MOTI LAL SONGARAversusPREM PRAKASH @ PAPPU AND ANR.

                       [2013] 6 S.C.R. 496


A                     MOTi LAL SONGARA
                                 v.
             PREM PRAKASH @ PAPPU AND ANR.
               (Criminal Appeal No. 785 of 2013)
                          MAY 16, 2013
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.)

        Code of Criminal Procedure, 1973 - s.190(1)(b) - Orde
  of Magistrate taking cognizance against accused-responder'
C no. 1 - Held: On facts, cannot be found fault with - Thi
  Magistrate took cognizance on the basis of facts brought ft
  his notice by the appellant-informant and, therefore, he, ir
  fact, exercised power uls.190(1)(b) CrPC - Penal Code, 186C
  - SS. 307, 323, 324 & 341.
D
        Criminal Trial - Suppression of fact by accused - Fraud
  on Court - Cognizance of offences by Magistrate - Charges
  framed by Sessions Judge - Order of quashment of summons
  obtained by fjccused-respondent no. 1 from another Sessions
E Judge hearin,g revision against the order of the Magistrate by
  calculated concealment of facts - Held: Though respondent
  no. 1 was fully aware about the fact that charges had been
  framed against him by the Sessions Judge, yet he did not
  bring the same to the notice of the other Sessions Judge
  hearing revision against the order of the Magistrate taking
F cognizance - As the order of quashment of summons was
  obtained by practising fraud and suppressing material fact
  before a court of law to gain advantage, power u/Artic/e 142
  of the Constitution invoked to do complete justice between the
  parties - Order of quashment of summons accordingly set
G aside - Order framing charges restored - Trial directed to
  continue - Penal Code, 1860 - ss. 307, 323, 324 & 341 -
  Maxims - "supressio veri, expression faisi'' - Constitution of
  India, 1950 - Art. 142.

H                              496
MOTi LAL SONGARA v. PREM PRAKASH @ PAPPU 497
                AND ANR.
     The appellant lodged FIR, on the basis of which         A
charge sheet was placed against one 'S'. Subsequently,
the appellant filed application before the Magistrate,
asseverating that respondent no.1, who had attacked his
son with knife had not been made an accused. By order
dated 19-11-2008, the Magistrate took cognizance against     B
respondent no.1 and summoned him. Accordingly, both
'S' and respondent no.1, were sent up for sessions trial.
The Sessions Judge, No. 3 by order dated 27-7-2009,
framed charges against respondent no.1.

    Respondent no.1 challenged order dated 19-11-2008
                                                             c
of the Magistrate in Criminal Revision No. 7 of 2009
before Sessions Judge, No. 1, without bringing to its
notice the order dated 27-7-2009 passed by Sessions
Judge, No. 3. The Sessions Judge, No. 1 by order dated
14-10-2009 set aside the order of the Magistrate.            0

     Subsequently, respondent no.1 filed applic~tion
seeking discharge. The trial Judge declined to discharge
respondent no.1. He preferred Criminal Revision No. 327
of 2011 before the High Court which quashed the charges      E
framed against him for the offences punishable under
Sections 323, 324 and 307 IPC on the foundation that the
order dated 19-11-2008 passed by the Magistrate taking
cognizance and issuing summons had already been set
aside by the revisional Court i.e. Sessions Judge, No. 1,    F
in Criminal Revision No. 7 of 2009.The High Court held
that when the order dated 14-10-2009 passed by Sessions
Judge No.1 setting aside the order taking cognizance
was not challenged, the very basis of the continuance of
the proceeding had become extinct and, therefore, the        G
order of framing of charges could not be sustained.

    In the instant appeal, the appellant contended that
respondent no.1 had not approached the court with clean
hands and the High Court should not have interfered with
the order of trial Judge declining to discharge respondent   H
    498      SUPREME COURT REPORTS           [2013] 6 S.C.R.


A no.1. Per contra, respondent No. 1 contended that once
  the order taking cognizance had gone unchallenged, it
  was obligatory on the part of the High Court to direct a
  discharge; and that apart, the Magistrate could not have
  taken cQgnizance in exercise of power under Section 190
B CrPC.

          Allowing the appeal, the Court

      HELD: 1. The order of Magistrate taking cognizance
  against the first respondent cannot be found fault with.
C The Magistrate took cognizance on the basis of facts
  brought to his notice by the appellant-informant and,
  therefore, he has, in fact, exercised the power under
  Section 190(1){b) CrPC. [Para 17] [509-D-E]

0       Mis. India Carat Pvt. Ltd. v. State of Karnataka and
    another (1989) 2 SCC 132: 1989 (1) SCR 718 and Uma
    Shankar Singh v. State of Bihar and another (2010) 9 SCC
    479: 2010 (10) SCR 1132 - relied on.

      Kalamudeen and others v. State of Rajasthan and
E another 2005 (2) Cr.L.R. (Raj.) 1118; Natthi Singh v. State
  of Rajasthan and another 2007 (1) Cr.LR. (Raj.) 621 Ranjit
  Singh v. State of Punjab (1998) 7 SCC 149: 1998 (2) Suppl.
  SCR 8; Raj Kishore Prasad v. State of Bihar (1996) 4 SCC
  495: 1996 (2) Suppl. SCR 125; Kishun Singh v. State of
F Bihar(1993) 2 SCC 16: 1993 (1) SCR 31; Kishori Singh and
  others v. State of Bihar and another (2004) 13 sec 11;
  Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117: 1967
  SCR 668; H.S. Bains v. State (1980) 4 SCC 631: 1981 (1)
  SCR 935; Dharam Pal and others v. State of Haryana and
G another (2004) 13 SCC 9; Rajinder Prasad v. Bashir (2001)
  8 SCC 5221 2001 (3) Suppl. SCR 156; SWIL Ltd. v. State of
  Delhi (2001) 6 SCC 670: 2001 (1) Suppl. SCR 527 - referred
  to.

          2. Though respondent no.1 was fully aware about
H
MOTi LAL SONGARA v. PREM PRAKASH @ PAPPU 499
                AND ANR.
the fact that charges had been framed against him by the A
trial Judge, yet he did not bring the same to the notice of
the revisional court hearing the revision against the order
taking cognizance. It is a clear case of suppression. It
was within the special knowledge of the accused.
Anyone who takes recourse to method of suppression B
in a court of law, is, in actuality, playing fraud with the
court, and the maxim supressio veri, expression faisi, i.e.,
suppression of the truth is equivalent to the expression
of falsehood, gets attracted. There has been a calculated
concealment of the fact before the revisional court. It can c
be stated with certitude that the accused-respondent
tried to gain advantage by such factual suppression. The
fraudulent intention is writ large. In fact, he has shown
his courage of ignorance and tried to play possum. The
High Court applied the principle "when infrastructure
                                                              0
collapses, the superstructure is bound to collapse".
However, as the order has been obtained by practising
fraud and suppressing material fact before a court of law
to gain advantage, the said order cannot be allowed to
stand. Under these circumstances, the power under
Article 142 of the Constitution is required to be invoked E
to do complete justice between the parties. Cognizance
of the offences had been rightly taken by the Magistrate
and charges have been correctly framed by the trial
Judge. A victim of a crime has as much right to get justice
from the court as an accused who enjoys the benefit of F
innocence till the allegations are proven against him. In
the case at hand, when an order of quashment of
summons has been obtained by suppression, this Court
has an obligation to set aside the said order and restore
the order framing charges and direct the trial to go on. G
Consequently, the order passed by the High Court in
Criminal Revision No. 327 of 2011 and the order passed
by the Sessions Judge, No.1, in Criminal Revision No. 7
of 2009 are set aside and it is directed that the trial which
is pending before the Sessions Judge, No. 3, shall H
    500      SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A   proceed ir11 accordance with law. [Paras 18, 19] (509-F-G,
    H; 510-A-G]

                          Case Law Reference:
          2005 (~)Cr.LR. (Raj.) 1118 referred to         Para 4
B
          2007 (1) Cr.LR. (Raj.) 621    referred to      Para 4
          1998 (2) Suppl. SCR 8         referred to      Para 11
          1996 (~) Suppl. SCR 125       referred to      Para 11
c         1993 (1) SCR 31               referred to      Para 11
          (2004) 13 sec 11              referred to      Para 12
          1989 (11) SCR 718             relied on        Para 13

D         1967 SCR 668                  referred to      Para 13
          1981 (1) SCR 935              referred to      Para 13
          (2004) 13 sec 9               referred to      Para 14
          2001 (3) Suppl. SCR 156       referred to      Para 14
E
          2001 (1). Suppl. SCR 527      referred to      Para 14

          2010 (1Q) SCR 1132            relied on        Para 15

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F   No. 785 of 2013.

        From thE;! Judgment and order dated 13.08.2012 of the
    High Court of Judicature for Rajasthan at Jodhpur in Criminal
    Revision Petition No. 327 of 2011.

G         Madhurima Talia for the Appellant.

         Rishabh $ancheti, T. Mahipal, lmtiaz Ahmed, Naghma
    lmtiaz, Milind Kumar for the Respondents.

          The Judgment of the Court was delivered by
H
MOTi LAL SONGARA v. PREM PRAKASH @ PAPPU 501
                AND ANR.
     DIPAK MISRA, J. 1. Leave granted.                               A

      2. The factual score of the case in hand frescoes a
scenario and reflects the mindset of the first respondent which
would justifiably invite the statement "court is not a laboratory
where children come to play". The action of the accused-             8
respondent depicts the attitude where one calculatedly
conceives the concept that he is entitled to play a game of
chess in a court of law and the propriety, expected norms from
a litigant and the abhorrence of courts to the issues of
suppression of facts can comfortably be kept at bay. Such a          C
proclivity appears to have weighed uppermost in his mind on
the base that he can play in aid of technicalities to his own
advantage and the law, in its essential substance, and justice,
with its divine attributes, can unceremoniously be buried in the
grave. But, an eloquent one, th~ complainant with his committed
and adroit endeavour has allowed the cause to rise like a            D
phoenix from the grave by invoking the jurisdicti9n of this Court
assailing the order passed by the High Court of Judicature of
Rajasthan at Jodhpur in Criminal Revision No. 327 of 2011
whereby the learned single Judge by order dated 13.8.2012
accepted the plea of the accused-respondent and quashed the          E
charges framed against him for the offences punishable under
Sections 323, 324 and 307 of the Indian Penal Code (for short
"I PC") not on the substratum of merits but on the foundation that
the order dated 19.11.2008 passed by the learned Additional
Chief Judicial Magistrate taking cognizance and issuing              F
summons had already been set aside by the Additional District
and Sessions Judge, No. 1, Jodhpur, in Criminal Revision No.
7 of 2009 and, therefore, the principle "when the infrastructure
collapses, the superstructure is bound to collapse" got
attracted. As it appears, though the High Court noticed the          G
various dates, the suppression of facts and the factum that the
accused being fully aware that the charges had been framed
in Sessions Case No. 9 of 2009 by the learned Additional
Sessions Judge, No. 3, Jodhpur on 27.7. 2009, chose not to
inform the revisional court, namely, the learned Additional          H
    502        SUPREME COURT REPORTS               [201·3] 6 S.C.R.


A District and Sessions Judge, No. 1, Jodhpur, yet, possibly
  feeling legally helpless, interfered with the order of framing
  charges and quashed the same granting liberty to the
  prosecution to file an application under Section 319 of the
  Code of Criminal Procedure (for brevity "the Code") at the
B relevant stage.

       3. Presently to the initial factual exposition. The appellant,
  as informant, lodged a First Information Report No. 428 of 2007
  on 23. 11.2007 at Police Station Pratap Nagar, District Jodhpur,
  on the basis of which investigation was carried on and,
C eventual Iy, a charge sheet was placed for the offences
  punishable under Sections 341, 323, 324, 307 and 379 IPC
  against one Shyam Lal s/o Venaram. After the submission of
  the charge-sheet, the informant filed an application before the
D learned .A<dditional Chief Judicial Magistrate No. 2, Jodhpur,
  asseverating that another accused, Prem Prakash, who had
  attacked his son with knife had deliberately not been made an
  accused. The learned Magistrate, as is manifest, after analyzing
  the materials on record, thought it appropriate to take
  cognizance against Prem Prakash @ Pappu for the offences
E punishabl¢ under Sections 323, 324, 307 and 379 IPC and,
  accordingly, summoned him through arrest warrant

        4. Being dissatisfied, accused Prem Prakash called in
  question tl'le legal sustainability of the said order in Criminal
F Revision No. 7 of 2009 which came to be dealt with by the
  learned Additional District and Sessions Judge, No. 1, Jodhpur
  who, after referring to the rulings in Kalamudeen and others
  v. State of Rajasthan and another' and Natthi Singh v. State
  of Rajasthan and anothe~. opined that when the offences were
G triable by a court of Session, the Magistrate could not have
  taken cognizance on the basis of a protest petition and,
  accordingl11. set it aside vide order dated_ 14. 10.2009.


    1.   2005 (2) <;n.LR. (Raj.) 1118.
H 2. 2007 (1) Cr.LR (Raj.) 621.
MOTi LAL SONGARA v. PREM PRAKASH @ PAPPU 503
               AND ANR. [DIPAK MISRA, J.]
                                                 •
     5. Be it noted, on that day, the Additional Public Prosecutor    A
was present but, unfortunately, the informant who was arrayed
as opposite party No. 2 in the revision petition was absent. The
disturbing feature, as is perceptible, is that on the basis of the
cognizance taken by the learned Additional Chief Judicial
Magistrate, both the accused persons, namely, Shyam Lal and           B
Prem Prakash, were sent up for trial and the matter was dealt
with by the learned Additional District and Sessions Judge, No.
3, Jodhpur who, on 27.7.2009, heard the learned counsel for
the parties, the Public Prosecutor and after dwelling upon the
allegations in the FIR, considering the involvement of the            C
accused persons in the crime in question, taking note of the
nature of injuries, adverting to the ingredients of the offence
under Section 307 IPC, prima facie appreciating the credibility
of the witnesses and many other factors, held as follows: -

    " ....... looking to the facts and circumstances of the case,     D
    in the perspective of the principle propounded in the
    abovementioned rulings, prima facie, it appears that due
    to the reason of old enmity the accused persons have
    inflicted a number of injuries by the sharp weapon on the
    body of the victim and therefrom it is clear that common          E
    intention of the accused persons was to attempt to commit
    the murder of the victim Dinesh Kumarc At this stage, it is
    not appropriate to minutely and critically appreciate the
    evidence. From the guidance sought from the
    abovementioned rulings, it is clear that at this stage            F
    compared to the result of the acts committed by the
    accused persons, criminal intention of the accused
    persons is more important. Any fatal injury has not been
    inflicted on any vital part of the body of the victim and only
    on that ground at this stage, it is not justified and lawful to   G
    discharge the accused persons from the offence
    punishable under Section 307 of the Indian Penal Code."

    6. However, as far as the offence under Section 379 IPC
is concerned, he discharged them of the said charge.
                                                                      H
    504     SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A   Ultimately, charges were framed for the offences under Section
    341, 323/34, 324/34, 307 in the alternative under Section 307/
    304 IPC.

       7. We have referred to the said order in detail to highlight
  that the matter was heard at length at the time of framing of
8 charge and arguments were considered seeking discharge.
  However, for the reasons best known to the prosecution and
  to the a:ccused-respondent, it was not brought to the notice of
  the learned Additional District and Sessions Judge No. 1,
  Jodhpur who allowed the revision holding that the order issuing
C summons was not justified. It is really unfathomable as to why
  the sustainability of the order taking cognizance when called
  in question was not heard by the learned Additional District and
  Sessions Judge No. 3, who was dealing with the Sessions
  Case No. 9 of 2009.
D
       8. After the order taking cognizance was set aside in
  revision, an application was filed on 11.1.2010 seeking
  discharge. The learned trial Judge narrated the entire gamut
  of facts 11nd observed that the fact of framing of charges was
E not brought to the notice of the learned Additional District and
  Sessions Judge, No.1, and further the High Court, in Criminal
  Revision No. 1046 of 2009 which was preferred against the
  order of framing of charge, neither set it aside nor modify it and,
  accordingly, did not think it appropriate to discharge the
F accused-respondent.

       9. As the factual matrix would uncurtain, undeterred by his
  conduct, the respondent, Prem Prakash, preferred Criminal
  Revision before the High Court. The learned single Judge of
  the High Court, after chronicling the facts in detail, came to hold
G that when the order dated 14.10.2009 passed by the revisional
  court setting aside the order taking cognizance was not
  challenged, the very basis of the continuance of the proceeding
  had become extinct and, therefore, the order of framing of
  charges could not be sustained. However, as stated earlier, he
H
MOTi LAL SONGARA v. PREM PRAKASH @ PAPPU 505
          AND ANR. [DIPAK MISRA, J.]
granted liberty to the prosecution to file an application under        A
Section 319 of the Code for summoning the additional accused
at the appropriate stage. Be it noted, the High Court has also
observed that the order passed in revision setting aside the
order of cognizance was not justified in law.
                                                                       B
      10. Ms. Madhurima Talia, learned counsel for the appellant,
has submitted that when the accused has not approached the
court in clean hands and the High Court itself has observed that
the order setting aside the order of cognisance was not
justified, it should not have interfered with the order passed by      C
the learned trial Judge declining to discharge the accused. Per
contra, Mr. Rishabh Sancheti, learned counsel for the
respondent No. 1, would contend that the order passed by the
High Court in revision is absolutely impeccable inasmuch as
once the order taking cognizance had gone unchallenged, it
was obligatory on the part of the High Court to direct a               D
discharge. That apart, it is urged by him that the learned
Magistrate could not have taken cognizance in exercise of
power under Section 190 of the Code of Criminal Procedure.
Mr. lmtiaz Ahmed, learned counsel for the State, submitted that
though the State has not challenged the order, yet it is a case        E
where the accused-respondent should not have been
discharged.

      11. First, we shall advert to the legal propriety of the order
taking cognizance by the learned Additional Chief Judicial             F
Magistrate. The learned counsel for the accused-respondent
has submitted with immense vehemence that in view of the
conflicting views, the controversy relating to the power of the
Magistrate under Section 190 of the Code has been referred
to the larger Bench and, hence, the order of taking cognizance         G
is invulnerable. To appreciate the said submission, we think it
seemly to refer to certain pronouncements pertaining to the said
issue. In Ranjit Singh v. State of Punjab 3 , a three-Judge Bench
was dealing with the issue whether the Sessions Court can add
3.   (1998) 1 sec 149.                                                 H
    506       SUPREME COURT REPORTS                  [2013) 6 S.C.R.


A a new person to the array of the accused in a case pending
  before it at a stage prior to collecting any evidence. The three-
  Judge Bench was dealing with the said issue as reservations
  were exp~essed by a two-Judge Bench in Raj Kishore Prasad
  v. State of Bihar4 with regard to the ratio laid down in Kishun
B Singh v. State of Bihar6. The conclusion that has been recorded
  in Ranjit Singh's case is as follows: -

          "19. So from the stage of committal till the Sessions Court
          reaches the stage indicated in Section 230 of the Code,
          that ¢curt can deal with only the accused referred to in
c         Section 209 of the Code. There is no intermediary stage
          till then for the Sessions Court to add any other person to
          the atray of the accused.

          20. Thus, once the Sessions Court takes cognizance of
D         the offence pursuant to the committal order, the only other
          stage when the court is empowered to add any other
          person to the array of the accused is after reaching
          evidence collection when powers under Section 319 of the
          Code can be invoked. We are unable to find any other
E         power for the Sessions Court to permit addition of new
          person or persons to the array of the accused. Of course
          it is riot necessary for the court to wait until the entire
          evidence is collected for exercising the said powers."

F        12. In Kishori Singh and others v. State of Bihar and
    another6, the learned Judges have opined thus: -

          "10. So far as those persons against whom charge-sheet
          has not been filed, they can be arrayed as "accused
          persons" in exercise of powers under Section 319 CrPC
G         when some evidence or materials are brought on record
          in course of trial or they could also be arrayed as "accused
          persons" only when a reference is made either by the
    4.   (1996) 4 sec 495.
    5.   (1993) 2 sec 16.
H   6.   (2004) 13 sec 11
MOTi LAL SONGARA v. PREM PRAKASH @ PAPPU 507
          AND ANR. [DIPAK MISRA, J.]
      Magistrate while passing an order of commitment or by the       A
      learned Sessions Judge to the High Court and the High
      Court, on examining the materials, comes to the conclusion
      that sufficient materials exist against them even though the
      police might not have filed charge-sheet, as has been
      explained in the latter three-Judge Bench decision. Neither     B
      of the contingencies has arisen in the case in hand."

     13. In Mis. India Carat Pvt. Ltd. v. State of Karnataka and
another, a three-Judge Bench, after analyzing the provisions
of the Code, referred to the decisions in Abhinandan Jha v.
Dinesh Mishra8 and H.S. Bains v. State• and, eventually, ruled        C
thus: -

      "The position is, therefore, now well settled that upon
      receipt of a police report under Section 173(2) a
      Magistrate is entitled to take cognizance of an offence         D
      under Section 190(1)(b) of the Code even if the police
      report is to the effect that no case is made out against the
      accused. The Magistrate can take into account the
      statements of the witnesses examined by the police during
      the investigation and take cognizance of the offence            E
      complained of and order the issue of process to the
      accused. Section 190(1 )(b) does not lay down that a
      Magistrate can take cognizance of an offence only if the
      investigating officer gives an opinion that the investigation
      has made out a case against the accused. The Magistrate         F
      can ignore the conclusion arrived at by the investigating
      officer and independently apply his mind to the facts
      emerging from the investigation and take cognizance of
      the case, if he thinks fit, in exercise of his powers under
      Section 190(1 )(b) and direct the issue of process to the       G
      accused."


1.   (1989) 2 sec 132.
8.   AIR 1968 SC 117.
9.   (1980) 4 sec 631                                                 H
    508       SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A         14.~ In Dharam Pal and others v. State of Haryana and
  another'", a three-Judge Bench was dealing with a reference
  to resolve the conflict of opinions in Kishori Singh (supra),
  Rajinder Prasad v. Bashir" and SWIL Ltd. v. State of Delhi' 2 •
  At that juncture, the pronouncements in Kishun Singh (supra)
B and Ranjit Singh (supra) were brought to the notice of the Court.
  After referring to various provisions of the Code, the Bench of
  three learned Judges expressed as follows: -

          "Prima facie, we do not think that the interpretation reached
          in Ranjit Singh case is correct. In our view, the law was
c
          correctly enunciated in Kishun Singh case. Since the
          decision in Ranjit Singh case is of three-Judge Bench, we
          direct that the matter may be placed before the Hon'ble
          the Chief Justice for placing the same before a larger
          Bench."
D
        15. There is no dispute that the reference is still pending.
  In Uma Shankar Singh v. State of Bihar and another13 , a two-
  Judge Bench was dealing with the issue pertaining to the power
  of the Magistrate under Section 190(1)(b) of the Code. After
E taking note of the decisions and the reference order in Dharam
  Pal (supra), the Court accepted the submission that the law is
  well settled that the Magistrate is not bound to accept the final
  report filed by the investigating agencies under Section 173(2)
  of the Code and is entitled to issue process against an
F accused even though exonerated by the said authorities without
  holding any separate enquiry on the basis of the police report
  itself. The learned Judges proceeded to state that even if the
  investigating authority is of the view that no case has been made
  out against an accused, the Magistrate can apply his mind
G independently to the materials contained in the police report and
  take cognizance thereupon in exercise of his powers under
    10. (2004) 13 secs.
    11. c2001) a sec 522.
  12. c2001) s sec s10
H 13. c2010) s sec 479.
MOTi LAL SONGARA v. PREM PRAKASH @ PAPPU 509
          AND ANR. [DIPAK MISRA, J.)        I


Section 190(1 )(b) CrPC.                                               A

     16. In the said case, while dealing with the pendency of a
reference before a larger Bench and also adverting to lhe
pending reference in relation to the lis, the Court observad as
follows: -                                                             B
     " ... it is not necessary to wait for the outcome of the result
     of the reference made to a larger Bench in ·oharam Pal
     case. The reference is with regard to the Magistrate's
     power of enquiry if he disagreed with the final report
     submitted by the investigating authorities. The facts of this     C
     case are different and are covered by the decision of this
     Court in India Carat (P) Ltd. following the line of cases from
     Abhinandan Jha v. Dinesh Mishra onwards."

     17. In view of the aforesaid enunciation of law, we are of        o
the considered view that the order taking cognizance cannot
be found fault with. We may hasten to clarify that the learned
Additional Chief Judicial Magistrate has taken cognizance on
the basis of facts brought to his notice by the informant and,
therefore, he has, in fact, exercised the power under Section          E
190(1)(b) of the Code.

      18. The second limb of the submission is whether in the
obtaining factual matrix, the order passed by the High Court
discharging the accused-respondent is justified in law. We have
clearly stated that though the respondent was fully aware about        F
the fact that charges had been framed against him by the
learned trial Judge, yet he did not bring the same to the notice
of the revisional court hearing the revision against the order
taking cognizance. It is a clear case of suppression. It was
within the special knowledge of the accused. Any one who takes         G
recourse to method of suppression in a court of law, is, in
actuality, playing fraud with the court, and the maxim supressio
veri, expression faisi, i.e., suppression of the truth is equivalent
to the expression of falsehood, gets attracted. We are
compelled to say so as there has been a calculated                     H
    510      SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A concealment of the fact before the revisional court. It can be
  stated with certitude that the accused-respondent tried to gain
  advantage by such factual suppression. The fraudulent intention
   is writ large. In fact, he has shown his courage of ignorance and
  tried to play possum. The High Court, as we have seen, applied
8 the principle "when infrastructure collapses, the superstructure
   is bound tp collapse". However, as the order has been obtained
  by practising fraud and suppressing material fact before a court
  of law to gain advantage, the said order cannot be allowed to
  stand. That apart, we have dealt with regard to the legal
c sustainability of the order in detail. Under these circumstances,
  we are disposed to think that the power under Article 142 of
  the Constitution is required to be invoked to do complete justice
  between the parties. Cognizance of the offences had been
  rightly taken by the learned Magistrate and charges, as we find,
0 have been correctly framed by the learned trial Judge. A victim
  of a crime has as much right to get justice from the court as an
  accused who enjoys the benefit of innocence till the allegations
  are proven against him. In the case at hand, when an order of
  quashment of summons has been obtained by suppression, this
E Court has an obligation to set aside the said order and restore
  the order framing charges and direct the, trial to go on. And we
  so direct.

         19. Oonsequently, the appeal is allowed, the order passed
    by the Higih Court in Criminal Revision No. 327 of 2011 and
F   the order passed by the learned Additional District and
    Sessions Judge, No.1, Jodhpur, in Criminal Revision No. 7 of
    2009 are set aside and it is directed that the trial which is
    pending before the learned Additional District and Sessions
    Judge, No. 3, Jodhpur, shall proceed in accordance with law.
G
    8.8.8.                                        Appeal allowed.