SRIDHAR JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure. 1973 (in short Cr.P.C.) is directed against the order dated 9/11/2000 (Annexure-2) passed by the learned Judicial Magistrate of First Class, Khallikate, in G.R Case No. 341 of 1998 taking cognizance against the petitioners.

(2.) Bereft of unnecessary details the facts leading to the present application are that basing on an F.I.R lodged on 28/11/1998 at Rambha Police Station, a case under Sections 323/ 379/437/34. I.P.C. was registered against the accused persons including the present petitioners being Rambha P.S. Case No. 145/98 and the same was subsequently registered as G.R. Case No. 341/98 on the file of the learned J.M.F.C., Khallikote. After the investigation was completed final form was submitted in terms of Section 173. Cr.P.C. for the offences under Sections 143/323/325/427149. I.P. C. Thereafter the learned Magistrate took cognizance of the aforesaid offences by order dated 6/3/1999. On 9/11/2000 the informant filed an application before the learned Magistrate with a prayer to take cognizance under Sections 148/452/ 354/325/323/395/427/149. I.P.C. The learned Magistrate considering the aforesaid application passed the impugned order (Annexure-2) taking cognizance against the petitioner and others under Sections 452/459/395. I.P.C. in addition to the other offences of which cognizance had already been taken and fixed a date for production of the accused persons. This order is under challenge in the present application on the grounds namely. (1) the learned Magistrate cannot take cognizance for the second time because of the reason that the order of cognizance is a final order and review/ alteration/ amendment of such order is not permissible; and (ii) no primafacie case was made out under section 395. I.P.C. During the course of argument it was submitted that Section 362. Cr.P.C. is a bar to alter/amend the order.

(3.) Let me take up the first ground for consideration. In this regard learned counsel for the petitioners relies upon a decision of this Court in District Manager. F.C.I. v. Jayashankar Mund1, wherein it was held thus: the learned Chief Judicial Magistrate. Berhampur hed no jurisdiction to review his own order passed earlier and practically setting aside the same thereby assuming the role of a court of revision. If he had any doubt about the correctness of the earlier order it was open to him to draw the attention of the Court of Sessions or the High Court so as to initiate a suo motu criminal revision under Sections 399 and 401 of the Code In the above case final report was submitted by the investigating agency finding therein that no primafacie case for an offence under Section 409. I.P.C. was made out. Thereafter a protest petition was filed by the informant on perusal of which the learned Chief Judicial Magistrate taking cognizance under Section 406. I.P.C. issued summons to the accused persons. The accused persons challenged the same before the C.J.M. who after hearing both the parties came to hold that the protest petition was in the nature of a complaint petition under Section 190(1) (a) of the Cr.P.C. and after acceptance of the final report on the vigilance case the court could not have taken cognizance on the basis of the protest petition. Accordingly he reviewed the order of cognizance passed on 14/12/1983, set aside the same and dismissed the protest petition and discharged the accused persons. This order was negatived by this Court in the aforesaid decision. The learned counsel for the petitioner relies upon another decision of the Apex Court in Han Singh Mann v. Harbhajan Singh Bajwa2, wherein it was held that There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. It was further held therein that Section 362 of the Code mandates that no Court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. In support of his contention, the learned counsel next relies on the decision of the apex Court in Abhinandan Jha v, Dinesh Mishra3, and draws my attention to the following observations:TT Therefore to conclude there is no power expressly or impliedly conferred under the Code, on a Magistrate to call upon the police to submit a charge-sheet when they have sent a report under Section 169 of the Code that there is no case made out for sending up an accused for trial. Lastly the learned counsel refers to a case of this Court in Gobinda Chandra Kuanr v. State of Orissa4, where a similar question was dealt with and it was held in para 5 as follows: 5. In view of what has been stated by the Apex Court and the language used in Section 323. Cr.P.C. I am of the view that it was open for the Magistrate to take cognizance of offence under Section 316 of the Penal Code after submission of charge-sheet looking into the case record. If the learned Magistrate failed to take cognizance at that stage and took cognizance of offences in respect of which charge-sheet had been filed he has no authority to take further cognizance on the basis of an application filed by the A.P.P. in exercise of powers under Section 323 of the Cr.P.C. as by that time enquiry was over and trial had not commenced. It was open for the learned Magistrate to take cognizance of the other offence at the time of trial and has no jurisdiction to take cognizance again in respect of any other offence after conclusion of inquiry and before commencement of trial. TI