The Allahabad High Court has dismissed the petition observing that the order of taking cognizance is a final order and whether it is erroneous order or not, can be looked into by the superior court in appropriate proceedings and not by the same court, which has taken cognizance.
A single-judge bench of Justice Dinesh Kumar Singh passed this order while hearing a Criminal Revision filed by Atique Ahmad.
The criminal revision under Section 397 (1) read with Section 401 CrPC has been instituted by Atique Ahmad, revisionist against the order dated 17.11.2022 passed by the Additional Sessions Judge/ Special Judge(MP/MLA), Allahabad in Criminal Revision, whereby the revisional court allowed the criminal revision filed by the State against the order dated 7.3.2008 passed by the Additional Civil Judge/Judicial Magistrate, Allahabad.
The facts of the case are that on 5.7.2007 Sri Ompal, a member of the Zila Panchayat, Allahabad lodged FIR under Sections 147, 148, 323, 341, 342, 364, 504 and 506 IPC and Section 7 Criminal Law Amendment Act against the revisionist, a sitting Member of Parliament and others. The investigation of the said offence was conducted by K.K. Mishra, Station House Officer.
During the course of investigation, efforts were made by the Investigating Officer to arrest the accused-revisionist, however, the accused could not be arrested nor did they surrender before the trial court. Warrants were issued against the accused and, thereafter, proceedings under Section 82/83 CrPC were undertaken. However, the accused could not be arrested nor did they surrender before the trial court within the prescribed time. In view thereof, an FIR under Section 174A IPC was registered on 26.8.2007.
The Investigating Officer after investigating the offence, filed an application for submitting the charge sheet and prosecuting the accused, including the revisionist. The Magistrate granted permission for submitting the chargesheet and, thereafter, the chargesheet was submitted on 13.9.2007 by the Investigating Officer in the court. One application was also filed along with the chargesheet stating that as per the provisions of Section 195 CrPC read with Section 340 CrPC, the court may send the chargesheet in its signature to the competent court for taking cognizance. The trial court, without deciding the application dated 13.11.2007 filed by the Investigating Officer, took cognizance of the chargesheet on 16.1.2008 and ordered for preparing the copies of the documents.
Co-accused Aizaz Akhtar surrendered before the trial court and filed an application for bail. The said accused was taken into custody and his application for bail was rejected. Thereafter, his bail application was allowed by the Sessions Court. The revisionist was arrested by the police and he was sent to judicial custody. Co-accused Ashraf @ Kale was still absconding.
The Court noted it appears that an application came to be filed after change of the presiding officer in the court of Additional Civil Judge/Judicial Magistrate, Allahabad against the order dated 6.1.2008 and the presiding officer as sitting in appeal against its own order, held that the objection could be entertained on behalf of the accused against the cognizance taken by the court when the objection would go at the bottom of the jurisdiction of the court. The Magistrate has held that provisions of Section 195 CrPC could not have been evaded and the order of taking cognizance dated 16.1.2008 was without jurisdiction and void ab initio. It was further held that since the order of cognizance was void ab initio and remand under Section 309 CrPC would no longer be accorded and the application for remand was rejected vide order dated 7.3.2008.
Aggrieved by the said order, the State has filed Criminal Revision and the revisional court has held that vide impugned order, the Magistrate had reviewed its own order of taking cognizance. It is well settled that the criminal court does not have power to review its own order. Revisional court had set aside the order dated 7.3.2008 impugned in the revision.
Daya Shankar Mishra, Senior Advocate, for the revisionist has submitted that cognizance for an offence under Section 174A IPC could not be taken without complying with the provisions of Section 195 CrPC.
He has further submitted that the chargesheet was filed in the court on a police report and the Investigating Officer filed an application for forwarding the said report to the concerned court. However, the Magistrate did not take decision on the application of the Investigating Officer and took cognizance himself and ordered for issuing copies of the documents.
He has further submitted that the remand under Section 309 CrPC in such a case where the order of cognizance on the face of record is void and could not have been passed.
He has, therefore, submitted that the Magistrate has not committed any error of jurisdiction or law which required the revisional court to interfere with the well reasoned order dated 7.3.2008 refusing the remand of the accused-revisionist.
Senior Advocate for the revisionist has further submitted that the order of cognizance is not a final order and on an application, the court concerned can cancel/recall the said order.
The trial court on the application of the accused-revisionist has recalled the order finding that the order of taking cognizance was void ab initio as it was passed in violation of Section 195 CrPC.
He has also submitted that the revisionist was not given opportunity of hearing by the revisional court and, therefore, the order impugned is bad in law inasmuch as the accused-respondent was required to be heard as provided in Section 401 CrPC and it is in violation of principles of natural justice.
On the other hand, Manish Goyal, Additional Advocate General, has submitted that the order of taking cognizance is a final order. Under Section 362 CrPC there is a specific bar for reviewing its own order by the criminal court.
He has further submitted that the trial court has not only refused remand of the accused revisionist under Section 309 CrPC, but also reviewed the order passed by the same court (however by another presiding officer) and held that the order of taking cognizance was void ab initio.
It has been further submitted that such a course was not opened to the Magistrate inasmuch as he is not empowered to review its earlier order.
It has also been submitted that the order taking cognizance and issuing process is a final order and it is not an interlocutory order, which cannot be recalled or reviewed by the same court.
Additional Advocate General has further submitted that the impugned order itself would show that the accused-revisionist was given several opportunities for making submissions. However, the accused avoided addressing the arguments. He has, therefore, submitted that the revisional court has not committed any error of jurisdiction or law in setting aside the order passed by the Magistrate inasmuch as the order passed by the Magistrate would amount to an order in appeal or reviewing its own order, which is not permissible under the law.
He has submitted that in view thereof, the revision has no merit, which is liable to be dismissed.
“From the aforesaid discussion, it is evident that the order of taking cognizance is a final order and whether it is erroneous order or not, can be looked into by the superior court in appropriate proceedings and not by the same court, which has taken cognizance.
In view thereof, I am of the view that the order under challenge in the revision does not suffer from any illegality or error of jurisdiction or law.
The Magistrate has no power to review the earlier order dated 16.1.2008 taking cognizance and, therefore, I find no merit in the revision,” the Court observed while dismissing the petition.