(A) Criminal Procedure Code, 1973, S.190 & S.193–Taking of Cognizance-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 JMIC 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–
(i) That it would be a case where 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.
(ii) 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.
(iii) Since, 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; Order of taking cognizance upheld by Supreme court.
(B) Criminal Procedure Code, 1973, S.190 &S.193–Taking of Cognizance-Even if the case is triable by the Court of Session, the function of the Magistrate is not to act merely as a post office and commit the case to the Court of Session, but he is also empowered to take cognizance, issue process and summon the accused and thereafter commit the case to the Court of Session.
(C) Criminal Procedure Code, 1973, S.190 & S.193–Taking of Cognizance- Sessions Judge is entitled to issue summons under Section 193 of the Code ‘as a Court of original jurisdiction—This was notwithstanding the fact that the Magistrate had taken cognizance and only thereafter committed the case to the Court of Session.
However, cognizance of an offence can only be taken once and in the event a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking first cognizance of the offence (hereafter would not be in accordance with law-Provisions of Section 209 of the Code will have to be understood to mean that the Magistrate plays 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.
Balveer Singh & Anr. v. State of Rajasthan & Anr.
2016(3) Law Herald (P&H) 2307 (SC) : 2016 LawHerald.Org 1165