Once Magistrate Takes Cognizance Of Offences He Can't Review His Own Order & Drop/Withdraw Section(s): Allahabad High Court

The Allahabad High Court has observed that once the Magistrate has taken cognizance for offences under certain sections/offences, it has no power to review its own order for dropping section(s) from the cognizance order.

The Bench of Justice Raj Beer Singh observed thus as it upheld an order of the magistrate rejecting an application filed by the accused/petitioner to withdraw cognizance order in connection with one of the offences of the charge sheet (on which the magistrate had earlier taken cognizance). 

The case in brief

Essentially, an FIR was lodged against the petitioner/accused under Section 147, 323, 324, 504 and 506 IPC and during the investigation, section 308 I.P.C. was also added.

After the investigation, police submitted charge sheet for the offences under Section 147, 323, 324, 325, 308, 504, 506 IPC in the Court of C.J.M., Saharanpur and accordingly cognizance was taken.

Thereafter, the accused persons moved an application before the Magistrate alleging that no case under Section 308 I.P.C. is made out, hence cognizance under section 308 I.P.C. be withdrawn. Said application was rejected by the C.J.M. Saharanpur. This order was upheld by the Sessions Judge, Saharanpur in revision.

Now, he had moved the High Court with the instant Article 227 Plea wherein he argued that none of the injuries inflicted on the injured person was dangerous to his life, but despite that, the C.J.M. Saharanpur had taken cognizance under Section 308 IPC, besides the other sections of IPC.

Court's observations

The Court observed that the scope of judicial review in such matters where the orders of Courts below are assailed before the High Court in a writ petition under Article 226/227 of the Constitution is very limited.

The Court referred to several landmark rulings of the Supreme Court on the scope of Article 227, and thereafter, observed thus:

"...the power under article 227 of the Constitution is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. This Power is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence."

Now, applying its observations to the facts of the case, the Court observed that once the Magistrate had taken cognizance for offences under section 147/323/324/325/504/506/308 IPC, it had no power to review its own order for dropping the section 308 IPC from the cognizance.

"Section 308 IPC is a Session triable case and petitioner would have opportunity before the Sessions Court at the time of charge to raise the plea that no offence under section 308 IPC is made out...As observed earlier, in exercise of its extraordinary powers under Article 227 of the Constitution, this Court cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of court below," the Court further noted as it dismissed the plea.

Case title - Jagveer Vs. State Of U.P. And Another [CRIMINAL MISC. WRIT PETITION No. - 718 of 2006]

Case Citation: 2022 LiveLaw (AB) 284

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