- (1.) THE petitioners Vali Mohammad Sakka and Basir son of Karim have filed this petition for revision under sections 401/397 Cr. P. C. against the order of the learned Additional Sessions Judge, Hanuman-garh dated August 6, 1977, by which he directed the Judicial Magistrate, Hanu-mangarh to take cognizance against them for an offence under section 302 IPC and to summon them.
(2.) NON-petitioner No. 1 Vali Mohammad son of Nagar is complainant. After recording First Information Report, regarding an offence of murder, at the instance of complainant, and completing the investigation and arrest of one Idrish, the S. H. O. Flanumangarh submitted a challan for commitment of the case in the court of Judicial Magistrate, Hanumangarh on December 29, 1976. The complainant submitted a protest petition in respect of the same occurrence to the Judicial Magistrate implicating four accused persons including Idrish against whom challan was submitted by the police. The learned Judicial Magistrate, dismissed the protest petition on May 3, 1977 holding that cognizance cannot be taken against them. He observed that there were no sufficient grounds at all to proceed against the petitioners and Karim. Feeling aggrieved by the order dismissing the protest petition, the complainant preferred a revision petition. The learned Additional Sessions Judge, Hanumangarh, by his order dated August 6, 1977, accepted the revision petition against the petitioners and directed the Judicial Magistrate, Hanumangarh to take cognizance of offence under section 302 I. P. C. against the petitioners and to summon them. The revision was, however, not accepted against Karim. Against that order of the learned Additional Sessions Judge, Hanumangarh dated August 6, 1977, the petitioners have preferred this revision petition. It was Contended by Mr. D. K. Purohit that the order of the Judicial Magistrate dated May 3, 1977 amounted to a dismissal of the complaint under section 203 Cr. P. C. and such order could only be set aside under section 398 Cr. P. C. Under section 398 Cr. P. C, the only order, according to the learned counsel, that could be passed was to direct the Judicial Magistrate to make fur-ther inquiry into the complaint and such direction could only be made after giving an opportunity to the concerned persons, to show cause as to why such direction should not be made. He urged that the learned Additional Sessions Judge had no jurisdiction to give a direction to the Judicial Magistrate to take cognizance of the offence. According to him, taking cognizance of an offence is an executive act and not a judicial one. It is not obligatory on the Magistrate to take cognizance of an offence and the cognizance of an offence can only be taken once which the learned Magistrate has already done against the accused Idrish. He further submitted that on the facts and in the circumstances, relied on by the learned Judicial Magistrate, Hanumangarh in his order dated May 3, 1977, dismissal of the protest petition was proper and the learned Additional Sessions Judge was not justified in interfering with that order in revision, for, the view taken by the Judicial Magistrate being a possible view. The learned Public Prosecutor supported the order under revision. According to him, the order of the learned Judicial Magistrate is non-est in law and that the learned Additional Sessions Judge has not taken cognizance of any offence, he has merely sent the case back to the Judicial Magistrate with a direction to him to take cognizance of offence under section 302 I. P. C. against the petitioners and to summon them. Thus, according to the learned Public Prosecutor, the petitioners will have an opportunity to contest before the Judicial Magistrate and, therefore, non-issuance of notice in revision is not material.
(3.) MR. Bhagwati Prasad, learned counsel for the non-petitioner No. 1 (complainant) submitted that cognizance of offence had already been taken by the Judicial Magistrate against the accused Idrish. The protest petition was nothing but a sort of complaint to the Magistrate against the petitioners and Karim and he was required to decide it judicially. He, therefore, urged that as it was a judicial order, revision against that order, by the complainant was justified. According to the learned counsel, it is only the executive or administrative order which is not revisable. When the protest petition was dismissed, the order tantamount to refusing to take cognizance against the petitioners and Karim. It was not necessary to give an opportunity to the petitioners of showing cause under section 398 Cr. P. C. inasmuch as proviso to that section only applies to a person accused of an offence who has been discharged and question of discharge arises ' after summoning of accused. Learned Public Prosecutor urged that section 239 Cr. P. C. contains provisions relating to discharge and these provisions apply when an accused person is present before the court, and in this case, that stage has not reached as yet, because it is only after taking cognizance that the petitioners would appear before the court. In view of the submissions, made by the learned counsel for the parties the interesting questions of law that arise are: (1) Whether the order of the Judicial Magistrate dated May 3, 1977, declining to take cognizance against the petitioners, whereby dismissing the protest petition, filed by the complainant, is a judicial order, which could be revised by the learned Additional Sessions Judge in revision ? (2) Whether the order of the Judicial Magistrate' dated May 3, 1977, amounted to dismissal of complaint under sec. 203 Cr. P. C. or discharge of the petitioners accused of offence under section 302 I. P. C. and if the answar to this question is in affirmative, only order that could be passed by the learned. Additional Sessions Judge was to direct the Judicial Magistrate to make further inquiry into the complaint ? (3) Whether it was necessary for the learned Additional Sessions Judge before making the order in revision to have afforded an opportunity to show cause to the petitioners, and (4) Whether on the facts and in the circumstances of the case, the learned Additional Sessions Judge was justified in directing the Judicial Magistrate to take cognizance of offence under section 302 I. P. C. against the petitioners and to summon them? For a better appreciation of the arguments, it is necessary to notice the relevant provisions of the Code of Criminal Procedure. ;