The Madhya Pradesh High Court recently comprising of a bench of Justice S. K. Singh held that a JMFC who had taken cognizance of a matter and committed the same to sessions court, can also entertain an application under Section 200 CrPC later, to implead other co-accused in the same crime.(Rakesh And Ors. Versus Ismail And Ors.)
Facts of the case
The Complainant had lodged an FIR against the accused persons regarding a property dispute. The matter was investigated by the police which then submitted its report to the JMFC. The court took cognizance of the matter based on the chargesheet and committed the same to the sessions court. The Complainant then moved an application under Section 200 CrPC to implead the Applicants and two of the Respondents in the same crime.
This petition was filed under Section 482 of Cr.P.C. for quashing the order passed by the Court of 2nd Additional Sessions Judge, Mandsaur, whereby the order passed by the Court of Judicial Magistrate First Class [in short JMFC], Mandsaur in “Ismail Vs. Raees and others” rejecting the unregistered criminal complaint filed by the respondent No.1 against the applicants and respondents No. 2 & 3 under Section 200 of Cr.P.C. for the offences punishable under Section 420, 465, 467, 468, 471 and 120-B of IPC was set aside and the matter was remanded back to the Court of JMFC, Mandsaur for adjudicating the same on merits.
Contention of the Parties
Learned counsel for the applicants submitted that the Court of JMFC, Mandsaur taking cognizance in the matter has committed the case to the Court of Sessions Judge, then the Court of JMFC cannot take cognizance again. Learned revisional Court without appreciating the judgment passed by the Full Bench of Hon'ble Supreme Court in the case of Dharmpal and others Vs. State of Haryana (2014) 3 SCC 306, has passed the impugned order, which is not sustainable. Respondent No.1 ought to have filed the protest petition before the Judicial Magistrate instead of filing a separate private complaint. He further submitted that at the present stage only remedy is to approach the Sessions Court under Section 319 of Cr.P.C. Hence, the present petition is liable to be allowed.
Learned counsel for the respondent No.4/State has opposed the prayer and submits that as stated in the impugned order that summoning other persons would only be a part of the process taking cognizance, therefore, it cannot be said that the Court of JMFC cannot summon the applicants and respondents No.2 & 3 in the matter, wherein cognizance was taken earlier. The petition is devoid of merits and liable to be dismissed.
Courts Observation and order
The bench taking note of the contention of the Parties remarked, "There is no doubt that it is a well settled position of law that cognizance of an offence can only be taken once and perusal of the order dated 11.07.2018, passed by the learned Court of JMFC, indicates that in the instant case initially the cognizance of the offence was taken by the Court of JMFC itself. Hence, it cannot be said that the Court of JMFC had played a “passive role” while committing the case to the Court of Session. In such a scenario the proceeding with regard to issuance of summons to other persons, involved in the crime has to be conducted by the same Court i.e. the Court of JMFC, who had taken the cognizance in the matter as cognizance of the same offence can not be deemed to be taken a second time by the Sessions Court."
The bench at the very outset observed, "In view of the aforesaid legal position it is clear that the process of summoning other persons, involved in the crime is only a part of the process of taking cognizance and if a Private Criminal Complaint u/S 200 of Cr.P.C. has been filed for impleading other persons as accused making allegations that the police is intentionally not taking action against them, then certainly the same can only be considered by the Court of JMFC, who had taken the cognizance in the matter."
The bench dismissing the appeal remarked, "Hence, in view of the aforesaid discussion this petition is partly allowed only to the extent that direction given to the applicants to remain present before the trial Court on 12.8.2021 and the impugned order passed by the revisional Court in this regard is set aside. So far as the rest part of the impugned order is concerned, this Court is of the considered view that there is no illegality or jurisdictional error warranting interference of this Court under Section 482 of Cr.P.C., therefore, the petition in this regard stands dismissed with a direction that the learned trial Court shall decide the criminal complaint filed by the respondent No.1 on merit as per law."
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