Rajasthan High Court - Jaipur
Mohd Ismail Khan vs State Of Raj Asthan Through Pp on 5 April, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL REVISION PETITION NO.382/2011 Mohd. Ismail Khan vs. State of Rajasthan Date of Order: 05/04/2013 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. N.S. Chauhan, for the appellant. Mr. Amit Punia, Public Prosecutor.
REPORTABLE Heard learned counsel for the parties.
2. The injured petitioner has filed this revision petition challenging the order dated 28.03.2011 passed by the Additional District and Sessions Judge, Sambhar Lake, District Jaipur in Sessions Case No.03/2009 whereby his application under Section 319 Cr.P.C. has been dismissed.
3. The instant case was initiated on a first information report (280/2008) filed by one Munirdin Deen Maniyar Deen on 09.12.2008 at Police Station Rainwal, District Jaipur. In the said report, it was stated that five persons, namely Mohd. Ayyub Khan, Mohd. Islamudin, Mohd. Iqbal, Mohd. Nasiruddin and Shri Nizamuddin, had come on three motorcycles and assaulted the informant. The informant had sustained grievous injuries and after initially medical aid at Hospital in Rainwal, he was referred to the SMS Hospital, Jaipur. The said report was registered for the offence under Section 143, 341 and 323 IPC.
After the investigation which commenced on the said report, the police filed a charge sheet against three persons, namely Mohd. Ayyub, Mohd. Islamuddin and Mohd. Nasiruddin for the offence under Section 341, 323, 325, 308 IPC. The police had not filed charge sheet against Mohd. Iqbal and Nizamudin. The three accused persons were arrested during the course of investigation. The evidence which was collected during the course of investigation by way of statement under Section 161 Cr.P.C. revealed that the remaining persons such as, Mohd. Iqbal and Nizamudin had also assaulted the informant Munirdin Deen Maniyar.
4. On filing of the charge sheet, the learned Magistrate took cognizance for the offence under Section 341, 323, 325 and 308 IPC against the aforesaid three persons. On committal of the case, the learned Court of Sessions framed charges and proceeded with the trial. The prosecution had produced their witnesses during the course of trial and from the statement of Smt. Fatima (PW-4), Shri Munir Khan (PW-6) and Mohd. Ismail Khan (PW-7) recorded by the trial court, it is revealed that the accused Iqbal and Nizamuddin were present at the time of incident and also participated in it. Thereafter, the petitioner moved an application under Section 319 Cr.P.C. for taking cognizance against Iqbal, Maqbul and Nizamudin. As the learned trial court, by his order dated 28.03.2011 dismissed the said application, the petitioner has come before this Court with the prayer that the impugned order be set aside.
5. On perusal of the impugned order, it is revealed that the learned trial court has rejected the application under Section 319 Cr.P.C. filed by the petitioner on the ground that soon after filing of challan, no application so as to establish the objection in this regard was raised by the injured that offence has been committed by other persons also. Further, it is observed by the learned trial court that though the injured person has, in his statement, stated about the involvement of other persons but there is no corroborative evidence to that effect. The investigation officer has also not been cross-examined on the point as to on what ground prima facie case was not found against the remaining persons. The investigation officer has stated that after investigation, he found the commission of offences to be established against three persons. Similarly, he has considered another aspect while dismissing the application that in the first information report, presence of other persons have been mentioned but the said report has not been lodged by an eye-witness, etc.
6. The learned counsel for the petitioner has assailed the impugned order on various grounds and had submitted that the same is grossly illegal and contrary to the settled principle of law relating to provisions under Section 319 Cr.P.C., its scope, the evidence which is to be looked into at that stage and the time when such like applications can be filed before the Court, etc.
7. Learned Public Prosecutor has tried to support the impugned order passed by the learned trial court but in respect of observation made by the learned trial court that application under Section 319 Cr.P.C. should have been filed immediately after filing of challan, he was unable to support the same in any manner and on the basis of any case law.
8. Before proceeding further, it would be in the fitness of the things to refer the provisions of Section 209 and 319 Cr.P.C. which relates to power of committal of the learned Magistrate as well as addition of other person as an accused by the trial court. The said provisions are as under:-
209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
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 under arrest or upon a summons, 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 sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the 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.
9. After taking into consideration the facts and circumstances of the case as unfolded from the material on record, the relevant provisions and the principle of law, which has been enunciated by the Hon'ble Supreme Court, time and again, this Court is of the view that this petition has merit and the impugned order dated 28.03.2011 deserves to be quashed and set aside. The observation made by the learned trial court while considering an application under Section 319 Cr.P.C., to the effect that application should have been filed soon after the submission of the charge-sheet so as to register the objection immediately after investigation that there are other persons also who have committed the crime, is alien to the relevant provisions and principle of law as laid down by the Hon'ble Supreme Court.
10. The Hon'ble Supreme Court as well as our High Court has on different occasions, considered the provisions of Section 319 Cr.P.C., and has laid down principles of law in respect of its scope and applicability. As the instant case relates to sessions trial, it would be appropriate to consider the principle of law laid down in respect of power of the Court of Sessions to array a new person or persons as accused under Section 319 Cr.P.C.
11. This High Court had as back as in the year 1987, in the case of Gajju Vs. State of Raj., 1988 RCC 287 held that a person under Section 319 can be proceeded as an accused only after statement of some witnesses are recorded. The said judgment was passed on the basis of principle of law laid down by a Division Bench of the High Court in the case of Shyodan Singh & ors. Vs. State of Raj., DB Cr. Misc. Application No. 41/1981 wherein it was held that the police statement recorded under Section 161 Cr.P.C., cannot be treated as evidence for the purpose of Section 319 Cr.P.C.
12. In the case of Ranjit Singh Vs. State of Punjab, (1998) 7 SCC 149, a larger Bench of the Hon'ble Supreme Court was considering the issue as to whether the Sessions Court can add a new person in the array of accused, in a case pending before it, at a stage prior to recording of any evidence. In para 20 of the said judgment, it was laid down by the Apex Court as follows:
Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.
13. In the case of Girish Yadav & ors. Vs. State of Madhya Pradesh, 1996 Cr.L.J. 2159 a contention was raised on behalf of defence that once the police had not submitted charge-sheet against the accused persons then the Court ought not to have roped them in. The said contention was rejected in Para 15 and it was observed that:
... ... There is enough power with the Court in a proper case to exercise its jurisdiction under Section 319, Cr.P.C. In the present case as we have seen earlier, the High Court had remanded the matter for reconsideration in the light of the evidence that may be recorded by the Court and that is how after recording the evidence of eye-witnesses process was re-issued against these appellants. As the evidence recorded by the Court shows that there was enough involvement of these accused in the commission of the offence and, therefore, they stood on the same pedestal as accused 1 to 4 they could not be said to have been wrongly proceeded against as accused under Section 319, Cr.P.C.
Similar is the position in the case of Rukhsana Khatoon (Smt) Vs. Sakhawat Hussain & Ors., (2002) 10 SCC 661. In said case, the High Court had set aside the order of learned Sessions Judge and held that Section 319 cannot be invoked by the Court and a person named as an accused in the FIR is not charge-sheeted, the Hon'ble Supreme Court held in Para 5 that:
In our view, the impugned order is, on the face of it, illegal and erroneous. It is against the provisions of Section 319 CrPC and the decisions rendered by this Court interpreting the same. In Kishun Singh Vs. State of Bihar, (1993) 2 SCC 16 this Court considered a case where an FIR was lodged naming 20 persons including the two appellants as assailants of the deceased who died in the occurrence. After investigation, the police submitted its report under Section 173 CrPC showing 18 persons other than the two appellants as offenders. The Magistrate committed those 18 persons named in the report to the Court of Session under Section 209 CrPC to stand trial. Before the Sessions Court, an application under Section 319 of the Code was filed prayng that the remaining two accused be summoned and arraigned as accused. The Sessions Court impleaded them as co-accused. That order was finally challenged before this Court and the Court dismissed the appeal by holding that Section 319 can be invokved both by the court having original jurisdiction as well as the court to which the case has been committed or transferred for trial.
In the case of Kishori Singh & ors. Vs. State of Bihar & Anr., (2004) 13 SCC 11, the three accused persons were named as accused in the First Information Report, who had not been charge-sheeted by the police, in an offence triable by the Court of Sessions, the Magistrate by an order dated 10.6.97 came to the conclusion that there appears sufficient ground to proceed against the accused persons and as such cognizance be taken under Section 302/34 etc. The learned Sessions Judge in a revision petition filed by the newly added accused came to the conclusion that the order of Magistrate is without jurisdiction and allowed the same. The learned High Court interfered with the order of Sessions Judge and thus the matter was taken up to the Apex Court. The Hon'ble Apex Court in Para 9 of the said judgment, held as under:
After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10.6.1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 CrPC.
14. In the case of Sri Mahant Amar Nath Vs. State of Haryana & Anr., AIR 1983 SC 288, it was sought to be urged that the details given by the prosecution witness during the trial had not figured in his statement under Section 161 and therefore, the Sessions Judge ought not to have given the impugned directions. The Hon'ble Supreme Court while rejecting the said contention had held that such aspect falls within the domain of appreciation of evidence to be done finally at the end of trial before pronouncing upon theguilt or otherwise of the concerning accused. It cannot be disputed that there was sufficient material before the learned Sessions Court warranting the impugned directions.
15. Another issue in relation to the provisions of Section 319 Cr.P.C., had come up for consideration before the Hon'ble Supreme Court in the case of Raj Kishore Prasad Vs. State of Bihar & ors., (1996) 4 SCC 495 as to whether the Magistrate undertaking commitment under Section 209 Cr.P.C., in a case triable by a Court of Session, associate another person as an accused in exercise of powers under Section 319 of the Code of Criminal Procedure or under any other provision. In the said case, when challan was filed before the Chief Judicial Magistrate, the informant made an application requesting the Magistrate to exercise his powers to summon the appellant so as to send him to stand trial alongside the accused sent up by the police, before the Court of Sessions. The Chief Judicial Magistrate dismissed the application of the informant which led to filing of a revision petition before the Court of Sessions. The learned Sessions Court allowed the revision petition and desired the Chief Judicial Magistrate for issuance of warrant of arrest of the appellant to face trial. When the appellant moved to the High Court under Section 482 Cr.P.C. praying for quashing of the order of Court of Sessions, the same was also dismissed by the High Court. It was contended on behalf of the appellant that at the stage set for employing Section 209 Cr.P.C., the Chief Judicial Magistrate has no power under Section 319 of the Code or otherwise to add an accused in addition to the one facing committal. After tracing the history in respect of inclusion of provisions under Section 209 and 309 Cr.P.C., as well as the object and reasons and 41st Report of the Law Commission, the Hon'ble Supreme Court in Para 16 laid down as follows:
Thus we come to hold that the power under Section 209. Cr.P.C. to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an 'inquiry' and material before him not being 'evidence'. When such power was not so vested, his refusal to exercise it cannot be corrected by a, court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, summon the accused to stand trial. Along with the accused. meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319 Cr.P.C. has not arrived. The Order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319 Cr.P.C. when handling a matter under Section 209 Cr.P.C., the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its powers under Section 319 Cr.P.C. on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguards envisaged under sub-section (4) of Section 319, Such course is all the more necessary in the instant case when expressions on merit have extensively been made in the orders of the magistrate, the Court of Session and that of the High Court Any other course would cause serious prejudice to the appellant. We order accordingly.
16. Reverting back to the instant case, it would be seen that the learned Additional Sessions Judge had passed the impugned order rejecting the application under Section 319 Cr.P.C after recording of the statements of injured person, for the reason that the complainant or the injured had not filed any application soon after filing of challan before the Magistrate concerned so as to record his objection in respect of persons who have been left out from being made as an accused and they may also be made to face trial along with other against whom charge-sheet has been filed. Further, he has observed that the Investigation Officer had said that the prosecution case was found only against three persons and he was not examined in this respect during the course of trial. He has also taken into consideration the statements of injured under Section 161 Cr.P.C., that the concerned persons were not named therein. Such persons have been named in the court statement but no corroborative evidence to it is on record. The learned court below had in respect of accused Maqbul declined to include him as an accused on the ground that he has not been named in the First Information Report but in respect of Iqbal and Nizamudin who had been named in the First Information Report, they were also declined to be included as accused on the ground that the First Information Report was not lodged by the eye-witness.
17. After having considered the relevant provisions of law and the principle laid down in respect of it by the Hon'ble Supreme Court, as referred to above, this Court is of the considered opinion that none of the reasons given by the learned court below for rejecting the application under Section 319 Cr.P.C., are sustainable. It is settled proposition of law since long that at the time of exercise of powers under Section 209 Cr.P.C., the Magistrate concerned cannot include any other person as an accused purported to exercise powers under Section 319 or under any other provisions. Furthermore, the exercise of powers under Section 319 Cr.P.C., for having a new person added can only be made on the basis of evidence recorded by the trial court. In the case of Raj Kishore Prasad (supra), the Hon'ble Supreme Court has in detail considered the aspect of the matter and categorically held that a Magistrate has nojurisdiction to include any person as an accused when a case is triable by Magistrate. Therefore, there was no occasion for the informant to have moved an application for including other persons as accused, before the Magistrate concerned soon after filing of challan. Such an application, if filed would not have been entertained for the simple reason that the Magistrate has no jurisdiction to pass any order in a case of present nature which is admittedly triable by the Court of Sessions. So far as consideration of statements of informant under Section 161 as well as court statements, it would suffice to say that as laid down by the Hon'ble Supreme Court in the case of Sri Mahant Amar Nath (supra) that such aspect of the matter clearly falls within the domain of appreciation of evidence to be done finally at the end of trial.
18. Another reasoning given by the learned court blow that Maqbul could not be added as an accused because he has not been named in the FIR which by itself goes contrary to the reasoning given by the court below when it had considered the question of including Iqbal and Nizamuddin as accused who are admittedly named in the First Information Report. These two persons were not included as accused on a reasoning which was inconsistent to the one given for Maqbool that the FIR had not been filed by an eye- witness. On reading of the impugned order as a whole, it is revealed that the application filed by the informant under Section 319 Cr.P.C., had not only been rejected in an illegal manner but the learned court below appears to be ignorant of the basic principle of law in respect of it. The substance of the impugned order is that the application under Section 319 Cr.P.C. should have been filed long ago, that is to say soon after filing of challan or an application raising objection before the Magistrate concerned in a case triable by the Court of Sessions. There is no provision in law under which the informant could have filed an application before the Magistrate for including other persons as accused and, if at all, the same had been filed, any order passed on it would have been wholly illegal and without jurisdiction.
19. To sum up, on consideration of the relevant provision and the principles of law laid down by the Hon'ble Supreme Court, the following broad principles emerge:-
(i) That an application under Section 319 Cr.P.C., can be entertained only after recording of some evidence during the course of trial;
(ii) That in a case triable by Court of Sessions, the Magistrate concerned has no jurisdiction to entertain any application filed on behalf of the complainant so as to include any person as an accused soon, after filing of challan or at the time of committal of the case. It is only the Court of Sessions who is to consider such application after recording of statements of some of the prosecution witnesses during the course of trial;
(iii) That on an application under Section 319 Cr.P.C., the learned trial Court, if there is evidence on record adduced at the time of trial, can include any person as an accused even if no challan has been filed against him;
(iv) That the learned trial Court can accept an application under Section 319 Cr.P.C., on the basis of evidence of some parties recorded during trial, include other persons as accused even if they are not named in the First Information Report or that there name do not figure in the statement of prosecution witnesses recorded during the course of investigation under Section 161 Cr.P.C.
20. Consequently, this revision petition is allowed. The impugned order dated 28.3.2011 passed by learned Additional Sessions Judge, Sambhar Lake Distt. Jaipur is quashed and set aside. The application filed by the injured on 28.3.2011 under Section 319 Cr.P.C., is allowed. The learned trial Court is directed to proceed with the trial against the newly added accused, in accordance with law.
Before parting with this order, it is to be noted that in a case triable by court of Sessions, the minimum expectation from the Presiding Officer, who are Senior Judicial Officers, is that they would consider and apply the provisions of law in an appropriate manner, particularly when the question is basic and fundamental. In the instant case, which is triable by the Court of Sessions, the learned Presiding officer had passed the order in a casual manner and appeared to be determined to decline the prayer made in the application filed under Section 319 Cr.P.C. He has gone to the extent of giving reasons contrary to the principles laid down by the Hon'ble Supreme Court that an application should have been filed before the Magistrate concerned soon after filing of challan. When challan in the instant case was filed for the offence inter alia under Seciton 308 IPC and the case being a one triable by the Court of Sessions, then the learned District & Sessions Judge ought not to have rejected the application on the ground that the informant had not filed any application raising objections before the Magistrate concerned for including other persons as accused. This certainly reflects about the knowledge of law possessed by the Presiding Officer and poor quality of judgment/order being passed by him. Therefore, it is deemed appropriate that a note in this regard be entered in his service record and a copy of this order be also sent to the Hon'ble Inspecting Judge as well as the learned District Judge concerned forthwith.
(RAGHUVENDRA S. RATHORE) gandhi/-
All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed.
BM GANDHI PA