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Thursday, March 1, 2018

Private complaint under Sections 420, 467, 468, 471,120B, 506 of Indian Penal Code, 1860 [hereinafter referred as ‘IPC’ for brevity] and under Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 = The Judicial Magistrate, 1st Class, Gwalior, by Order dated 21.04.2012, dismissed the aforesaid criminal complaint on the footing that there was no sufficient proof on record provided by the appellant/complainant to prove that he belongs to Scheduled Caste or Scheduled Tribe and the dispute between the parties had trappings of civil nature.- in appeal Session court remand the case for fresh consideration - High court dismissed the complaint "...In legal parlance cognizance is taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially"

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 312 OF 2018
(arising out of SLP (Crl.) No. 6900 of 2014)
RAJENDRA RAJORIYA … APPELLANT (S)
VERSUS
JAGAT NARAIN THAPAK AND ANOTHER … RESPONDENT (S)
 JUDGMENT
 N. V. RAMANA, J.
1.Leave granted.

2. In this criminal appeal the judgment dated
08.07.2014, passed by the High Court of Madhya
Pradesh, bench at Gwalior in Criminal Revision No.
104/2013 is impugned.
3. Appellant herein filed a complaint before the
jurisdictional police station under Sections 420, 467,
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Reportable
468, 471,120B, 506 of Indian Penal Code, 1860
[hereinafter referred as ‘IPC’ for brevity] and under
Section 3 of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 on the allegations
that one Smt. Vidhyabai and others sold the disputed
land to respondent no. 1 and got the appellant’s
property mutated by committing fraud and forgery. It
was further alleged that the respondents had
threatened the appellant with dire consequence and
swore at them with filthy language intended to
belittle his caste/tribe. It may be noted that the
concerned police station did not take any action on
the aforesaid complaint.
4. Aggrieved by the inaction of the police, the
appellant approached the Jurisdictional Magistrate,
Gwalior, with the same set of facts under Section 200
of Cr.P.C.
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5. The Judicial Magistrate, 1st Class, Gwalior, by
Order dated 21.04.2012, dismissed the aforesaid
criminal complaint on the footing that there was no
sufficient proof on record provided by the
appellant/complainant to prove that he belongs to
Scheduled Caste or Scheduled Tribe and the dispute
between the parties had trappings of civil nature.
6. Aggrieved by the aforesaid dismissal of criminal
complaint, appellant approached Addl. District and
Sessions Judge [hereinafter referred as ‘Sessions
Court’ for brevity] in Criminal Revision No.
242/2012. The Sessions Court, by the order dated
07.12.2012, held that the complainant belonged to
Jatav community which is a Scheduled Caste.
Further the Sessions Court observed that the facts
narrated portray that the respondent no. 1 in
conspiracy with others had transferred the land
belonging to the appellant in an illegal manner.
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Thereafter, concluded that the lower court did not
appreciate the facts as well as the law in a proper
manner and remanded the case in the following
manner: -
This revision is allowed and order dated
21.04.2012 passed by Court is set
aside and case is remanded back with
a direction that if necessary after a
further enquiry keeping in view the
 findings given in this order , proper
order be passed with regard to
registration of complaint and to
summon the respondents and for
that directed the parties to remain
present before the Court below on
20.12.2012.
(Emphasis supplied)
7. On remand of the case, Judicial Magistrate, vide
order dated 23.01.2013, while taking cognizance of
the aforesaid offences under Section 420, 467, 471,
120-B of IPC and 3(1)(4) of SC/ST Act, registered the
complaint as Criminal Case No. 1576/2013 and on
23-02-2013, learned Magistrate noted as under4
...the court is required to prima facie
decide question of initiating proceeding
arises or not. It is pertinent that in
this case learned Revisional Court has
 prima facie already found sufficient
ground for initiating proceeding
against non-applicants.
(emphasis supplied)
8. In the meanwhile, aggrieved by the remand order
dated 07.12.2012 passed by the Sessions Court and
the order of the Magistrate, dated 23.01.2013, taking
cognizance, the respondent filed revision before the
High Court being Criminal Revision No. 104/2013.
By the impugned judgment dated 08.07.2014, the
High Court allowed the revision petition and quashed
the complaint on the reason that the revisonal court
could not have taken cognizance on 23.01.2013 as the
same was in violation of Section 398 of Cr.P.C.
9. We have heard learned counsels appearing on
behalf of both the parties.
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10. The questions that fall for consideration are in
regard to the legality of the remand order passed by
the Sessions Court and the order of the learned
Magistrate taking cognizance thereafter. As the High
Court has dealt with the validity of both the orders, we
would like to take up the same in seriatum starting
with legality of the remand order.
11. The respondent contends that the learned
Sessions Judge could not have observed on merits as
it amounted to taking cognizance of the matter. Such
contentions although seems attractive, but must be
rejected for reason that the revisional court only had
provided reasons for ordering further enquiry under
Section 398 of Cr.P.C and the observations provided
on merit cannot be said to have an effect of taking
cognizance in this case.
12. At the outset, before we decide the legality of
the remand order, we are required to determine the
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scope of criminal revision under Section 397 read with
Section 398 of Cr.P.C. It would be appropriate to
reproduce Sections 397 and 398 of Cr.P.C herein.
Section 397. Calling for records to
exercise powers of revision.
(1) The High Court or any Sessions Judge
may call for and examine the record of any
proceeding before any inferior Criminal
Court situate within its or his local
jurisdiction for the purpose of satisfying
itself or himself as to the correctness,
legality or propriety of any finding,
sentence or order,- recorded or passed, and
as to the regularity of any proceedings of
such inferior Court, and may, when calling
for such record, direct that the execution of
any sentence or order be suspended, and if
the accused is in confinement, that he be
released on bail or on his own bond
pending the examination of the record.
Explanation- All Magistrates whether
Executive or Judicial, and whether
exercising original or appellate jurisdiction,
shall be deemed to be inferior to the
Sessions Judge for the purposes of this
sub- section and of section 398.
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Section 398. Power to order inquiry.
On examining any record under section
397 or otherwise, the High Court or the
Sessions Judge may direct the Chief
Judicial Magistrate by himself or by any of
the Magistrates subordinate to him to
make, and the Chief Judicial Magistrate
may himself make or direct any
subordinate Magistrate to make, further
inquiry into any complaint which has been
dismissed under section 203 of
Sub-Section (4) of section 204 or into the
case of any person accused of an offence
who has been discharged:
Provided that no Court shall make any
direction under this section for inquiry into
the case of any person who has been
discharged unless such person has had an
opportunity of showing cause why such
direction should not be made.
A perusal of the aforesaid provisions portray that the
revisionary power is exercised either by the Sessions
Court or by the High Court and a dismissal of the
complaint by the Magistrate under Section 203 of Cr.P.C
may be assailed in a criminal revision under Section 397
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of Cr.P.C. The ambit of revisional jurisdiction is well
settled. Section 397 of Cr.P.C empowers the Sessions
Judge to call for and examine the record of any
proceeding before any subordinate criminal court situate
within its jurisdiction for the purpose of satisfying itself
as to the correctness, legality or propriety of any finding,
sentence or order recorded or passed, and as to the
regularity of any proceedings of such subordinate Court.
13. The extent of the revisionary powers inter alia,
is provided under Section 399 read with Section 401
of Cr.P.C. It is clear from the aforesaid provisions that
Section 398 has to be read along with other Sections
which are equally applicable to the revision petitions
filed before the Sessions Court. Section 398 only deals
with a distinct power to direct further inquiry,
whereas Section 397 read with Section 399 and
Section 401 confers power on the revisionary
authority to examine correctness, legality or propriety
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of any findings, sentence or order. The powers of the
revisionary court have to be cumulatively understood
in consonance with Sections 398, 399 and 401 of
Cr.P.C.
14. We may note that the High Court, in the
impugned judgment, came to an erroneous conclusion
that the Sessions Court had itself taken cognizance of
the matter which may be reproduced as under“On
bare perusal of this provision it is
clear that the impugned order cannot
be passed under Section 398 of the
Code. The word ‘may direct’ has been
used by the legislation in this
provision. It gives wide discretion to the
court to order further enquiry.
Sessions Court has no power to take
cognizance of the offence, assess the
offence and reach its own conclusion
whether there is ground for
proceeding with complaint or not
and further to direct a Magistrate
with regard to registration of a
complaint on finding a prima facie
case”.
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15. On a perusal of the Sessions Court judgment
(quoted supra), we are of the opinion that the Sessions
Court did not pass an order taking cognizance. The
Sessions Court order should have been construed only
as a remand order for further enquiry. The
observations made by the Sessions Court were only
justification for a remand and the same did not
amount to taking cognizance. In view of the above, the
High Court clearly misconstrued the Sessions Court
order and proceeded on an erroneous footing. On the
other hand, the revisional court was also in error to
the extent of influencing the Magistrate Court to keep
the findings of Sessions Court in mind, while
considering the case on remand. The misconception
created before the High Court was due to the fact that
the remand order provided discretion for the trial
court to conduct further enquiry and thereafter
consider issuing process. The High Court in the case
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at hand without appreciating the dichotomy between
taking cognizance and issuing summons, quashed the
complaint itself on wrong interpretation of law. In the
light of the above, the impugned order of the High
court cannot be sustained in the eyes of law.
16. Now coming to the second aspect as to the
legality of the order of the learned Magistrate taking
cognizance of the matter. The standard required by
the Magistrate while taking cognizance is well settled
by this court in catena of judgments. In
Subramanian Swamy vs. Manmohan Singh &
Another, (2012) 3 SCC 64, this Court explained the
meaning of the word 'cognizance' holding that "...In
legal parlance cognizance is taking judicial notice by the
court of law, possessing jurisdiction, on a cause or
matter presented before it so as to decide whether there
is any basis for initiating proceedings and
determination of the cause or matter judicially". We may
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note that the Magistrate while taking cognizance has
to satisfy himself about the satisfactory grounds to
proceed with the complaint and at this stage the
consideration should not be whether there is sufficient
ground for conviction. It may not be out of context to
note that at the stage of taking cognizance, the
Magistrate is also not required to record elaborate
reasons but the order should reflect independent
application of mind by the Magistrate to the material
placed before him.
17. On a perusal of the order of the learned
Magistrate taking cognizance, it is apparent that the
learned Magistrate observes that the Sessions court
has already made out a prima facie case. Such finding
would be difficult to sustain as the revisional court
only observed certain aspects in furtherance of
remanding the matter. Such observations could not
have been made by the Magistrate as he was expected
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to apply his independent mind while taking
cognizance. In the case on hand, we recognize the
limitation on the appellate forum to review subjective
satisfaction of the Magistrate while taking cognizance,
but such independent satisfaction unless reflected in
the order would make it difficult to be sustained.
There is no dispute that Justice should not only be
done, but should manifestly and undoubtedly be seen
to be done. It is wrought in our constitutional
tradition that we imbibe both substantive fairness as
well as procedural fairness under our criminal justice
system, in the sense of according procedural fairness,
in the making of decisions which affect rights,
interests and legitimate expectations, subject only to
the clear manifestation of a contrary statutory
intention.
18. On a different note, we may note that the
Magistrates across India have been guided on number
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of occasions by concrete precedents of this Court to
exercise utmost caution while applying their judicious
mind in this regard. Unfortunately, we may note that
number of cases which are brought before us reflects
otherwise.
19. Our attention was drawn to the fact that a civil
court subsequently declared the sale deed executed by
Smt. Vidhyabai and others in favour of Jagat Narain
Thapak as null and void. Further we are apprised of
observations made by the Sessions Court on the
merits of the case. But we are not inclined to go into
those issues.
20. In view of the above, the appeal is allowed and
the impugned judgment is set aside. Accordingly, the
complaint be considered by trial court afresh. Before
parting with this case, we may clarify that
the trial court is directed to proceed with the case
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uninfluenced by anyobservations made by this Court
for the purpose of deciding the instant appeal.
………………………….J.
 (N. V. Ramana)
….……………………...J.
 (S. Abdul Nazeer)
New Delhi,
February 23, 2018.
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