HIRA LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Through this misc. petition, petitioners Hiralal and six others have called in question the order dated 2-5-1998 passed by the learned Addl. Sessions Judge No. 2, Udaipur whereby he rejected the revision filed by the petitioners preferred against the order dated 5-4-1997 of the Addl. Chief Judicial Magistrate, Salumber.

(2.) The short facts of the case are that for the death of Smt. Hema, Ashok Kumar had lodged F.I.R. No. 285/86 under Sections 304-B, 120-B, 306, 498-A, 201 and 406, IPC at Police Station Salumber and after investigation the police submitted a challan against Prakash, husband of the deceased only and submitted a report under Section 169, Cr.P.C. against two other accused named in the F.I.R. Thereafter the learned Magistrate committed the case to the Court of Sessions vide order dated 14-3-1997. After that on 17-3-1997 complainant chose to file private complaint on 17-3-1997 making allegations against the petitioners, on which the learned Magistrate recorded the evidence under Sections 200 and 202, Cr.P.C. and vide order dated 5-4-1997 summoned the petitioners as accused in the case. This order was challenged before the learned Sessions Judge by way of revision petition. The revision was heard by Addl. Sessions Judge No. 2 who vide impugned order upheld the order passed by the Magistrate.

(3.) The contention of Mr. Mehta is twofold. One, the Magistrate had already taken cognizance of the offences on the police report under Section 190(b), Cr.P.C. on the basis of police report and he had no power to take cognizance of the same offence on the private complaint subsequently as the taking of cognizance of the same offence twice is not permissible. Two, the Magistrate had already committed the case to the Court of Sessions vide order dated 14-3-1997, and therefore, he had become functus officio so far as the cognizance of the offence under S. 190, Cr. P.C. is concerned, and hence he has committed error in proceeding to record the evidence of the complainant in the private complaint.