Private complaint under Sections 420, 467, 468, 471,120B, 506 of Indian Penal Code, 1860 [hereinafter referred as ‘IPC’ for brevity] and under Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 = The Judicial Magistrate, 1st Class, Gwalior, by Order dated 21.04.2012, dismissed the aforesaid criminal complaint on the footing that there was no sufficient proof on record provided by the appellant/complainant to prove that he belongs to Scheduled Caste or Scheduled Tribe and the dispute between the parties had trappings of civil nature.- in appeal Session court remand the case for fresh consideration – High court dismissed the complaint “…In legal parlance cognizance is taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 312 OF 2018

(arising out of SLP (Crl.) No. 6900 of 2014)

RAJENDRA RAJORIYA … APPELLANT (S)

VERSUS

JAGAT NARAIN THAPAK AND ANOTHER … RESPONDENT (S)

JUDGMENT

N. V. RAMANA, J.

1.Leave granted.

 

2. In this criminal appeal the judgment dated

08.07.2014, passed by the High Court of Madhya

Pradesh, bench at Gwalior in Criminal Revision No.

104/2013 is impugned.

3. Appellant herein filed a complaint before the

jurisdictional police station under Sections 420, 467,

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Reportable

468, 471,120B, 506 of Indian Penal Code, 1860

[hereinafter referred as ‘IPC’ for brevity] and under

Section 3 of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 on the allegations

that one Smt. Vidhyabai and others sold the disputed

land to respondent no. 1 and got the appellant’s

property mutated by committing fraud and forgery. It

was further alleged that the respondents had

threatened the appellant with dire consequence and

swore at them with filthy language intended to

belittle his caste/tribe. It may be noted that the

concerned police station did not take any action on

the aforesaid complaint.

4. Aggrieved by the inaction of the police, the

appellant approached the Jurisdictional Magistrate,

Gwalior, with the same set of facts under Section 200

of Cr.P.C.

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5. The Judicial Magistrate, 1st Class, Gwalior, by

Order dated 21.04.2012, dismissed the aforesaid

criminal complaint on the footing that there was no

sufficient proof on record provided by the

appellant/complainant to prove that he belongs to

Scheduled Caste or Scheduled Tribe and the dispute

between the parties had trappings of civil nature.

6. Aggrieved by the aforesaid dismissal of criminal

complaint, appellant approached Addl. District and

Sessions Judge [hereinafter referred as ‘Sessions

Court’ for brevity] in Criminal Revision No.

242/2012. The Sessions Court, by the order dated

07.12.2012, held that the complainant belonged to

Jatav community which is a Scheduled Caste.

Further the Sessions Court observed that the facts

narrated portray that the respondent no. 1 in

conspiracy with others had transferred the land

belonging to the appellant in an illegal manner.

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Thereafter, concluded that the lower court did not

appreciate the facts as well as the law in a proper

manner and remanded the case in the following

manner: –

This revision is allowed and order dated

21.04.2012 passed by Court is set

aside and case is remanded back with

a direction that if necessary after a

further enquiry keeping in view the

findings given in this order , proper

order be passed with regard to

registration of complaint and to

summon the respondents and for

that directed the parties to remain

present before the Court below on

20.12.2012.

(Emphasis supplied)

7. On remand of the case, Judicial Magistrate, vide

order dated 23.01.2013, while taking cognizance of

the aforesaid offences under Section 420, 467, 471,

120-B of IPC and 3(1)(4) of SC/ST Act, registered the

complaint as Criminal Case No. 1576/2013 and on

23-02-2013, learned Magistrate noted as under4

…the court is required to prima facie

decide question of initiating proceeding

arises or not. It is pertinent that in

this case learned Revisional Court has

prima facie already found sufficient

ground for initiating proceeding

against non-applicants.

(emphasis supplied)

8. In the meanwhile, aggrieved by the remand order

dated 07.12.2012 passed by the Sessions Court and

the order of the Magistrate, dated 23.01.2013, taking

cognizance, the respondent filed revision before the

High Court being Criminal Revision No. 104/2013.

By the impugned judgment dated 08.07.2014, the

High Court allowed the revision petition and quashed

the complaint on the reason that the revisonal court

could not have taken cognizance on 23.01.2013 as the

same was in violation of Section 398 of Cr.P.C.

9. We have heard learned counsels appearing on

behalf of both the parties.

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10. The questions that fall for consideration are in

regard to the legality of the remand order passed by

the Sessions Court and the order of the learned

Magistrate taking cognizance thereafter. As the High

Court has dealt with the validity of both the orders, we

would like to take up the same in seriatum starting

with legality of the remand order.

11. The respondent contends that the learned

Sessions Judge could not have observed on merits as

it amounted to taking cognizance of the matter. Such

contentions although seems attractive, but must be

rejected for reason that the revisional court only had

provided reasons for ordering further enquiry under

Section 398 of Cr.P.C and the observations provided

on merit cannot be said to have an effect of taking

cognizance in this case.

12. At the outset, before we decide the legality of

the remand order, we are required to determine the

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scope of criminal revision under Section 397 read with

Section 398 of Cr.P.C. It would be appropriate to

reproduce Sections 397 and 398 of Cr.P.C herein.

Section 397. Calling for records to

exercise powers of revision.

(1) The High Court or any Sessions Judge

may call for and examine the record of any

proceeding before any inferior Criminal

Court situate within its or his local

jurisdiction for the purpose of satisfying

itself or himself as to the correctness,

legality or propriety of any finding,

sentence or order,- recorded or passed, and

as to the regularity of any proceedings of

such inferior Court, and may, when calling

for such record, direct that the execution of

any sentence or order be suspended, and if

the accused is in confinement, that he be

released on bail or on his own bond

pending the examination of the record.

Explanation- All Magistrates whether

Executive or Judicial, and whether

exercising original or appellate jurisdiction,

shall be deemed to be inferior to the

Sessions Judge for the purposes of this

sub- section and of section 398.

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Section 398. Power to order inquiry.

On examining any record under section

397 or otherwise, the High Court or the

Sessions Judge may direct the Chief

Judicial Magistrate by himself or by any of

the Magistrates subordinate to him to

make, and the Chief Judicial Magistrate

may himself make or direct any

subordinate Magistrate to make, further

inquiry into any complaint which has been

dismissed under section 203 of

Sub-Section (4) of section 204 or into the

case of any person accused of an offence

who has been discharged:

Provided that no Court shall make any

direction under this section for inquiry into

the case of any person who has been

discharged unless such person has had an

opportunity of showing cause why such

direction should not be made.

A perusal of the aforesaid provisions portray that the

revisionary power is exercised either by the Sessions

Court or by the High Court and a dismissal of the

complaint by the Magistrate under Section 203 of Cr.P.C

may be assailed in a criminal revision under Section 397

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of Cr.P.C. The ambit of revisional jurisdiction is well

settled. Section 397 of Cr.P.C empowers the Sessions

Judge to call for and examine the record of any

proceeding before any subordinate criminal court situate

within its jurisdiction for the purpose of satisfying itself

as to the correctness, legality or propriety of any finding,

sentence or order recorded or passed, and as to the

regularity of any proceedings of such subordinate Court.

13. The extent of the revisionary powers inter alia,

is provided under Section 399 read with Section 401

of Cr.P.C. It is clear from the aforesaid provisions that

Section 398 has to be read along with other Sections

which are equally applicable to the revision petitions

filed before the Sessions Court. Section 398 only deals

with a distinct power to direct further inquiry,

whereas Section 397 read with Section 399 and

Section 401 confers power on the revisionary

authority to examine correctness, legality or propriety

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of any findings, sentence or order. The powers of the

revisionary court have to be cumulatively understood

in consonance with Sections 398, 399 and 401 of

Cr.P.C.

14. We may note that the High Court, in the

impugned judgment, came to an erroneous conclusion

that the Sessions Court had itself taken cognizance of

the matter which may be reproduced as under“On

bare perusal of this provision it is

clear that the impugned order cannot

be passed under Section 398 of the

Code. The word ‘may direct’ has been

used by the legislation in this

provision. It gives wide discretion to the

court to order further enquiry.

Sessions Court has no power to take

cognizance of the offence, assess the

offence and reach its own conclusion

whether there is ground for

proceeding with complaint or not

and further to direct a Magistrate

with regard to registration of a

complaint on finding a prima facie

case”.

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15. On a perusal of the Sessions Court judgment

(quoted supra), we are of the opinion that the Sessions

Court did not pass an order taking cognizance. The

Sessions Court order should have been construed only

as a remand order for further enquiry. The

observations made by the Sessions Court were only

justification for a remand and the same did not

amount to taking cognizance. In view of the above, the

High Court clearly misconstrued the Sessions Court

order and proceeded on an erroneous footing. On the

other hand, the revisional court was also in error to

the extent of influencing the Magistrate Court to keep

the findings of Sessions Court in mind, while

considering the case on remand. The misconception

created before the High Court was due to the fact that

the remand order provided discretion for the trial

court to conduct further enquiry and thereafter

consider issuing process. The High Court in the case

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at hand without appreciating the dichotomy between

taking cognizance and issuing summons, quashed the

complaint itself on wrong interpretation of law. In the

light of the above, the impugned order of the High

court cannot be sustained in the eyes of law.

16. Now coming to the second aspect as to the

legality of the order of the learned Magistrate taking

cognizance of the matter. The standard required by

the Magistrate while taking cognizance is well settled

by this court in catena of judgments. In

Subramanian Swamy vs. Manmohan Singh &

Another, (2012) 3 SCC 64, this Court explained the

meaning of the word ‘cognizance’ holding that “…In

legal parlance cognizance is taking judicial notice by the

court of law, possessing jurisdiction, on a cause or

matter presented before it so as to decide whether there

is any basis for initiating proceedings and

determination of the cause or matter judicially”. We may

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note that the Magistrate while taking cognizance has

to satisfy himself about the satisfactory grounds to

proceed with the complaint and at this stage the

consideration should not be whether there is sufficient

ground for conviction. It may not be out of context to

note that at the stage of taking cognizance, the

Magistrate is also not required to record elaborate

reasons but the order should reflect independent

application of mind by the Magistrate to the material

placed before him.

17. On a perusal of the order of the learned

Magistrate taking cognizance, it is apparent that the

learned Magistrate observes that the Sessions court

has already made out a prima facie case. Such finding

would be difficult to sustain as the revisional court

only observed certain aspects in furtherance of

remanding the matter. Such observations could not

have been made by the Magistrate as he was expected

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to apply his independent mind while taking

cognizance. In the case on hand, we recognize the

limitation on the appellate forum to review subjective

satisfaction of the Magistrate while taking cognizance,

but such independent satisfaction unless reflected in

the order would make it difficult to be sustained.

There is no dispute that Justice should not only be

done, but should manifestly and undoubtedly be seen

to be done. It is wrought in our constitutional

tradition that we imbibe both substantive fairness as

well as procedural fairness under our criminal justice

system, in the sense of according procedural fairness,

in the making of decisions which affect rights,

interests and legitimate expectations, subject only to

the clear manifestation of a contrary statutory

intention.

18. On a different note, we may note that the

Magistrates across India have been guided on number

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of occasions by concrete precedents of this Court to

exercise utmost caution while applying their judicious

mind in this regard. Unfortunately, we may note that

number of cases which are brought before us reflects

otherwise.

19. Our attention was drawn to the fact that a civil

court subsequently declared the sale deed executed by

Smt. Vidhyabai and others in favour of Jagat Narain

Thapak as null and void. Further we are apprised of

observations made by the Sessions Court on the

merits of the case. But we are not inclined to go into

those issues.

20. In view of the above, the appeal is allowed and

the impugned judgment is set aside. Accordingly, the

complaint be considered by trial court afresh. Before

parting with this case, we may clarify that

the trial court is directed to proceed with the case

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uninfluenced by anyobservations made by this Court

for the purpose of deciding the instant appeal.

………………………….J.

(N. V. Ramana)

….………………………J.

(S. Abdul Nazeer)

New Delhi,

February 23, 2018.

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