In order to find the answer, we now advert to the appraisal of Dharampal’s Case.
The discussion up to this stage answers the powers of the Magistrate by laying down the principle that even if the case is triable by the Court of Session, the function of the Magistrate is not to act merely as a post office and commit the case to the Court of Session, but he is also empowered to take cognizance, issue process and summon the accused and thereafter commit the case to the Court of Session. The position with regard to that would become clearer once we find the answer that was given by the Constitution Bench to questions at Para’s 7.4 to 7.6 extracted above.
Keeping in view the aforesaid legal position, we may now discuss the circumstances under which the cognizance was taken by the Session Judge. Here is a case where the Police report which was submitted to the Magistrate, the IO had not included the appellants as accused persons. The complainant had filed an application before the learned Magistrate with a prayer to take cognizance against the appellants as well. This application was duly considered and rejected by the learned Magistrate.
The situation, in this case, is, thus, not where the investigation report/charge sheet filed under Section 173(8) of the Code implicated the appellants, and appellants contended that they are wrongly implicated. On the contrary, the Police itself had mentioned in its final report that the case against the appellants had not been made out. This was objected to by the complaint who wanted the Magistrate to summon these appellants as well and for this purpose, the application was filed by the complainant under Section 190 of the Code. The appellants had replied to the said application and after hearing the arguments, the application was rejected by the Magistrate. This shows that the order of the Magistrate was passed with due application of mind whereby he refused to take cognizance of the alleged offense against the appellants and confined it only to the son of the appellants. This order was not challenged. Normally, in such a case, it cannot be said that the Magistrate had played a ‘passive role’ while committing the case to the Court of Session. He had, thus, taken cognizance after due application of mind and playing an “active role” in the process. The position would have been different if the Magistrate had simply forwarded the application of the complainant to the Court of Session while committing the case. In this scenario, we are of the opinion that it would be a case where the Magistrate had taken cognizance of the offense. Notwithstanding the same, the Sessions Court on the similar application made by the complainant before it took cognizance thereupon. Normally, such a course of action would not be permissible.