Magistrate & Sessions Courts Taking Part Cognizance Against Same Accused For Different Offences Not Permissible: Rajasthan High Court

Rajasthan High Court has held that cognizance can't be taken twice by separate courts for different offenses against the same accused.

The single-judge bench of Justice Anoop Kumar Dhand noted that the act of Additional Sessions Judge who took fresh cognizance against the petitioner Nos.1 to 3 under Sections 307 and 148 of I.P.C, in addition to the offenses falling under Sections 323, 341, 325, 308 and 379 of I.P.C already taken cognizance of by the magistrate, is not in accordance with the law.

“…No doubt, on committal of the case by the Magistrate to the Court of Sessions with reference to Section 209 Cr.P.C., the restrictions on the powers of Court of Sessions…would get lifted… But a conjoint reading of Section 193 and 209 Cr.P.C., would make it clear that the situation wherein part cognizance has been taken by the Magistrate and part cognizance has been taken by the Additional Sessions Judge cannot be held to be legally permissible…”, the bench sitting at Jaipur observed.

Hence, the court inferred that the order of cognizance taken by the Additional Sessions Judge No.17, Jaipur Metropolitan, for new offenses against the first three accused is not legally sustainable, and the order of cognizance taken by ASJ should be set aside to that extent.

It is pertinent to note that the ASJ's order also took cognizance of offences under Sections 307, 323, 341, 325, 308, 379 and 148 of IPC against petitioner nos. 4-9 against whom the Additional Chief Metropolitan Magistrate didn't take cognizance in 2018 since they were not charge-sheeted initially. The chargesheet was prepared based on the F.I.R. registered against the first three accused/petitioners at Police Station Mansarovar, Jaipur. With regard to this part of the order, the High Court held it to be legally permissible and underscored that there was no need to wait for the stage prescribed under Section 319 Cr.P.C.

The court upheld cognizance taken in reference to Petitioners 4-9 by extensively relying on the apex court decisions in Dharam Pal & Ors. v. State of Haryana & Ors. 2014 (3) SCC 306, Balveer Singh v. State of Rajasthan (2016) 6 SCC 680 , and Nahar Singh v. The State of Uttar Pradesh & Anr. 2022 LiveLaw (SC) 291.

Last week, Justice Anoop Kumar Dhand had emphasised in a similar order that a Sessions Court can take cognizance against the accused not yet charge-sheeted by the police without waiting for the stage carved out under Section 319 Cr.P.C.

Coming back to the part of ASJ's order quashed by the single-judge bench, it was observed by the court that the order of cognizance initially taken by the magistrate against petitioners 1-3 was not challenged in any competent court.

“It cannot be said that the Magistrate had played “passive role” while committing the case to the Court of Sessions. He had taken cognizance after due application of mind and played an “active role” in the process..”, the court further noted that the subsequent act of the Additional Sessions Judge tantamounts to taking of cognizance twice for certain different offenses by two Courts at different stages.

Though the court of Sessions/Additional Sessions Judge can exercise power as a Court of “original jurisdiction” after the committal of a case by the Magistrate, it does not mean that part cognizance can be taken for different offenses against the same persons who have already been dealt with by the Magistrate while taking cognizance, the court clarified.

“…the impugned order dated 11.02.2019 stands quashed and set aside qua petitioner Nos.1 to 3 and the same is upheld qua-petitioner Nos.4 to 9. This order, however, would not create any difficulty for the Additional Sessions Judge in invoking its powers under Sections 227 and 228 Cr.P.C. at the stage of passing orders on charges or discharge for the appropriate offences on the basis of material available on the record”, the court concluded.

The court further modified the Additional Sessions Court's order in 2019 by directing that it can secure the appearance of petitioner Nos.4 to 9 through bailable warrants instead of arrest warrants if needed.

For Petitioners: Mr. Rajveer Singh, Adv. Mr. P L Saini, Adv.

For Respondents: Mr. Atul Sharma, PP, Mr. Sankalp Sogani, Adv, Ms. Muskan Verma, Adv.

Case Title: Laxman Singh @ Bunty & Ors. v. State of Rajasthan & Anr.

Case No: S.B. Criminal Revision Petition No. 568/2019

Citation: 2024 LiveLaw (Raj) 61

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