Allahabad High Court
Vipin Kumar Agarwal vs State Of U.P. And Anr. on 11 December, 1997
Equivalent citations: 1998CRILJ2327
Author: P.K. Jain
Bench: P.K. Jain
ORDER P.K. Jain, J.
1. Heard Sri Vinod Kumar Sharma, learned counsel for the revisionist, Sri J. K. Khanna, learned counsel for opposite party No. 2 and the learned A.G.A. for the State.
2. This revision is directed against the order dated 21-3-96 passed by the then IInd Addl. Sessions Judge, Bareilly summoning the revisionist as an accused in exercise of powers under Section 193, Cr. PC. in S.T. No. 722 of 1994, under Sections 323/504/506/307/498-A/ 147/149 and 420 IPC, P.S. Prem Nagar, district Bareilly.
3. On the report of respondent No. 2 a case crime No. 420 of 1993 under the aforesaid sections as well as under Section 3/4 of the Dowry Prohibition Act was registered. The present revisionist was also nominated as an accused in the First Information Report. However, the police submitted chargesheet against four accused persons and no chargesheet was submitted against the present revisionist. After the case was committed to the Court of Sessions an application was moved before the learned Sessions Judge for summoning the present revisionist as one of the accused to be tried alongwith other accused persons. Learned Sessions Judge after hearing counsel for the parties, by the impugned order, allowed the prayer for summoning revisionist Vipin Kumar Agarwal as an accused.
3A. It is the order, which is being challenged in this revision mainly on the ground that powers of summoning can be invoked by the Court of Sessions under Section 319, Cr.P.C. after some material has appeared against the accused (revisionist) in the evidence adduced by the prosecution whereas in the instant case no evidence has yet been adduced, that at the time of the framing of the charge the learned Sessions Judge applied his mind to the facts of the case and after applying his mind to the facts of the case the learned Sessions Judge had not summoned the revisionist. It was only after 11 dates were fixed for prosecution, that an application was moved for summoning the revisionist also as an accused and that no chargesheet was submitted by the police after conclusion of investigation and no protest petition was filed by the complainant against the revisionist and lastly that the offences by the present revisionist were allegedly committed in America. Therefore, the Courts in India have no jurisdiction to summon the" accused. For opposite party No. 2, it is submitted that powers have been exercised by the Sessions Court under Section 193, Cr.P.C. to whom the case was committed by the Committing Magistrate and the Sessions Court has jurisdiction to summon any person as an accused against whom the material collected during investigation discloses commission of the offence and yet no chargesheet has been submitted by the police against him, that there are allegations that offences were also committed within India and in the local jurisdiction of the Court at Bareilly and that non-submission of the chargesheet by the police or non filing of the protest petition would not jeopardize the prosecution case.
4. Before dealing with the rival contentions it may be pointed out that by the Code of Criminal Procedure, 1973 the then existing provisions relating to taking of cognizance by the Court of Sessions were amended. Under the old Code Section 193, Cr. P.C. stood as follows :
Section 193-Cognizance of offence by Courts of Sessions- (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless, the accused has been committed to it by a Magistrate duly empowered in that behalf.
However, amended new Section 193, Cr. P.C. reads as follows :
193. Cognizance of offence by Courts of Session- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
5. It is pertinent to note that under the old Section 193, Cr.P.C. it was specifically stated that no Court shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it....
(Underlined by me) Under amended Section 193, Cr. P.C. the words 'accused' have been deleted and have been substituted by the words 'the case'. Section 209 sub-clause (a), Cr.P.C. also speaks of committal of the case to the Court of Sessions and not of the accused to the Court of Sessions. The procedure for committing a case triable by the Court of Sessions was contained in Section 207 in the Code of Criminal Procedure prior to 1973 amendment. Sub-sections 7, 10 and 11 are relevant in this regard which read as under :
(7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of the opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.
(8) to (9)....
(10) When the accused, on being required to give in a list under Sub-section (9), has declined to do so, or when he has given in such list, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session, as the case may be, and shall also record briefly the reasons of such commitment.
(11) When the accused has given in any list of witnesses under Sub-section (9) and has been committed for trial, the Magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed :
....
....
....
Under the amended Cr. P.C. the provisions of committal relating to a case to the Court of Sessions are contained in Section 209, Cr.P.C. Sub-section (a) of the said section reads as follows:
(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 (his Code relating to bail, remand the accused to custody until such commitment has been made;
Thus from a comparative study of the provisions as contained in Sections 193(1), Cr. P.C. (old) and 1993, Cr. P.C. (new) relating to taking of cognizance 'by the Court of Sessions and Sections 207-A, Cr. P.C. (old) and 209(a) Cr. P.C. (new) relating to commitment of a case to the Court of Sessions it would be clear that prior to the amendment the Court of Sessions could not have taken cognizance unless the accused has been committed to the Court of Sessions by the Magistrate duly empowered in that behalf whereas under the amended provisions it is not the accused but the case which is committed to the Court of Sessions and the Sessions Court take cognizance of the case and not of the accused. Similarly, under the old Code there was provision of committal of the accused to the Court of Sessions but under the amended Section 209, Cr. P.C. (new) the case is committed to the Court of Sessions. It has been held in a catena of judicial pronouncements in view of this change in law that once the case is committed to the Court of Sessions, the Sessions Judge trying the case has power to summon any accused against whom chargesheet has not been submitted and who has riot been committed to the Court of Sessions by the Committing Magistrate. In the case of Kishun Singh v. State of Bihar 1993 UP Cri R 137 : 1993 AIR SCW 771, the question before the Supreme Court was whether a Court of Session to which a case is committed for trial by a Magistrate can, without itself recording evidence, summon a person not named in the police report presented under Section 173, Cr.P.C. to stand trial along with those already named therein, in exercise of power conferred by Section 319, Cr.P.C. The Hon'ble Court after considering the provisions as contained in Sections 193, 228 and 319 Cr. P.C. as also a number of cases decided by the Supreme Court as well as other High Courts held that (Para 14 of AIR):
it is only when the Judge is of opinion that there is ground for presuming that the accused has committed an offence that he will proceed to frame a charge and record the plea of the accused (vide, Section 228). It becomes immediately clear that for the limited purpose of deciding whether or not to frame a charge against the accused, the Judge would be required to examine the record of the case and the documents submitted therewith, which would comprise the police report, the statements of witnesses recorded under Section 161 of the Code, the seizure-memoranda, etc. etc. If on application of mind for this limited purpose, the Judge finds that besides the accused arraigned before him the complicity or involvement of others in the commission of the crime prima facie surface from the material placed before him, what course of action should he adopt.
6. In Paragraph 16, the Hon'ble Supreme Court has observed as follows :
We have already indicated earlier from the ratio of this Court's decision in the cases of Raghubans Dubey and Hariram that once the Court takes cognizance of the offence (not the offender) it becomes the Court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the Court's duty to summon them to stand trial alongwith those already named, since summoning them would only be a part of the process of taking cognizance. We have also pointed out the difference in the language of Section 193 of the two Codes; under, the old Code the Court of Session was precluded from taking cognizance of any offence as a Court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words 'the case'. Thus, on a plain reading of Section 193 as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.
7. The Hon'ble Supreme Court has approved the view taken by the Patna High Court in a Full Bench decision in Sk. Lattur Rahman v. State of Bihar 1985 Cri LJ 1238. The decision in the case of Kishun Singh was followed by the Supreme Court in a recent decision in the case of Nisar v. State of U.P., 1995 UP Cri R 813 : 1995 AIR SCW 1493. It was also held in Nisar's case that the powers under Section 319(1) can be exercised only in those cases where involvement of persons other than those arraigned in the chargesheet conies to light in the course of evidence recorded during the enquiry or trial. In view of the above settled position of law, the contention of the learned counsel for the revisionist that powers of summoning can be invoked by the Court of Session only under Section 319, Cr. P.C. after some material has appeared against the revisionist in the evidence adduced by the prosecution cannot be accepted.
8. As regards second contention of the learned counsel for the revisionist that the learned Sessions Judge at the time of the framing of the charge against other accused persons has applied his mind to the facts of the case as well as has considered the material on record but did not think it necessary to summon the present revisionist, now after having given 11 dates for prosecution no material has come on record on the basis of which the revisionist could be summoned. The submission of the learned counsel for the revisionist, in substance, appears to be that the learned Sessions Judge could not review his earlier decision of not summoning the revisionist as an accused. It is true that while framing charge under Section 228, Cr.P.C. the learned Sessions Judge is supposed to have looked into the material on record and applied his mind to the facts of the case as well as considered the material collected during investigation yet, if at the stage, while framing charge against other accused persons the learned Sessions Judge inadvertently passed an order not summoning a person against whom there was prima facie material to hold that he has also committed an offence, that cannot be a ground, at a subsequent stage to restrain the Sessions Judge from exercising his powers under Section 193, Cr. P.C. to summon the accused at a later stage of the trial. Once it was brought to the notice of the learned Sessions Judge that there was sufficient material on record against the present revisionist also, the learned Sessions Judge applied his mind to the material on record once again and came to the conclusion that there was sufficient material to hold prima facie the involvement of the revisionist in commission of the crime. There is no submission on behalf of the revisionist that there is absolutely no material on record disclosing involvement of the revisionist in commission of the crime. On the other hand, as pointed out by the learned counsel for opposite party No. 2 that there are allegations of commission of offences by the revisionist also along with other accused persons. Therefore, the second submission of the learned counsel for the revisionist is devoid of merit.
9. In view of the decision of the Supreme Court cited above as also the legal position under the amended Code of Criminal Procedure failure of the complainant to file protest petition against non-submission of the chargesheet against the present revisionist would be inconsequential and cannot in any manner jeopardize the powers of the Court of Session to summon an accused after having taken cognizance of the case.
10. The last contention of the learned counsel for the revisionist is that the alleged offence has been committed in America and the Courts in India have no jurisdiction to summon and try him. There is no merit in the submission of the learned counsel for the revisionist. Offence under Section 498-A, IPC is an offence, which is a continuing offence by nature of allegations made by the first informant. Most of the Indian Women try to preserve the matrimonial relationship even at the cost of humiliation and ill-treatment meted out to them at the hands of their in-laws and when such ill-treatment becomes unbearable it is only at such stage that a complaint is made or an FIR is lodged. A perusal of the FIR would show that on 16/17th January, 1993 Vipin, the present revisionist returned to India along with his wife Smt. Vandana and on 25th March, 1993 she lived in Bareilly with Vipin Kumar, her mother-in-law, father-in-law and brother-in-law Vijay as also sister-in-law Anju. During this period Smt. Vandana was assaulted by the accused persons and several times burn injury was caused on her body. On 24th March, 1993 the present revisionist and other accused persons poured kerosene oil upon her and attempted to kill her by burning. She was forced to sign certain blank papers. Thus, this allegation clearly shows that that part of the offence was committed within the jurisdiction of the Courts at Bareilly and within India. Therefore, it cannot be successfully pleaded that so far as the present revisionist is concerned the offence was allegedly committed in America and the Courts at Bareilly have no jurisdiction.
11. Having carefully considered the arguments advanced on behalf of the revisionist as also by the learned counsel for the opposite parties and the material on record I do not find any merit in this revision. The revision is hereby dismissed. Stay order dated 16-10-96 shall stand vacated.
12. Let record of the trial Court be sent forthwith for expeditious disposal of the case by the trial Court.