R. S. VERMA, J. - (1.) LEARNED Judl. Magistrate, First Class, has taken cognizance of an offence u/s 302 IPC against the petitioner vide order dated 4-11-80. He has directed issue of non-bailable warrants against the petitioner.
(2.) BRIEFLY stated the case of the prosecution is that petitioner's son Babu Lal was married to deceased Smt. Ladi. was living with her husband at the relevant time. On 6-6-80, she was admitted to General Hospital, Udaipur, with extensive burns on her body. She was treated by Dr. , A. S. Gupta assisted by Dr. Radhey Shyam Sharma and nurse Smt. Bharti Prior to her treatment, she was seen by Dr. J. K. Rohat. She stated to, Dr. Rohat that she was preparing tea and she was burnt by accident. Dr. A. S. Gupta did not make any enquiries from her but Dr. R. S. Sharma who prepared the bad head ticket and enquired from her and she repeated the same story to him also. Later on, she was examined by Dr. Dharmendra Sharma for her injuries and she maintained this very version before him. Later on, when her condition become serious, her statement was got recorded by a Magistrate and in the statement made to the Magistrate, she alleged that her mother-in-law, the present peti-tioner had poured kerosene on her and had struck a match stick and burnt her because of ill will. The police after enquiry registered a case u/ss 307 and 326 IPC and altered it to one u/s 302 IPC since Smt. Ladi died of the burns received by her. After investigations, the police put up a final report but the learned Judl. Magistrate, Udaipur, on the basis of the dying declaration of Smt. Ladi made before Addl. Civil and Chief Judl. Magistrate, Udaipur, took cognizance of offence u/s 302 IPC and directed issue of warrants. In the present petition, learned counsel for the petitioner submits that in view of the previous dying declarations made by Smt. Ladi to Dr. Dharmendra and Dr. Rohat, a case u/s 302 IPC is not made out and, therefore, learned Magistrate should not have taken any cognizance against her. Alterna-tively, it has been submitted that a non-bailable warrant should not have been issued because the investigation in this case was already over, the petitioner was a lady and only bailable warrants ought to have been issued. He submits that the order of the learned Magistrate dated 4-11-80 should be set aside. Learned P. P. submits that the order of the learned Magistrate taking cognizance against the petitioner was perfectly justified. This Court sitting in revision should not re-appraise the evidence on record. It is submitted that earlier dying declaration having been made under the influence of the husband and the parents in law of the deceased cannot be ruled out. The order of the Magistrate is based on legal evidence in the shape of dying declaration of Smt. Ladi and hence, cannot be characterised as perverse or illegal or without jurisdiction in any manner. He submits that in a heinous case like this, there is no question of issuing bailable warrants and the order of the learned Magistrate is perfectly justified. I have considered the rival contentions carefully and have gone through the record of the learned court below. In my opinion, I sitting in revision would not be justified in re-appraising the worth of the dying declaration made by Smt. Ladi before different persons. Learned Magistrate also could not have critically examined these dying declarations. The jurisdiction of a Magistrate taking cognizance is a very limited one and he has to see if the material before him justifies taking cognizance of some offence or not. Incase there is some evidence to justify taking cognizance, then he is entitled to take cognizance. Whether the evidence on record merits framing of a charge or not is within the realm of the Sessions Judge and he is entitled to appraise the evidence of the prosecution and consider whether there is or is not sufficient ground for proceeding against the accused. Secs. 227 & 228 of the Cr. P. C. confer such jurisdiction on the Sessions Judge.
(3.) IN the present case, I find that there was some evidence before the learned Magistrate on the basis of such cognizance could have been taken. If the dying declaration of Smt. Ladi made before the learned Addl. Chief Judl. Magistrate remains as it is then, prima facie a case u/s 302 IPC is made out against the petitioner for the purpose of taking cognizance. I find that the order of the Magistrate taking cognizance against the petitioner is thus perfectly just and proper. In my opinion this is a fit case where non-bailable warrants should not have been issued. The investigation in this case is already over, and only formal arrest of the petitioner is required. In my opinion, ends of justice would have been met if a bailable warrant had been issued against the petitioner. As already stated, it would be open to the learned Sessions Judge to whom the case is eventually committed to see if the material on evidence warrants a trial or not and whether petitioner is entitled to a discharge. ;