M.N. Bhandari, J. - (1.) BY this criminal miscellaneous petition, a challenge has been made to the order dated 06.08.2009 whereby the revision petition filed by the petitioner was dismissed.
(2.) A revision petition was filed to challenge the order dated 13.12.2002 passed by the Chief Judicial Magistrate, Bharatpur and also the order dated 16.12.2002 passed by the Additional Chief Judicial Magistrate, Bharatpur. It is stated that on filing complaint, the case was registered by the Court of Chief Judicial Magistrate. He had taken cognizance and accordingly, the matter was placed for recording of evidence of the complainant under Section 200 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C."). After drawing above referred order, the impugned order dated 13.12.2002 was passed, whereby the complaint was returned back to the complainant for its presentation to the Court of Additional Chief Judicial Magistrate having jurisdiction over Police Station Mathura Gate. The complainant accordingly, submitted complaint before the Additional Chief Judicial Magistrate. On filing of the complaint before the Additional Chief Judicial Magistrate, an order under Section 156(3) of the Cr.P.C. was passed. Pursuant to the order, the police made investigation and submitted charge sheet, the Court passed order taking cognizance. The matter was thereafter heard for framing of the charges and the charges were framed vide order dated 11.05.2004. Learned Counsel for the petitioner submits that the order of the Chief Judicial Magistrate to return back the complaint to the complainant was illegal after taking cognizance of the offence and even the order of the Additional Chief Judicial Magistrate for directing police to make investigation pursuant to the provisions of Section 156(3) of Cr.P.C. On the aforesaid ground, the two orders have been challenged as it goes in the root of the case. For supporting his argument, the judgment of the Hon'ble Apex Court in the case or Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. reported in : AIR 1976 SC 1672 has been referred wherein the Hon'ble Apex Court came to the conclusion that expression "taking cognizance of an offence" by the Magistrate has not been defined in the Code. The cognizance can be said to be taken when the Magistrate applies his mind for proceeding under Section 200 of Cr.P.C. In view of the aforesaid, the Chief Judicial Magistrate having passed an order for recording evidence of the complainant under Section 200 of Cr.P.C. the cognizance of the offence has been taken, thus at that stage, the matter could not have been returned back to the complainant.
(3.) LEARNED Public Prosecutor on the other hand opposed this petition and submits that learned Revisional Court has considered all the aspects of the matter as raised by the learned Counsel for the petitioner herein. It is a matter where after passing two orders on 13.12.2002 as well as on 16.12.2002 Not only the police made investigation but charge sheet was also filed followed by the order of cognizance and framing of the charges. The petitioner has not challenged those orders and belatedly challenge the orders referred to above. Since, the charge has been framed after the order of cognizance, the issue raised in the present matter remains of no consequence. The petitioner could have raised all such objections while cognizance was taken or at the time, when the matter was heard for framing of the charges. He failed to challenge subsequent orders, filed the revision petition belatedly to challenge two orders referred above.;