RAJENDRA RAJORIYAversusJAGAT NARAIN THAPAK AND ANOTHER

                        [2018] 2 S.C.R. 499                              499


                     RAJENDRA RAJORIYA                                   A
                                  v.
          JAGAT NARAIN THAPAK AND ANOTHER
                 (Criminal Appeal No. 312 of 2018)
                       FEBRUARY 23, 2018                                 B
        [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
      Code of Criminal Procedure, 1973: s.397 and s.398 –
Revision – Scope of – Complaint alleging cheating, filed by
appellant, dismissed by the magistrate for lack of evidence – On
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revision, Session judge concluded that the trial court did not
appreciate the facts as well as the law in a proper manner and
remanded the case – On remand, magistrate took cognizance of the
offences and registered the complaint – Meanwhile, aggrieved by
the remand order and order taking cognizance, respondent sought
revision – High Court allowed the revision petition and quashed          D
the complaint on the reason that the revisional court could not have
taken cognizance as the same was in violation of s.398 – Legality
of remand order passed by Sessions Court and the order of
Magistrate taking cognizance thereafter challenged in the instant
appeal – Held: High Court erred in concluding that the Sessions
                                                                         E
Court had itself taken cognizance of the matter – Sessions Court
merely ordered remand for further enquiry – The observations made
by the Sessions Court were only justification for a remand and the
same did not amount to taking cognizance – High Court clearly
misconstrued the Sessions Court order and proceeded on an
erroneous footing – On the other hand, the revisional court was          F
also in error to the extent of influencing the Magistrate Court to
keep the findings of Sessions Court in mind, while considering the
case on remand – The misconception created before the High Court
was due to the fact that the remand order provided discretion for
the trial court to conduct further enquiry and thereafter consider
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issuing process – The impugned order of the High court cannot be
sustained in the eyes of law – As regards the legality of the order of
the Magistrate taking cognizance of the matter, the Magistrate while
taking cognizance has to satisfy himself about the satisfactory
grounds to proceed with the complaint and at this stage the
consideration should not be whether there is sufficient ground for       H
                                499
500            SUPREME COURT REPORTS                      [2018] 2 S.C.R.


A     conviction – At the stage of taking cognizance, the Magistrate is
      also not required to record elaborate reasons but the order should
      reflect independent application of mind by the Magistrate to the
      material placed before him – A perusal of the order of the Magistrate
      taking cognizance, show that the Magistrate observed that the
      Sessions court has already made out a prima facie case – Such
B
      finding is not sustainable as the revisional court only observed
      certain aspects in furtherance of remanding the matter – Trial court
      to consider the complaint afresh.
            Allowing the appeal, the Court
C           HELD: 1. A perusal of Sections 397 and 398 provisions
      portray that the revisionary power is exercised either by the
      Sessions Court or by the High Court and a dismissal of the
      complaint by the Magistrate under Section 203 of Cr.P.C may be
      assailed in a criminal revision under Section 397 of Cr.P.C.
      Section 397 of Cr.P.C empowers the Sessions Judge to call for
D     and examine the record of any proceeding before any subordinate
      criminal court situate within its jurisdiction for the purpose of
      satisfying itself as to the correctness, legality or propriety of any
      finding, sentence or order recorded or passed, and as to the
      regularity of any proceedings of such subordinate Court. The
E     extent of the revisionary powers inter alia, is provided under
      Section 399 read with Section 401 of Cr.P.C. It is clear from the
      said provisions that Section 398 has to be read along with other
      Sections which are equally applicable to the revision petitions
      filed before the Sessions Court. Section 398 only deals with a
      distinct power to direct further inquiry, whereas Section 397 read
F     with Section 399 and Section 401 confers power on the revisionary
      authority to examine correctness, legality or propriety of any
      findings, sentence or order. The powers of the revisionary court
      have to be cumulatively understood in consonance with Sections
      398, 399 and 401 of Cr.P.C. [Paras 12, 13] [505-B-F]
G           2. The High Court, in the impugned judgment, came to an
      erroneous conclusion that the Sessions Court had itself taken
      cognizance of the matter. The Sessions Court order should have
      been construed only as a remand order for further enquiry. The
      observations made by the Sessions Court were only justification
H     for a remand and the same did not amount to taking cognizance.
  RAJENDRA RAJORIYA v. JAGAT NARAIN THAPAK AND                          501
                    ANOTHER

The misconception created before the High Court was due to              A
the fact that the remand order provided discretion for the trial
court to conduct further enquiry and thereafter consider issuing
process. The High Court in the case at hand without appreciating
the dichotomy between taking cognizance and issuing summons,
quashed the complaint itself on wrong interpretation of law. In
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the light of the above, the impugned order of the High court
cannot be sustained in the eyes of law. [Paras 14, 15] [505-F;
506-A-B, C-D]
       3. As regards the legality of the order of the Magistrate
taking cognizance of the matter, the Magistrate while taking
cognizance has to satisfy himself about the satisfactory grounds        C
to proceed with the complaint and at this stage the consideration
should not be whether there is sufficient ground for conviction.
At the stage of taking cognizance, the Magistrate is also not
required to record elaborate reasons but the order should reflect
independent application of mind by the Magistrate to the material       D
placed before him. A perusal of the order of the Magistrate taking
cognizance, show that the Magistrate observed that the Sessions
court has already made out a prima facie case. Such finding would
be difficult to sustain as the revisional court only observed certain
aspects in furtherance of remanding the matter. Such
observations could not have been made by the Magistrate as he           E
was expected to apply his independent mind while taking
cognizance. There is no dispute that justice should not only be
done, but should manifestly and undoubtedly be seen to be done.
It is wrought in our constitutional tradition that we imbibe both
substantive fairness as well as procedural fairness under our           F
criminal justice system, in the sense of according procedural
fairness, in the making of decisions which affect rights, interests
and legitimate expectations, subject only to the clear manifestation
of a contrary statutory intention. [Paras 16, 17] [506-F-H; 507-A-C]
      Subramanian Swamy v. Manmohan Singh & Another                     G
      (2012) 3 SCC 64 : [2012] 3 SCR 52 – relied on
                    Case Law Reference
[2012] 3 SCR 52              relied on            Para 16
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 312 of 2018                                                         H
502             SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A           From the Judgment and Order dated 08.07.2014 by the High Court
      of Madhya Pradesh Bench at Gwalior in Criminal Revision No. 104 of
      2013.
             Raj Kishor Choudhary, Shakeel Ahmed A. K. Shrivastava, Advs.
      for the Appellant.
B          Ms. Prachi Mishra, Arjun Garg, Chaitanya, Suneet Padhi,
      Ms. Pragya Garg, Harshvardhan Jha, Ms. Yugandhara Pawar Jha,
      Ms. Mayuri Shukla, Adarsh Upadhyay, Advs. for the Respondents.
            The Judgment of the Court was delivered by

C           N. V. RAMANA, J. 1. Leave granted.
            2. In this criminal appeal the judgment dated 08.07.2014, passed
      by the High Court of Madhya Pradesh, bench at Gwalior in Criminal
      Revision No. 104/2013 is impugned.
             3. Appellant herein filed a complaint before the jurisdictional police
D     station under Sections 420, 467, 468, 471,120B, 506 of Indian Penal Code,
      1860 [hereinafter referred as ‘IPC’ for brevity] and under Section 3
      of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
      Act, 1989 on the allegations that one Smt. Vidhyabai and others sold the
      disputed land to respondent no. 1 and got the appellant’s property mutated
      by committing fraud and forgery. It was further alleged that the
E
      respondents had threatened the appellant with dire consequence and
      swore at them with filthy language intended to belittle his caste/tribe. It
      may be noted that the concerned police station did not take any action
      on the aforesaid complaint.
            4. Aggrieved by the inaction of the police, the appellant approached
F
      the Jurisdictional Magistrate, Gwalior, with the same set of facts under
      Section 200 of Cr.P.C.
             5. The Judicial Magistrate, 1st Class, Gwalior, by Order dated
      21.04.2012, dismissed the aforesaid criminal complaint on the footing
      that there was no sufficient proof on record provided by the appellant/
G     complainant to prove that he belongs to Scheduled Caste or Scheduled
      Tribe and the dispute between the parties had trappings of civil nature.
             6. Aggrieved by the aforesaid dismissal of criminal complaint,
      appellant approached Addl. District and Sessions Judge [hereinafter
      referred as ‘Sessions Court’ for brevity] in Criminal Revision No. 242/2012.
H
  RAJENDRA RAJORIYA v. JAGAT NARAIN THAPAK AND                                 503
            ANOTHER [N. V. RAMANA, J.]

The Sessions Court, by the order dated 07.12.2012, held that the               A
complainant belonged to Jatav community which is a Scheduled Caste.
Further the Sessions Court observed that the facts narrated portray that
the respondent no. 1 in conspiracy with others had transferred the land
belonging to the appellant in an illegal manner. Thereafter, concluded
that the lower court did not appreciate the facts as well as the law in a
                                                                               B
proper manner and remanded the case in the following manner: -
       This revision is allowed and order dated 21.04.2012 passed by
       Court is set aside and case is remanded back with a direction
       that if necessary after a further enquiry keeping in view the
       findings given in this order, proper order be passed with regard
       to registration of complaint and to summon the respondents and          C
       for that directed the parties to remain present before the Court
       below on 20.12.2012.
                                                      (Emphasis supplied)
      7. On remand of the case, Judicial Magistrate, vide order dated          D
23.01.2013, while taking cognizance of the aforesaid offences under
Section 420, 467, 471, 120-B of IPC and 3(1)(4) of SC/ST Act, registered
the complaint as Criminal Case No. 1576/2013 and on 23-02-2013,
learned Magistrate noted as under-
       ...the court is required to prima facie decide question of initiating   E
       proceeding arises or not. It is pertinent that in this case learned
       Revisional Court has prima facie already found sufficient ground
       for initiating proceeding against non-applicants.
                                                      (emphasis supplied)
      8. In the meanwhile, aggrieved by the remand order dated                 F
07.12.2012 passed by the Sessions Court and the order of the Magistrate,
dated 23.01.2013, taking cognizance, the respondent filed revision before
the High Court being Criminal Revision No. 104/2013. By the impugned
judgment dated 08.07.2014, the High Court allowed the revision petition
and quashed the complaint on the reason that the revisonal court could
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not have taken cognizance on 23.01.2013 as the same was in violation
of Section 398 of Cr.P.C.
      9. We have heard learned counsels appearing on behalf of both
the parties.
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504            SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A            10. The questions that fall for consideration are in regard to the
      legality of the remand order passed by the Sessions Court and the order
      of the learned Magistrate taking cognizance thereafter. As the High
      Court has dealt with the validity of both the orders, we would like to take
      up the same in seriatum starting with legality of the remand order.
B            11. The respondent contends that the learned Sessions Judge could
      not have observed on merits as it amounted to taking cognizance of the
      matter. Such contentions although seems attractive, but must be rejected
      for reason that the revisional court only had provided reasons for ordering
      further enquiry under Section 398 of Cr.P.C and the observations provided
      on merit cannot be said to have an effect of taking cognizance in this
C     case.
             12. At the outset, before we decide the legality of the remand
      order, we are required to determine the scope of criminal revision under
      Section 397 read with Section 398 of Cr.P.C. It would be appropriate to
      reproduce Sections 397 and 398 of Cr.P.C herein.
D
              Section 397. Calling for records to exercise powers of revision.
              (1) The High Court or any Sessions Judge may call for and
              examine the record of any proceeding before any inferior Criminal
              Court situate within its or his local jurisdiction for the purpose of
              satisfying itself or himself as to the correctness, legality or
E             propriety of any finding, sentence or order,- recorded or passed,
              and as to the regularity of any proceedings of such inferior Court,
              and may, when calling for such record, direct that the execution
              of any sentence or order be suspended, and if the accused is in
              confinement, that he be released on bail or on his own bond
F             pending the examination of the record.
              Explanation- All Magistrates whether Executive or Judicial, and
              whether exercising original or appellate jurisdiction, shall be
              deemed to be inferior to the Sessions Judge for the purposes of
              this sub- section and of section 398.
G             Section 398. Power to order inquiry.
              On examining any record under section 397 or otherwise, the
              High Court or the Sessions Judge may direct the Chief Judicial
              Magistrate by himself or by any of the Magistrates subordinate
              to him to make, and the Chief Judicial Magistrate may himself
              make or direct any subordinate Magistrate to make, further inquiry
H
  RAJENDRA RAJORIYA v. JAGAT NARAIN THAPAK AND                                  505
            ANOTHER [N. V. RAMANA, J.]

        into any complaint which has been dismissed under section 203           A
        of Sub-Section (4) of section 204 or into the case of any person
        accused of an offence who has been discharged:
        Provided that no Court shall make any direction under this section
        for inquiry into the case of any person who has been discharged
        unless such person has had an opportunity of showing cause              B
        why such direction should not be made.
A perusal of the aforesaid provisions portray that the revisionary power
is exercised either by the Sessions Court or by the High Court and a
dismissal of the complaint by the Magistrate under Section 203 of Cr.P.C
may be assailed in a criminal revision under Section 397 of Cr.P.C. The
                                                                                C
ambit of revisional jurisdiction is well settled. Section 397 of Cr.P.C
empowers the Sessions Judge to call for and examine the record of any
proceeding before any subordinate criminal court situate within its
jurisdiction for the purpose of satisfying itself as to the correctness,
legality or propriety of any finding, sentence or order recorded or passed,
and as to the regularity of any proceedings of such subordinate Court.          D
       13. The extent of the revisionary powers inter alia, is provided
under Section 399 read with Section 401 of Cr.P.C. It is clear from the
aforesaid provisions that Section 398 has to be read along with other
Sections which are equally applicable to the revision petitions filed before
the Sessions Court. Section 398 only deals with a distinct power to direct      E
further inquiry, whereas Section 397 read with Section 399 and Section
401 confers power on the revisionary authority to examine correctness,
legality or propriety of any findings, sentence or order. The powers of
the revisionary court have to be cumulatively understood in consonance
with Sections 398, 399 and 401 of Cr.P.C.
                                                                                F
      14. We may note that the High Court, in the impugned judgment,
came to an erroneous conclusion that the Sessions Court had itself taken
cognizance of the matter which may be reproduced as under-
        “On bare perusal of this provision it is clear that the impugned
        order cannot be passed under Section 398 of the Code. The               G
        word ‘may direct’ has been used by the legislation in this provision.
        It gives wide discretion to the court to order further enquiry.
        Sessions Court has no power to take cognizance of the offence,
        assess the offence and reach its own conclusion whether there
        is ground for proceeding with complaint or not and further to
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506             SUPREME COURT REPORTS                          [2018] 2 S.C.R.


A             direct a Magistrate with regard to registration of a complaint on
              finding a prima facie case”.
             15. On a perusal of the Sessions Court judgment (quoted supra),
      we are of the opinion that the Sessions Court did not pass an order
      taking cognizance. The Sessions Court order should have been construed
B     only as a remand order for further enquiry. The observations made by
      the Sessions Court were only justification for a remand and the same did
      not amount to taking cognizance. In view of the above, the High Court
      clearly misconstrued the Sessions Court order and proceeded on an
      erroneous footing. On the other hand, the revisional court was also in
      error to the extent of influencing the Magistrate Court to keep the findings
C     of Sessions Court in mind, while considering the case on remand. The
      misconception created before the High Court was due to the fact that
      the remand order provided discretion for the trial court to conduct further
      enquiry and thereafter consider issuing process. The High Court in the
      case at hand without appreciating the dichotomy between taking
D     cognizance and issuing summons, quashed the complaint itself on wrong
      interpretation of law. In the light of the above, the impugned order of the
      High court cannot be sustained in the eyes of law.
             16. Now coming to the second aspect as to the legality of the
      order of the learned Magistrate taking cognizance of the matter. The
E     standard required by the Magistrate while taking cognizance is well settled
      by this court in catena of judgments. In Subramanian Swamy vs.
      Manmohan Singh & Another, (2012) 3 SCC 64, this Court explained
      the meaning of the word ‘cognizance’ holding that “...In legal parlance
      cognizance is taking judicial notice by the court of law, possessing
      jurisdiction, on a cause or matter presented before it so as to decide
F     whether there is any basis for initiating proceedings and
      determination of the cause or matter judicially”. We may note that
      the Magistrate while taking cognizance has to satisfy himself about the
      satisfactory grounds to proceed with the complaint and at this stage the
      consideration should not be whether there is sufficient ground for
G     conviction. It may not be out of context to note that at the stage of taking
      cognizance, the Magistrate is also not required to record elaborate reasons
      but the order should reflect independent application of mind by the
      Magistrate to the material placed before him.
            17. On a perusal of the order of the learned Magistrate taking
H     cognizance, it is apparent that the learned Magistrate observes that the
   RAJENDRA RAJORIYA v. JAGAT NARAIN THAPAK AND                                 507
             ANOTHER [N. V. RAMANA, J.]

Sessions court has already made out a prima facie case. Such finding            A
would be difficult to sustain as the revisional court only observed certain
aspects in furtherance of remanding the matter. Such observations could
not have been made by the Magistrate as he was expected to apply his
independent mind while taking cognizance. In the case on hand, we
recognize the limitation on the appellate forum to review subjective
                                                                                B
satisfaction of the Magistrate while taking cognizance, but such
independent satisfaction unless reflected in the order would make it
difficult to be sustained. There is no dispute that Justice should not only
be done, but should manifestly and undoubtedly be seen to be done. It is
wrought in our constitutional tradition that we imbibe both substantive
fairness as well as procedural fairness under our criminal justice system,      C
in the sense of according procedural fairness, in the making of decisions
which affect rights, interests and legitimate expectations, subject only to
the clear manifestation of a contrary statutory intention.
       18. On a different note, we may note that the Magistrates across
India have been guided on number of occasions by concrete precedents            D
of this Court to exercise utmost caution while applying their judicious
mind in this regard. Unfortunately, we may note that number of cases
which are brought before us reflects otherwise.
      19. Our attention was drawn to the fact that a civil court
subsequently declared the sale deed executed by Smt. Vidhyabai and              E
others in favour of Jagat Narain Thapak as null and void. Further we are
apprised of observations made by the Sessions Court on the merits of
the case. But we are not inclined to go into those issues.
      20. In view of the above, the appeal is allowed and the impugned
judgment is set aside. Accordingly, the complaint be considered by trial        F
court afresh. Before parting with this case, we may clarify that the trial
court is directed to proceed with the case uninfluenced by any
observations made by this Court for the purpose of deciding the instant
appeal.

                                                                                G
Devika Gujral                                                 Appeal allowed.




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