Rastogi & Ors Vs. State of U.P. and Anr  Insc 104 (7 February 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
(Arising out of SLP (Crl.) NO. 3675 OF 2006) Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a learned Single
Judge of the Allahabad High Court. The High Court by the impugned order partly
accepted the challenge made by the respondent no.1, the informant, in Crime
no.53 of 2005.
Factual background in a nutshell is as follows:
On the basis of the information given by respondent no.2 case of alleged
commission of offence punishable under Section 498-A, 323, 504 of the Indian
Penal Code, 1860 (in short the 'IPC') read with Sections 3 and 4 of the Dowry
Prohibition Act, 1961 (in short 'Dowry Act') was registered.
After investigation charge sheet was filed against the appellants. The
magistrate took cognizance of the offences and issued summons to the accused
persons. The offences are triable by Magistrate, First Class. The informant
filed an application before the concerned Magistrate to the effect that on the
basis of evidence collected by the investigating officer, cognizance ought to
have been taken for offence punishable under Sections 406 and 307 IPC. The
magistrate was of the view that after evidence is adduced, commission of the
offence punishable under Sections 406 and 307 IPC is made out, then the prayer
of the informant could be considered. Respondent no.2 filed a petition before
the High Court stating that the materials collected by the investigating
officer and contained in the case diary itself justified trial under Sections
307 and 406 IPC. It was pointed out that by addition of these sections, the
case should be tried by the Court of Sessions while on the basis of cognizance
taken the case is triable by the Magistrate.
The High Court was of the view that the Magistrate had not applied his mind
to the merits of the points raised by the informant. The Magistrate was not
bound by the description in the police report and while taking cognizance it
could make variation if there was sufficient material before him. The High
Court felt that when the informant claimed that the materials contained in the
case diary indicated commission of certain offences which make it case triable
exclusively by the Court of Sessions, the Magistrate should at the time of
framing charges consider and decide points so that unnecessary proceedings are
not taken up if the case is to ultimately go before the Sessions Judge. After
having so held the High Court held that proper stage is the stage of framing
charge. Direction was given to consider and decide the matter afresh.
Learned counsel for the appellants submitted that the approach of the High
Court is clearly erroneous. It rightly held that at the time of framing charge
the Magistrate could consider as to what are the offences for which accused
persons have to be tried. Having held so, the High Court could not have found
fault with the Magistrate's observations to similar effect.
We find that the High Court has unnecessary made certain observations which
lead to contrary conclusions.
Having held that the proper stage for consideration is stage of framing
charge, there was no necessity for further observations and/or directions. It
rightly held that the Magistrate is not bound to take cognizance of the
offences indicated in the police report. That being so, the ultimate directions
of the High Court materially differ from its earlier conclusions.
The Magistrate has to consider material at the time of framing charge.
Needless to say he will pass necessary orders if according to him the case is
triable by the Court of Sessions.
The appeal is accordingly disposed of.
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