KANDE VENKATESH GUPTA (ADVOCATE) 13 October 2010

taking conginzance of offence

Defacto complainant filed complaint with the police alleging dowry harassment and beating by the Accused No.1 to 7. The police, after conducting investigation, and after coming to conclusion that the Accused No.1., who was working as Head Master of the Government School, was not at the alleged scene of offence and at the relevant point of time he was attending the meeting of the Head Masters of the schoos conducted by the district collector, filed charge sheet against Accused No.2 to 7 only and not charge sheeted Accused No.1. However, the Magistrate, by a single line order, took cognizance of the offence against the Accused No.1. also along with the other accused. The Magistrate did not give any reasons for taking cognizance against Accused No.1. also. Whether the action of the Magistrate in taking cognizance of the offence Accused No.1., also is justified.

K.VENKATESH GUPTA
H.No: 1-1-16/1/2/A
JAWAHARNAGAR, RTC CROSS ROADS
HYDERABAD-500 020
PH.NO: 27650240/9885808021
venkateshgupta_kande@yahoo.co.in.

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8 Replies

Vijay Kumar (Advocate) 13 October 2010

Legally speaking, Yes.

Ravikant Soni (LAWYER IN JAIPUR) 14 October 2010

NO! but it depends upon the facts of the case. If evidence on the recored shows presence of the acc no. 1 at the place of occurrence then magistrate rightly took cognizance.

Suchitra. S (Advocate) 14 October 2010

Ravikanth ji and Vijay ji,

Please let me know whether a magistrate can take cognizance of persons not enlisted in the charge sheet ? If yes, pl let me know the provision which allows it.

Legal Fighter (Advocate) 14 October 2010

Magistrate can take congnizance but his order must be speaking order and the magistrate has to specify the reasons for taking congnizance against the accused who was not charge-sheeted.

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(Guest)

Yes,Prabhakar right.

319. Power to proceed against other persons appearing to be guilty of offence. –

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which Such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court he may be arrested or Summoned, as the circumstances of' the case may require, for the purpose aforesaid.

(3) Any person attending the court although not trader arrest or upon a summon, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under subsection (1) then-

(a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard.

(b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.

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Vijay Kumar (Advocate) 15 October 2010

Suchitra

Prabhakar and Kushan Vyas have replied to your question very nicely.

Regards

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DEEPAK ASSOCIATES (08010117611) 16 October 2010

no doubt magistrate has power to summon the person but at the same time the magistrate cannot ignore the summery of investigation officer who clear the fact that the accuse no 1 was not present. Thereby u/s 319 would attract when the evidence produced in the case till then the accused no 1 should not be summoned.

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