified, it should not have interfered with the order passed by the learned trial Judge declining to discharge the accused. Per contra, Mr. Rishabh Sancheti, learned counsel for the respondent No. 1, would contend that the order passed by the High Court in revision is absolutely impeccable inasmuch as once the order taking cognizance had gone unchallenged, it was obligatory on the part of the High Court to direct a discharge. That apart, it is urged by him that the learned Magistrate could not have taken cognizance in exercise of power under Section 190 of the Code of Criminal Procedure. Mr. Imtiaz Ahmed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. In M/s. India Carat Pvt. Ltd. v. State of Karnataka and another (1989) 2 SCC 132, a three-Judge Bench, after analyzing the provisions of the Code, referred to the decisions in Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117 and H.S. Bains v. State (1980) 4 SCC 631 and, eventually, ruled thus: - The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers under Section 190(1)(b)CrPC. 16. In the said case, while dealing with the pendency of a reference before a larger Bench and also adverting to the pending reference in relation to the lis, the Court observed as follows: - ...it is not necessary to wait for the outcome of the result of the reference made to a larger Bench in Dharam Pal case. The reference is with regard to the Magistrate s power of enquiry if he disagreed with the final report submitted by the investigating authorities. The facts of this case are different and are covered by the decision of this Court in India Carat (P) Ltd. following the line of cases from Abhinandan Jha v. Dinesh Mishra onwards. 17. In view of the aforesaid enunciation of law, we are of the considered view that the order taking cognizance cannot be found fault with. We may hasten to clarify that the learned Additional Chief Judicial Magistrate has taken cognizance on the basis of facts broug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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