Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
CASE NO.:
Appeal (crl.) 177 of 2007
PETITIONER:
Anuran Rastogi & Ors
RESPONDENT:
State of U.P. and Anr
DATE OF JUDGMENT: 07/02/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) NO. 3675 OF 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
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.