Once cognizance is taken, magistrate cannot review own order and drop provisions: Allahabad High Court

The Court also underscored that the power under Article 227 of the Constitution was limited, and did not vest it with an unlimited prerogative to correct all species of hardship or wrong decisions.
Allahabad High Court
Allahabad High Court

The Allahabad High Court on Monday held that once a magistrate takes cognizance of offences under the Indian Penal Code (IPC), they has no power to review their own order and drop a provision [Jagveer v. State Of UP]

Justice Raj Beer Singh upheld orders of the Chief Judicial Magistrate and Sessions Court rejecting an application moved by the petitioner to withdraw cognizance taken in relation to only one of the provisions, Section 308 (attempt to commit culpable homicide) of the IPC.

"It may be observed that once the Magistrate has taken cognizance for offences under section 147/323/324/325/504/506/308 IPC, it has no power to review its own order for dropping the section 308 IPC from the cognizance. Section 308 IPC is a session triable case and petitioner would have opportunity before the Sessions Court at the time of charge to raise the plea that no offence under section 308 IPC is made out," the Court opined.

The petitioner submitted that a First Information Report (FIR) was lodged against him for the offences under Sections 147 (rioting), 323, 324 (voluntarily causing hurt), 325 (voluntarily causing grievous hurt), 504 (intentional insult) and 506 (criminal intimidation) of the IPC. However, during investigation, Section 308 was added.

It was stated that despite the injury report reflecting that no case under Section 308 was made out, the magistrate took cognizance. Further, both the magistrate and the sessions judge refused to entertain applications seeking to withdraw cognizance.

The High Court, while deciding on the challenge, began by examining the scope of judicial review in appeals under Article 227, stating that as per settled provisions of law, it was very limited.

"Thus, it is apparent that the power under article 227 of the Constitution is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. This power is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the competent statutory authority merely on the ground of insufficiency of evidence," Justice Singh noted after going through judgments on the issue.

With this, the Court concluded that the revisional court had considered the matter in a correct perspective, and the petition was dismissed.

Advocate Sumit Goyal appeared for the petitioner while the respondents were represented by Government Advocate Mohd Aslam Ansari.

[Read Order]

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