The Magistrate has the discretion to decide whether to take cognizance of the offence.

ORDER :

The petitioner is aggrieved of the order dated 29th September 2016 by which cognizance of the offence under sections 323, 325, 504/34 of the Indian Penal Code has been taken and the matter was fixed for appearance of Hafiz Kayum, Md. Aajam Ansari, Habibullah Ansari and Chhotu Ansari.

2. Grievance of the petitioner is that though sufficient materials were produced before the Magistrate on the basis of which cognizance of the offence under section 307 of the Indian Penal Code should have been taken, and processes should have been issued as also against the other accused persons against whom charge-sheet was not filed.

3. This criminal revision petition came on Board for hearing on 17th January 2017.

4. On that day further proceeding in connection to Sadar (Satbarwa) PS Case No. 95 of 2016 was stayed by a Coordinate Bench of this Court.

5. This criminal revision petition was listed on 16th February 2022 and at the request of the learned counsel for the petitioner hearing of this criminal revision petition was postponed for today. A request for pass over was made in the morning by Mr. Ankur Anand, the learned vice-counsel, on the ground that Mr. Mahesh Tewari, the learned counsel for the petitioner, was engaged in another Court. After the recess a similar request has been made by Mr. Ankur Anand, the learned vice-counsel appearing on behalf of the petitioner. However, this Court declined the request made by Mr. Ankur Anand, the learned vice-counsel and proceeded to hear the matter.

6. Mr. Ankur Anand, the learned vice-counsel has taken the Court through relevant portions of the judgments in “Jayant v. The State of Madhya Pradesh” (Criminal Appeal No. 824 of 2020), “State of Gujarat v. Girish Radhakrishnan Varde” (2014) 3 SCC 659 and “State of Maharashtra v. Sharadchandra Vinayak Dongre” (1995) 1 SCC 42 to submit that the Magistrate before whom the materials collected during the investigation are produced for the purpose of taking cognizance is not mere post office and the learned Magistrate is required to apply his judicial mind as to whether or not take cognizance of the offence.

7. The order dated 12th March 2021 records that a question of maintainability of the revision petition has arisen.

8. Section 397 of the Code of Criminal Procedure reads as under:

“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 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 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.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.”

9. The bar under sub-section 2 to Section 397 of the Code of Criminal Procedure provides that the power of revision shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. The object behind introduction of sub-section 2 to section 397 of the Code of Criminal Procedure was to curb delays in the criminal trials. The term interlocutory ord