Jammu & Kashmir High Court
Amar Nath vs State And Ors. on 21 April, 2007
Equivalent citations: 2008CRILJ86, 2007(2)JKJ317
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. This Criminal Revision is directed against the order dated 6th of March 2007, passed by learned 1st Additional Sessions Judge, Jammu, in a case titled State v. Harmeet Singh, for the offences punishable under Section 302 of Ranbir Penal Code, hereinafter for short as RPC, read with Section 4/27 Arms Act, FIR No. 31/2001 P/s Meeran Sahib, whereby and whereunder, application of State/prosecution for arraying Amarnath as accused, came to be allowed.
2. The question involved in this petition is whether trial court- 1st Additional Sessions Judge Jammu was having powers, competence and jurisdiction to array the person as an accused against whom the chargesheet has not been submitted by the prosecution?
3. In order to reply this question, it is necessary to notice some relevant provisions of Criminal Procedure Code, hereinafter for short Code. Section 193 of the Code provides when court of Sessions can take cognizance.
Section 205D of the Code reads as under:
Commitment of case to Court of Sessions - 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 Sessions, he shall-
(a) commit the case to the Court of Session;
(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.
4. Section 351 of the Code mandates how a person against whom chargesheet has not been presented can be arrayed as an accused. The said Section reads, thus:
Definition of offenders attending Court. - (1) Any person attending a criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance, and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.
(2) When the detention takes place after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard.
5. Before proceeding ahead, I deem it proper to reproduce the corresponding provisions of Central Code of Criminal Procedure, hereinafter for short as Central Code Section 319 of the Central Code reads thus:
Section 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 afresh, and the witnesses reheard;
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.
6. Section 193 of the Central Code reads as under:
Section 193:
Cognizance of offences 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
7. Amendment came to be introduced in Central Code after courts made observations but Section 351 of the Code supra is yet to be amended. However, amendment was introduced and word accused used in Section 205-D of the Code came to be substituted by word "case". Again, no amendment has been introduced in Section 193 of the Code.
8. However, be it as it is Sections 351,205D and 193 of the Code are to be read together. In terms of Section 205-D of the Code, the committal court has to commit the case, so I am of the considered view that trial court-Sessions Court can array a person as an accused.
9. Section 193 read with Section 351 of the Code was subject matter of discussion in a case titled as State v. Mohammad Zaman and Ors. reported in KLJ 1981, P. 221 and their Lordships have held that trial court-Sessions Court has powers to array any person as an accused, if during trial evidence recorded indicate prima facie involvement of that person. It is profitable to reproduce Para 5 of that judgement herein:
5. On its plain language, three conditions must he satisfied before Section 351 may he applied to a case. These are: 9 (i) the person sought to be proceeded against, must he attending the court (ii) the Court must be competent to take cognizance of the offence for which he is to he tried: and (iii) there must he evidence before the Court that the person is prima facie guilty of the said offence. Prior to its amendment vide Act No: 2 of 1974, the provisions of Section 351 of the Central Code (now Section 319 were identical to those of Section 351 of the State Code. There was conflict in judicial opinion as to whether a Sessions judge was competent to try an accused in the absence of a formal committal order by a magistrate by invoking the provisions of Section 351. The matter was considered by the law Commission in its entire gamut, and necessary amendments were suggested to be in Sessions 193.207-A and 351 of the Central Code. Besides doing away with the condition of his presence before the court, Sub-section (4) was added to the newly enacted Section 319, under which such a person would he deemed to he an accused before the Court even at the time it look cognizance of the offence: no matter whether he was actually present before it then. A corresponding amendment was also made in Section 193 and the expression 'unless the accused has been committed to it by a magistrate' was substituted by the expression 'unless the case has been committed to it by a magistrate'. Drastic changes were also made in the procedure relating to cases exclusively triable by a Court of Session and High Court, and provision made in Section 209 for committal of the, "case " instead of "accused" as ordained by Section 207A, which was repealed. Keeping these amendments in view, their Lordships in AIR 1979 SC 339 (supra) held that Section 193 was no bar against the trial of a person Under Section 319, and for two reasons: one that the word "case" was substituted for the word "accused" in Sections 193 and 209 and two that Sub-section (4) of Section 319 created a legal fiction under which such a person would he deemed to be an accused before the Court, even at the time the Sessions Judge took cognizance of the offence, whether or not he was then actually arraigned before him. It was to convey this opinion that their Lordships made the following observations:
It will be noticed that both under Section 198 and Section 209 the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provisions of the old Code viz Section 193(1) and Section 207A it was 'the accused' who was committed and not 'the case'. It is true that there cannot be a committal of the case without there being an accused person before the Court but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once the case in respect of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the away and summoning of additional persons who appeared to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of normal process that follows it: otherwise the conferral of the power under Section 319(1) upon the Sessions Court would be rendered nugatory. Further, Section 319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added accused. Under that provision it is provided that where the Court proceeds against any person under Sub-section (l) then the case may proceed as such person had been an accused person when the Court took cognizance of the offence upon which inquiry or trial was commenced; in other words, such person must be deemed to be an accused at the time of commitment because it is at that point of time the Sessions Court in law takes cognizance of the offence.
10. Apex Court in case titled Joginder Singh and Anr. v. State of Punjab reported in SCC 1979 Vol.1 p.345 held that Section 193 of the Code shall not be a bar for arraying the accused if evidence recorded discloses the involvement of such person. It is profitable to reproduce Para 6 of the said judgment herein:
A plain reading of Section 319(1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused; but the question is whether it has power to do so without there being a committal order against such person? In this context the provisions of Sections 193 and 209 of the present Code vis-a-vis the equivalent provisions under the old Code will have to be considered.
11. This Court in cases reported in 1998 KLJ Feb. Part P. 78,1997 KLJ P. 94 and 1987 KLJ P. 75 held that Sessions Court is having the powers to array a person as an accused.
12. In the given circumstances, I hereby held that trial court-Sessions Court has the powers.
13. Now the question is at what stage? The word used in Section 351 of the Code mandate that if during-trial evidence indicates the involvement of person(s) though not accused could be arrayed as such.
14. Now it is necessary to notice the facts of the case in order to hold that whether the trial court-Sessions Court has rightly arrayed Amarnath as an accused.
15. It appears that Amarnath figured in FIR but chargesheet was not submitted against him for the reasons spelled out by the Investigating Officer.
16. Accused came to be chargesheeted vide order dated 4th of July 2002. Prosecution failed to examine any witness till 15th of April 2004 and on 15th of April 2004 Suresh Kumar was examined. P. W. No. 1. Surjeet Singh. P. W. No. 9 Amarjeet Singh and PW No. 11 Dr. Yang Chin came to be examined on 28th of May 2004. And immediately after examining Surjeet Singh-complainant, the application came to be filed and impugned order came to be passed on 6th of March 2007. The other witnesses are yet to be examined.
17. I am of the considered view that the trial Court could have deferred consideration of the application till examination of Investigating Officer for the reasons that Investigating Officer has spelled out reasons and details for not submitting the chargesheet against Amar Nath. Further he has also come to the conclusion that there was no evidence against Amar Nath. However, he it as it is, Investigating Officer is yet to be examined and I deem it proper not to offer anymore comments at this stage now.
18. The fact of the matter is that PW. No. 1 Surjeet Singh has stated that deceased informed him that Amar Nath caught hold the victim and Harmeet Singh stabbed him. PW. Amarjeet Singh stated that Amar Nath also came on spot and caught hold the victim while-as the accused stabbed him.
19. What is the offence prima-facie committed by Amar Nath? The opinion and finding is yet to he recorded by the trial court. So I deem it proper to refrain from commenting. But the fact of the matter is that his name was figuring in the FIR and some evidence has come prima-facie against him. But for what offence he is to be charge sheeted is for the trial court to decide.
20. The argument of learned Counsel for petitioner that no challan was presented against him so he could not be arrayed as a accused is devoid of force. Apex Court in a case titled Joginder Singh v. State of Punjab reported in 1979 SCC Vol 1 P. 345 held that even though no chargesheet is presented against the accused, he could be arrayed as an accused.
21. It is also useful to reproduce Para 5,6 and 7 of the judgment delivered in case Smt. Rukhsana Khatoon v. Sakhawat Hussain and Ors. reported as :
5. In our view, the impugned order is, on the face of it, illegal and erroneous. It is against the provisions of Section 319 Cr.P.C. and the decisions rendered by this Court interpreting the same. In Kishun Singh and Ors. v. State of Bihar , 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, police submitted its report under Section 173 Cr.P.C. 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 Cr. P. C. to stand trial. Before Sessions Court, an application under Section 319 of the Code was filed praying that 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 invoked both by the court having original jurisdiction as well as the court to which the case has been committed or transferred for trial. Similar is the view taken in Girish Yadav and Ors. v. State of M.P. .
6. The learned Counsel for the respondents contended that the High Court was justified in passing the impugned order and in support of his contention, he was relied upon the decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. . In our view, there is no substance in his contention. In that case also, after considering Section 319 Cr.P.C, this Court held that the said provision gives ample power to any court to take cognizance and add any person not being an accused before it and try him along with other accused, if there appears during the trial sufficient evidence indicating his involvement in the offence. The court also observed that this power is really an extra ordinary power and should be used very sparingly.
7. Considering the facts as stated above, in our view, it cannot be said that the sessions court committed any illegality or irregularity in summoning the respondents as accused. Hence, this appeal is allowed and the impugned order passed by the High Court is set aside. The trial court to proceed with the matter in accordance with law.
22. I am conscious that exercise of this discretion is to be done very rarely but when evidence recorded during trial prima-facie discloses involvement, the court has powers to invoke the jurisdiction.
23. Thus in the given circumstances, I am of the view that impugned order needs no interference. But question is whether petitioner is entitled to bail. Allegedly the occurrence has taken place on 31st of March 2001 and deceased has succumbed to the injuries in the intervening night of 1st and 2nd of April 2001. The accused Amar Nath was not arrested and there is no allegation that he has tried to abscond or tampered with the evidence or witnesses in any way and after a lapse of six years he came to be arrayed as an accused. But what is the offence for which he is to be chargesheeted is yet to be examined by the trial court, what is the value of reasons spelled out by the Investigating Officer in chargesheet is yet to be determined and thrashed out by the trial court.
24. In the given circumstances it will be travesty of justice to keep the accused in custody.
25. Mr. Salathia, while addressing arguments frankly conceded that accused be admitted to bail.
26. In the given circumstances of the case, I deem it proper to dismiss the revision petition but admit the accused on bail. Bail bond to the tune of Rs. 50,000/- with one surety to the satisfaction of the learned Registrar Judicial.
Registry is directed to send copies of the order to trial court for information.
Revision petition is accordingly disposed of.