SAXENA, J. - (1.) THIS Revision Petition has been preferred against the order dated 18. 6. 1988 passed by the learned Addl. Chief Judicial Magistrate, Rajasthan in Criminal Complaint Case No. 273/88, whereby the cognizance against the accused-petitioner for the offences punishable under Sections 323,324/34 & 326/341. P. C. and ordered for issuing bailable warrant to ensure their attendance.
(2.) IN nutshell, the relevant facts are that on the report of the complainant-non-petitioner Crime No 72/88 was registered at police station, Ratangarh against the accused-petitioners and their father Govind Ram. The police after investigation submitted a challan only against accused Govind Ram for the offences under Section 341,323,324 & 326 I. P. C. It was mentioned in the challan that as against the accused-petitioners, from the investigation on offence was made out and that they were also not present at the time of alleged occurrence. The complainant through the Addl. Public Prosecutor filed a protest petition before the learned Addl. Chief Judicial Magistrate, Ratangarh praying that cognizance may also be taken against the accused-petitioners. The learned Addl. Chief Judicial Magistrate, after perusing the challan papers by his order dated 10. 5. 88 dismissed that application holding that there did not exist sufficient grounds for taking cognizance against the accused-petitioners. Thereafter on 17. 5. 88, the complaintant non-petitioner separately filed a criminal complaint against the petitioners in respect of the same incident for the offences under Sections 323/34, 324, 326 & 457 I. P. C. The learned Magistrate recorded the statement of the complainant-non-petitioner under Section 200 and examined his witnesses under section 202 Cr. P. C. and by his impugned order dated 18. 6. 88 took cognizance against the petitioners for the offences narrated above. Hence this revision petition. I have heard the learned Advocates for the parties at length and carefully perused the record of the lower court. The pertinent question for the disposal of this revision petition is whether the earlier order dated 10. 5. 1988 passed by the A. C. J. M. holding that there did not exist sufficient grounds for taking cognizance against the petitioners after perusing the challan papers was a judicial order it or an administrative order? Secondly, if it was a judicial order, then whether the learned Magistrate was competent to review the same and to take cognizance against the petitioners before the stage envisaged under Section 319 Cr. P. C. had reached? In Dadam Chand Vs. State of Rajasthan (1), it has been held that after receiving the report under Section 173 (2) Cr. P. C. from the police the Magistrate applies his judicial mind to arrive at a conclusion as to whether to accept the report or to send it to the police for further investigation and that the order taking cognizance against some accused and not taking cognizance against other accused persons does not tantamount to an administrative order. On the other hand, such order is a judicial order. In the instant case, the police after investigation submitted a charge-sheet against accused Govind Ram only and specifically mentioned therein that no offence was made out against the petitioners and that from the evidence collected during investigation, it was found that they were not even present at the time and place of the incident. The learned Magistrate on the protest petition filed by the non-petitioner, after perusing the challan papers, evidence collected by the Investigation Officer and hearing the complainant i. e. after applying his judicial mind by his order dated 10. 5. 1988 held in most unambiguous and explicit terms that there did not exist sufficient grounds to believe that the petitioners had committed the offences mentioned in the F. I. R. and as such there was no good ground for taking cognizance against them. In such circumstances, the earlier order dated 10. 5. 88 was positively a judicial order and the learned ACJM had no legal authority to have reviewed, recalled or amended the same by taling cognizance against the petitioners on the criminal complaint filed by the complainant subsequently till the stage as envisaged under Section 319 Cr. P. C. that reached. Therefore, once the learned Magistrate did not find sufficient grounds to take cognizance against the petitioners, he was legally not competent and authorised to take cognizance of the offences against them on the basis of the evidence recorded by him in the criminal complaint subsequently filed by the non- petitioners and by again perusing and considering the challan papers, because he had no power to review, or recall his earlier order. As a matter of fact, the moment the Magistrate took cognizance against accused Govind Ram on the charge-sheet filed by the police, the trial against him commenced and thereafter the Magistrate can only take cognizance against any other person in the contingency as envisaged under Sec. 319 (1) Cr. P. C. after recording some evidence. Therefore, the impugned order dated 18. 6. 88 taking cognizance against the petitioners is patently illegal, improper and inappropriate and the same can not be sustained.
(3.) THE up-shot of the above discussion is that this revision petition is allowed and the order dated 18. 6. 1988 passed by learned A. C. J. M. , Ratangarh is hereby quashed. It is however made clear that this order will not bar or stand in his way to exercise his discretion under section 319 (1) Cr. P. C. .;