The Magistrate had no power to discharge the accused for the offence punishable under Section 306 IPC, and the case had to be committed to the Court of Sessions as per Section 209 CrPC. The High Court had the power to set aside the order of the Magistrate in exceptional cases, and the Sessions Judge had the power to discharge the accused under Section 227 CrPC.

Pratibha Rani, J.

1. Feeling aggrieved by the order dated 21.12.2011 passed by learned MM whereby he declined to take cognizance against accused person for committing the offence punishable under Section 306 IPC, this criminal revision petition has been preferred by petitioner Smt. Leelawati, who is mother of the deceased Nisha, as well the complainant in case FIR No.294/2011 under Section 498-A/306 IPC, PS Khazuri Khas, Delhi.

2. At the outset, it is necessary to mention that the impugned order has not been challenged by the State.

3. The grievance of the complainant is that her daughter Nisha died of burn injuries sustained at her matrimonial home. The police registered FIR No.294/2011 under Section 498-A/306 IPC at PS Kahuri Khas on the basis of complaint made by her and thereafter, chargesheet was filed against the accused Deepak Singh (husband) for committing the offence punishable under Section 498-A/306 IPC. On 21.12.2011, the learned MM, after hearing the IO and the SHO and relying upon the alleged dying declaration, formed an opinion that no prima facie case for committing the offence punishable under Section 306 IPC is made out and thereby declined to take cognizance of the offence under Section 306 IPC.

4. Since the other offence, for which the chargesheet was filed, was under Section 498-A IPC, which is triable by Magistrate, the file was sent to Mahila Court.

5. The petitioner has questioned the jurisdiction of the Magistrate in declining to take cognizance against the accused for the offence punishable under Section 306 IPC which is exclusively triable by the Court of Sessions. The petitioner has prayed for setting aside the order dated 21.12.2011 and direction to the Magistrate to commit the case to the Court of Sessions.

6. Notice of the revision petition was given to the State/respondent No.1 as well as sent to respondent No.2.

7. I have heard Mr.Shiv Kumar Sharma, Advocate for the petitioner as well as Mr.Navin Sharma, APP for the State/respondent No.1 and Ms.Sunila Chaudhary, Advocate for respondent No.2.

8. On behalf of respondent No.1/State and respondent No.2, no serious dispute has been raised about the legal position that under Section 209 CrPC, the learned Magistrate had no power to go into the merits of the case to form an opinion whether prima facie offence under Section 306 IPC, which is exclusively triable by the Court of Session, is made out against the accused or not.

9. Despite the fact that the State preferred not to challenge the order dated 21.12.2011 passed by learned Magistrate declining to take cognizance of the offence which is triable by the Court of Sessions, the High Court, in exercise of revisional jurisdiction, can set aside such an order which has been passed by learned MM without such power being vested in him, even at the instance of a private party. This Court has ample power, not only in its revisional jurisdiction, but also under Section 482 CrPC to exercise the power in exceptional cases on noticing glaring defects in the procedure or when there is manifest error on the point of law resulting in flagrant miscarriage of justice.

10. The police, on conclusion of the investigation, had submitted the chargesheet against accused-husband for committing the offence punishable under Section 498-A/306 IPC. After filing of the chargesheet, the Magistrate was required to consider the material placed on record for taking cognizance of the offence.

11. Perusal of the impugned order shows that the learned Magistrate, while taking cognizance, started a process of satisfying himself as to whether the ingredients of Section 306 IPC are satisfied. The reasons primarily given in the impugned order about declining to take cognizance of the offence punishable under Section 306 IPC are that he was, prima facie, of the view that no offence under Section 306 IPC is made out, are as under :-

(i) As per IO and SHO, it was opined to be a judicially weak case by the prosecution;

(ii) The dying declaration m