2 in Balveer Singh v. State of Rajasthan [Criminal Appeal No. 253 of 2016] have carved an exception to what 5 held in Dharam Pal v. State of Haryana, (2014) 3 SCC 306. Dharam Pal was authored by Altamas Kabir, CJI.
My Lord, Can a Sessions Court take cognizance of the offence, under Sections 304-B and 498-A of IPC, when similar application to that effect has been rejected by the JMFC, while committing the case to Sessions Court, taking cognizance of the offence only under Section 306 IPC and specifically refusing to take cognizance of the offence under Sections 304-B and 498-A of IPC?
“Normally, such a course of action would not be permissible. Magistrate had taken the cognizance of the offence. Notwithstanding the same, the Sessions Court on the similar application made by the complainant before it, took cognizance thereupon. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Sessions Court, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law.”
“The Court of Sessions was not powerless to pass an order in its revisionary jurisdiction. We find that the order of the Magistrate refusing to take cognizance is revisable. This power of revision can be exercised by the Superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the Revisional Court itself.”
“We are not inclined to interfere.”