Patna High Court
Latfur Rahman And Ors. vs State on 17 May, 1985
Equivalent citations: 1985(33)BLJR353
Author: Nagendra Pradesh Singh
Bench: Nagendra Pradesh Singh
JUDGMENT S.S. Sandhawalia, C.J.
1. Whether the Court of Session, without itself recording evidence, can summon a person to stand trial as an accused (alongwith others committed to it by a Magistrate) on the basis of documents in the final report of the Investigating Officer under Section 173 of the Code of Criminal Procedure, 1973 independently of the provisions of Section 319 of the said Code Whether the substitution of Section 319 of the new Code in place of Section m of the old Code has wrought any radical change in the law on- the point aforesaid ? This is the significant twin question necessitating this reference to the Full Court. s
2. As is apparent, the issue aforesaid is pristinely legal and the facts would consequently pale into relative insignificance. Therefore, a skeletal background thereof would amply suffice. Regretfully it must be noticed that the occurrence giving rise to the issues took place more than 11 years ago in the night of the 7th of February, 1974. On the following morning at about 1 a.m. a first information report under Section 395 of the Indian Penal Code was recorded, m which the three petitioners along with Jabbar Khan and S. K. Samad were specifically named. However, the police after investigation submitted a charge-sheet under Section 395 on the 16th of December 197S only against Jabbar Khan, showing Sk. Samad, accused, as an absconder. On the basis of the aforesaid charge-sheet, the Chief Judicial Magistrate Katihar, took cognizance of the offence under Section 39 5 I PC and transferred the case to the Court of the Judicial Magistrate, 1st class, Katihar for commitment. The latter, thereafter, committed the same to the Court of Session under the provisions of Section 209, Criminal Procedure Code 1973 (hereinafter to be referred to as the 'Code'). However, before the commencement of the trial itself, the Additional Public Prosecutor filed an application before the learned Sessions Judge Katihar, praying therein to also summon the three petitioners as additional accused persons on the basis of the first information report and the specific statements of eye witnesses under Section 161, which named the three petitioners equally for the crime. This application was purportedly labelled under Section 319 of the Code The learned Session Judge, Shri Padma Narayan Singh by the impugned order dated 24th of May, 1979, allowed the prayer. He expressly took notice of the fact that all the three petitioners had been specifically named in the first information report and further Zamiruddin , petitioner, had been so named by four other eye witnesses in their statements under Section 161 whilst Latfur Rahman and Belal petitioners had been similarly named by six eye witnesses? He therefore held that there was absolutely no reason for not submitting The charge-sheet against the three petitioners by the police. Observing that he cognizance has been-taken of the entire case and not merely of the offender only and relying on the forth right observation in Joginder Singh and Anr. v. State of Punjab and Anr. . , he issued warrants against the three petitioners.
3. Aggrieved by the order aforesaid, the present petition has been presented which was admitted to a hearing and later referred to a Division Bench by a learned single Judge on the 21st of October, 1982 Before the Division Bench primary reliance on behalf of the petitioners was placed on Satyanarayan Yadav v. The State of Bihar 1977 B.B.C.J. 442. but noticing a conflict of the same with a Division Bench decision of the Punjab and Haryana High Court in Lal Chand and Anr. v. State of Haryana 1983 Cr. L.J. 1394. and equally the significance of. the issue involved, the matter has been referred for an authoritative decision of the Full Bench
4. At the very outset, it may be noticed that the matter has been debated before us on the anvil whether the petitioners could be summoned to stand the trial alongwith other co-accused independently of Section 319 of of the Code or whether the said Section is the sole repository of such a power. The adjudication, therefore, must be limited to these parameters.
5. Now, the basic stand of the opposite party State is that Section 319 of the Code is not the only fountain head of the power of a Court to summon an accused person to stand his trial where an offence is clearly disclosed against him. It is the case that such a power is both explicit and implicit in Sections 227 and 228 of the Code pertaining to the power of the Court of Session to discharge an accused or frame a charge against him. It is the case of opposite party State that Section 319 provides for an altogether different situation where obviously the trial has already begun and proceeded further or an inquiry has similarly commenced, and the issue of summoning an accused person arises in the course thereof. Section 319 has no relevance to the stage where, as yet, the trial has not begun, which is taken care of by the other provisions of the Code. Therefore, to label Section 319 as the sole repository of the power of summoning an accused person to stand his trial according to the State, is a misnomer. As already noticed, since basic reliance is on Sections 227 and 228, it is apt to quote these provisions at the very outset. However, as the argument turns considerably on the analogy of these provisions with Sections 239 and 240 of the Code, pertaining to a similar, if not identical, power of discharge or the framing of a charge against an accused person in the trial of a warrant case by a Magistrate, it becomes necessary to juxtapose the corresponding provisions against each other:
227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused, and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. (1) If, after such consideration and hearing as aforesaid the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant case instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused, (2) Where the Judge frames any charge under Clause (b) of Sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether the pleads guilty of the offence charged or claims to be tried.
239. If, upon considering the police report and the documents sent with it under Section 173.and making such examination, if any, of the accused, as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reason for so doing.
240. (I) If, upon such consideration, examination, if any. and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence or claims to be tried.
The closest similarity, if not the virtual identity, of the aforesaid Sections is so obvious that it calls for no further comment or elaboration. However, this would need pointed reference somewhat later with regard to the applicability of precedent under Section 239 and 240 of the Code equally to the situation envisaged by Sections 227 and 228 thereof.
5. Now leaving Section 319 of the Code altogether aside, it was common ground before us that there is no other specific provision empowering the Magistrate in a warrant case or a Court of Session to summon a person, who has not been specifically sent up as an accused by the investigating agency, for standing his trial before him on the basis of documents and materials in the report under Section 173 of the Code. The firm stand of the opposite party State is that such a power flows from the factum of Court taking cognizance of the offence and trying the said case for bringing the offender for the said offence to book. Whatever doubts in this context may earlier have been raised, these now stand resolved way back by their Lordships in Raghubans Dubey v. State of Bihar A.I.R. 1967 S.C. 1107. which arose from the judgment of this Court in Raghubans Dubey v. The State of Bihar . Therein a first information report had been lodged against as many as 15 persons including petitioner Raghubans Dubey. On investigation, the police submitted final form under Section 173 in which Raghubans Dubey was not sem up by the police for trial whilst the remaining accused were. The Sub-divisional Magistsate took cognizance against the fourteen accused persons and expressly discharged Raghubans Dubey and thereafter transferred the case to a Magistrate for commitment In the course of the trial the transferee Magistrate noticed that Raghubans Dubey had been named in the first information report and was also named by 5 more witnesses in their statements under Section 161. He, therefore, summoned Raghubans Dubey as an accused to stand his trial along with others. This was challenged on behalf of the petitioner Raghubans Dubey. But the Division Bench of this Court in A.I.R. 1964 Patna 487, upholding the action of the Magistrate in summoning the additional accused person rejected the revision petition, upholding the High Court's view in an even stronger and more categoric terms, Sikri, J., speaking for the Bench, observed:
In our opinion once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders ; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.
From the above, it inflexibly follows that once a Court of competent jurisdiction be it a Magistrate or the Court of Session, takes cognizance it is not only within the Courts powers to summon any one who, on the adequate materials, appears to it to be prima facie guilty of the said offence but indeed it is its duty to do so, Raghubans Dubey's case arose under the old Code but it is manifest that the situation is identical under the present Code, and the same view has then been expressly reiterated in Satpathy v. Tikaram Agarwala . in the context of commitment on a murder charge to the Court of Session by a Magistrate of a person not sent up as an accused by the investigating agency. Indeed, their Lordships expressly quoted the aforementioned observation in Raghubans Dubey's case and stamped it with their approval and affirmance under the new Code as well. Yet again, in Joginder Singh case (supra) Raghubans Dubey's case has been reiterated. However, the larger and universal principle underlying the rationale has been recently enunciated in powerful language by Desai, J. speaking for the Constitution Bench in A. R. Antulay v. Ramdas Sriniwas Nayak and Anr. in the following terms:
Punishment of the offender in the interest of the society being one of the objects behind penal statutes, enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight jacket formula of locus standi unknown to criminal jurisprudence save and except specific statutory exception.
Therefore, it seems to follow from the long line of precedent beginning with Raghubans Dubey's case that a Magistrate trying a warrant case as also a Court of Session having once validly taken cognizance of the offence on the basis of police report (when considering material before it for framing a charge) is not only entitled but, indeed, duty bound to summon a person as an accused to stand trial before it if it is fully satisfied of the existence of a prima facie case against an additional accused who may not have been sent up as such. To use the language of the Final Court, the summoning of the additional accused is part and parcel of the proceeding initiated by the taking of the cognizance of an offence.
6. Again, the view I am inclined to take is strongly buttressed by way of analogy from the virtually admitted position that a Magistrate trying a warrant case, when considering the question of framing of the charge under Sections 239 and 240 of the Code, can summon an offender as an additional accused without recording evidence, if he were satisfied on the basis of the report under Section 173 of the Code that a prima facie case was made out against him. Once it is so, there seems to be no rationale whatsoever for holding that under identical and, in any case, similar power under Sections 227 and 228 of the Code (as already highlighted earlier) the Court of Session should be denuded of the right to summon an additional accused who has not been so sent up by the investigating agency or not committed by the Magistrate. Indeed, as a superior Court the Sessions Judge would and, obviously, should have the same if not wider, powers than the Magistrate in an identical situation. Indeed, a closer analysis shows that the power of the Court of Session under Sections 227 and 228 of the Code are closely similar to if not identical with those of the Magistrate under Sections 239 and 240 of the Code and necessarily the legal position and the result cannot possibly be different.
7. This position becomes manifest when a comparison is made of a few changes introduced in the present Code from the earlier one. Under the Code the power of discharge which was previously exercised by the Magistrate is now exercised by the Sessions Judge under Section 227 of the Code. It is at this stage that the Sessions Judge applies his conscious mind to the records and documents mentioned in Sections 173, 227 and 228 of the Code for framing a charge against the accused as he is invested within the power of taking cognizance of a 'case' by the Code. This power now, because of Section 209. cannot be exercised by the Magistrate. If this power were to be denied to the Sessions Judge then it is likely to give unbriddled power to the investigating agency in determining the guilt or innocence of the culprits itself in place of the Court, If for wrong or extraneous considerations a person accused of an offence is let off by the investigating agency then there would be no effective remedy against him if the argument raised on behalf of the petitioners is to be accepted, except, on a separate complaint filed by the aggrieved party. Circumstances sometimes might be such in which there may not be any complainant to file a complaint or if there is any he may either not like to move or be prevented from prosecuting an independent and separate complaint. Such a restricted interpretation was sought to be placed by the Andhra Pradesh High Court in PC Lingaiah v. State of Andhra Pradesh 1977 Cr. L.J. 414. but the same has been expressly overruled by their Lordships in Joginder Singh's case. . In consonance with the view I am inclined to take, a learned single Judge has reiterated his identical opinion in an unreported case of Amar Singh v. State of Punjab Cr. Misc. No. 4220 of 1977 decided on 18 Nov. 1977. and Randhir Singh v. Kala Singh. (1977) 81 P. L. R. 286.
8. The matter may equally be examined from another refreshing angle. For a moment one may leave the procedural provisions altogether apart, On larger principle, one can see no adequate reason to fetter and shackle the power of a superior Court like that of the Court of Session from summoning a person as an additional accused to stand trial when on the materials before ii, it is satisfied that there exists a conclusive or, in any case a prima facie case against him. It is for this reason that in Rghubans Dubey's case the Supreme Court labelled this power as being virtually coupled with the duty of summoning such an additional accused and such a power is part and parcel of the proceeding initiated by taking cognizance of the offence. The glaring instances necessitating the exercise of such power or duty would be when the investigating agency in its report under Section 173 without any reason or basis whatsoever exonerates a person specifically named in the first information report and fully implicated in the crime. Indeed, such an example is provided pertinently in the present case itself. Herein the Court of Session has come to the categoric conclusion that all the three petitioners were named at the earliest in the first information report and whilst petitioners Zamiruddin has been named by as many as four witnesses in their statements under Section 161. the other two, namely, Latfur Rahman and Belal have been named by nearly six witnesses. Nevertheless the police acting wholly arbitrarily chose to send up only one accused for trial. The learned Sessions Judge was thus right in his conclusion that there appeared to be absolutely no reason for not submitting the charge sheet by the police against the three petitioners, To hold in such a situation that if the investigating agency blatantly exonerates an accused person of a heinous crime, the Court of Session itself will be rendered powerless to put such an offender in the dock at the very opening stage of the trial would, to my mind, only hamper the cause of justice rather than advance it, It is to be borne in mind that herein we are construing the procedural provisions and it is well settled that the procedure is the hand maid of justice and is not to be employed as a road block thereof. Therefore, on the larger canon of construction there appears to be no logic for narrowly construing the statute so as to denude the Court of the power to summon a person to stand his trial at the outset even when wholly convinced of a prima facie case against him on the basis of materials in the final report which is admittedly adequate for framing a charge against the committed accused under Section 229.
9. Learned Counsel for the petitioners when expressly pressed was unable to advance any adequate rationale for canvassing a constricted construction which further appears to lead to somewhat anomalous results which would be noticed hereinafter. The sole submission in this context advanced by h m was that the Court of Session was prohibited because of the allleged bar under Section 193 of the Code from summoning the additional accused.
10. One may, therefore, proceed to examine the stand whether Section 193 is a hurdle against summoning the additional accused under Sections 227 and 228 of the Code. This aspect pointedly calls for examination in the light of the earlier Section 193 of the old Code and the change wrought therein by the present Code. It is therefore, necessary to juxtapose the two provisions-
Old Code Section 193 (1) .- Except as otherwise expressly provided by this Code or 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.
New Code Section 19 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.
From the above, the meaningful and significant change brought about in the present Code seems manifest. In the earlier provision, the requirement was that the accused must have been committed to the Court of Session by a Magistrate. The legislature made a change by deleting the word 'accused' and provided instead that the 'case' should have been committed to the Court of Session. It seems to be plain that because of the aforesaid change (and it had been earlier so construed as well), the stand of the petitioners in this context becomes doubly untenable As authoritatively interpreted by the Final Court in Raghubans Dubey's case and, particularly so now in view of the change in Section 193 of the Code the Court of Session takes cognizance of the case or the offence as a whole and, therefore is entitled to summon any one who the material before it, appears to be guilty of such offence to stand trial before it. To highlight, what is committed to the Court of Session by the Magistrate is the case or the offence for trial and not the individual offender therefore. To hold otherwise would be again relapsing into the fallacy that cognizance is taken against individual accused persons and not of the offence as such. This was the evil which the amendment sought to remedy in express terms. Apart from the rationale, the matter appears to me as otherwise concluded by the following observation in Joginder Singh and Anr. v. State of Punjab and Anr. (supra)-
It will be noticed that both under Section 193 and Section 20) the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provision 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 qua those accused who are before the Court is committed then the cognizance 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 way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial also with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it....
Therefore, what the law under Section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well. Therefore, the argument that the summoning of an additional accused by a Court of Session is violative of Section 193 of the Code appears to be wholly fallacious. Once the case has been committed, the bar of Section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any individual accused of the crime. The contention now pressed on behalf of the petitioners was equally raised in Amar Singh's and Randhir Singh's case (supra) and was categorically repelled. I would entirely endorse the view expressed in these cases. It bears repetition that their Lordships in Joginder Singh's case expressly overruled the single Judges view in P. C. Lingaiah v. State of Andhra Pradesh (supra) which had earlier struck a discordant note and had been relied upon by some of the other High Courts taking a contrary view.
11. Stage is now set for adverting to Satyanarayan Yadav v. State of Bihar (supra) taking a contrary view which indeed necessitated this reference to the Full Bench. A reference to the very brief discussion on this point in paragraphs 6 to 9 of the Report would indicate that the conclusion proceed from three basic premises. It was opined that there has been a radical change of the law in the new Code by the substitution of Section 319 in place of Section 351 of the old Code and consequently apart from Section 319 there was no power in the Code to summon the additional accused persons for trial. It has then been held that the salutary rule of Raghubans Dubey v. State of Bihar was in the context of the old Code and is now superseded or overridden by the insertion of Section 319. Lastly it was held as a dictum that Section 319 of the Code is now the sole repository of the power to summon additional accused persons.
12. With the deepest deference and humility, it appears to me that all the three premises aforesaid which underlie the reasoning of S. Narain, J. speaking for the Bench in Satyanarayan Yadav's case are not tenable. It seems that the true import of the twin golden rule in Raghubans Dubey's case was missed namely, that it is the duty of the Court to find out who the offenders really are and once it comes to the conclusion that some persons other than those sent up by the police are involved, it is its duty to proceed against those persons and further that the summoning of such additional accused is part and parcel of the proceeding initiated by the taking of cognizance of offence by the Court. The principle aforesaid was called by the Final Court from another basic tenet that a Court takes cognizance of an offence and not the offender and this was so held even before the amendment brought about in the new Code, and on the then existing provision of the old one. The rule in Raghubans Dubey's case was in affirmance of a long line of precedent beginning with the Full Bench decision in Mehrab v. Emperor A.I.R. 1924 Sind 71. Saifar v. State of West Bengal . Ali Ullah v. The State 1963 (2) Cr.L.J. 66 (Alld.) and Fatta v. The State A.I.R. 1964 Punj. 351. This principle that the power to summon the additional accused is a power coupled with a duty to do so and is part and parcel of the procedure of taking cognizance is so well entrenched that it is not possible to subscribe to the view that Section 319 of the Code is now the sole repository of such a power.
12A. What perhaps deserves pointed attention is the fact that the Final Court itself, even after coming into force of the present Code which was patently applicable, has in terms quoted and reiterated the rule in Raghubans Dubey's case with express approval in Joginder Singh's case. The affirmance of the rule there in paragraph 7 of the report is, particularly, instructive. It is true that in the said case some evidence was recorded in the trial before summoning the additional accused persons. However, this was not even remotely so in Hareram Satpathy's case. Therein no fresh evidence at all was recorded and the Magistrate had summoned the additional accused wholly on the basis of statements made by witnesses under Section 161 of the Criminal Procedure Code. Reversing the High Court's view and upholding the Magistrate's action, it was concluded therein as follows-
In the instant case he Sub Divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record 'he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not in our judgment exceed the power vested in him under law.
In holding as above, their Lordships again quoted from and reiterated the rule in Raghubans Dubey v. State of Bihar, thus leaving no manner of doubt that the enactment of the new Code had in no way changed the legal position. Therefore, the ratio in Hareram Satpathy's case can in no way be distinguished or skirted. Obviously, Joginder Singh's case and Hareram Satpathy's case could not be noticed in Satyanarayan Yadav's case which was rendered earlier. It would run against the grist of the ratio and the binding authority of Joginder Singh's case and Hareram Satpathy's case to hold that the new Code by enacting Section 319 has overriden the statutory enunciation of the rule in Raghubans Dubey's case and, indeed, it is evident that Satyanarayan Yadav's case is no longer good law can this point in view of these later decisions of the Supreme Court.
13. Again with considerable deference it seems to me that the basic error which crept in Satyanarayan Yadav's case was the assumption that Section 319 of the Code is the sole repository of power for summoning the additional accused for trial by a Magistrate or a Court of Session. This conclusion has been arrived at more as a dictum than on any exhaustive consideration of principle or precedent in support thereof. It seems to have been missed that Section 319 operates in the new field where the trial has already proceeded or an inquiry has already been commenced. Indeed the key words aie the opening ones-"Where, in the course of any inquiry into, or trial of, an offence". It is thus patent that Section 319 designed to meet the specific and limited situation of a Court discovering in the midst of a trial or inquiry that some additional accused should also be tried together with the persons already before it. This provision, indeed, has uo relevance whatsoever with the pre-trial or the pre-inquiry stage, i.e. before the framing of the charge after cognizance has been taken or before any inquiry has as yet commenced, Therefore, Section 319 operates in a field or an arena altogether different from that of the taking of the cognizance of the offence and procedures which are part and parcel thereof under the rule of Raghubans Dubey's case. Again the earlier provisions of Sections 209, 227, 228, 230 and 240 pertain to stage before the actual framing of the charge and commencement of the trial and, therefore, operate in a field distinct from that under Section 319. It is obvious that the attention of the Bench was not at all drawn to this aspect of the matter under Sections 209, 227, 228, 239 and 240 and, consequently, there is no discussion in this context at all. Even the placing of Section 319 in the Chapter of general provisions as to inquiries and trials is itself indicative of its limited import. When statutory provisions are dealing with distinct situation and providing distinct procedures therefore it seems, with respect' erroneous to say that one of the procedures would be the sole repository of the power of summoning additional accused. With great respect, therefore, the distinction between the situation in the midst of a trial and inquiry and the situation in preceding such inquiry or trial seems to have been altogether missed in Satyanarayan Yadav's case. With the deepest respect, I am unable to subscribe to the view that Section 319 of the Code is the sole repository of the power of summoning additional accused even at the stage of cognizance and what may be part and parcel of that procedure as also of the stages for committal and for consideration for the framing of a charge or a discharging of an accused person. With respect, Section 319 was never intended to cover all these distinct and separate fields. Satyanarayan Yadav's case in so holding does not lay down the law correctly.
14. Satyanarayan Yadav's case rightly held that under the old Code the rule of Raghubans Dubey's case would hold unfettered sway. However, it took the view that a radical change had been wrought in the new Code to abrogate that rule. The core question, therefore, is whether the mere substitution of Section 319, place of the corresponding provisions of Section 351 of the old Code was expressly intended to, and has the effect of, sweeping away and overriding the solitary principle enshrined in Raghubans Dubey's case. This issue has inevitable to be examined in the context of its legislative history. Admittedly, in the old Code the corresponding Section was a somewhat brief one namely, Section 351 thereof. It is best to first juxtapose these two provision and thereafter delineate the process and legal effect of the substitution of Section 319 in place of the earlier provision:
New Code
319. (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 Old Code (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 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.
Old Code 351, (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 an 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 in the course of an inquiry under Chapter XVIII or after a trial has been begun the proceedings in respect of such person shall be commenced afresh and the witnesses re-heard.
It is manifest that under the old Code in Chapter XXIV pertaining to general provisions as to inquiries and trials the earlier equivalent provision was Section 351 which provided that any person attending a Criminal Court may be detained by such Court for the purpose of inquiry into, or trial of, any offence which from the evidence may appear to have been committed, and he may be proceeded against as though he had been arrested or summoned. As a safeguard, it provided that in such a situation the evidence shall be re-heard in the presence of the newly added accused. When the matter of an indepth revision of the old Code came up for consideration by the Law Commission in its 41st Report, it opined as follows with regard to the existing Section 351:
24.80. It happens sometimes, though riot very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is only proper that the Magistrate should "have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in Section 351 for summoning such a person if he is not present in Court. Such a provision would make Section 351 fairly comprehensive and we think it proper to expressly provide for that situation.
24.81...
About that the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is that the whole case against all known suspects should be proceeded with expeditiously, and convenience requires that cognizance against the newly added accused should betaken in the same manner as against the other accused. We, therefore, propose to re-cast Section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings....
In line with the aforesaid recommendation, the Law Commission, in place of the old Section 351, proposed its substitution by a new Section which is in pan materia with the present Section 319. This proposal was incorporated in the Law Commission's Draft of the Criminal Procedure Code, 1970 as clause 326 thereof. Later, the Joint Select Committee approved of the provision and thereafter the present Section 319 has been incorporated in the present Code.
15. The aforesaid legislative history seems to make it manifest that Section 319 of the Code was merely an elaboration of the old provision of Section 351 to make it comprehensive to cover certain lacuna discovered therein, The evil that was sought to be remedied by Parliament was to provide express power to summon the absent accused who was not attending the Court and to clarify that the cognizance against the added accused would be deemed to be taken as originally against the co-accused and further the purpose was that the whole case against all known suspects may be taken up expeditiously. That is the triple reason for which the old Section was made somewhat more comprehensive and detailed. The language employed in Section 319 and the location of the Section in Chapter is clearly a pointer to that effect. Thus it was never intended nor do the provisions of Section 319 remotely convey that the Section was sought to be enacted now as the sole repository of power for summoning the additional accused in all situations. Section 319 was in no way intended to make any radical or drastic departure from the law on this point under the old Code, It was not even remotely intended to override the salutary rule in Raghubans Dubey's case which the Supreme Court has reiterated at least twice it\ the context of the new Code as well.
16. To sum up on this aspect, I am, with great deference, firmly of the view that Satyanarayan Vaclav's case on this point decided the question erroneously and is hereby overruled.
17. To finally conclude, in answer to the question posed at the outset, it is held that the Court of Session, prior Co the framing of the charge, can without itself recording evidence, summon a person as an additional accused on the basis of the documents in the final report of the investigating officer under Section 173 of the Code independently of the provisions of Section 319 thereof and further that the substitution of Section 319 of the new Code in place of Section 351 of the old one has not wrought any radical change in the law by making the former as the sole repository of such power.
18. Applying the above it seems to be plain that the order of the learned Sessions Judge under revision is plainly meritorious and beyond the pale of any serious challenge, He expressly noticed that all the three petitioners have been specifically named in the first information report and further Zamiruddin, petitioner, had also been named by four other eye witnesses in their statement under Section 161 whilst Latfur Rahman and Belal, petitioners have been similarly named by six eye witnesses. He was right in his conclusion that there was hardly any reason for not submitting the charge sheet against the three petitioners by the police. The summoning of the three petitioners was, thus almost his duty in view of the rule in Raghubans Dubey's case. The miscellaneous petition is, consequently, without merit and is hereby dismissed.
Nagendra Prasad Singh, J.
19. I agree.
Uday Sinha, J.
1. I agree with the judgment just delivered by Hon'ble the Chief Justice, but as I was a party to the decision in Raghubans Yadav's case (supra), which has been overruled by this decision, it is only the most that I must state the circumstances of my conversion and to admit that I was wrong on the earlier occasion.
2. The content of any law, original or amendment can be appropriately gauged only by appreciating the state of the law, previous to its enactment and the need for the enactment, Section 319 of the Code of Criminal Procedure was enacted by Code of Criminal Procedure, 1973. Prior to its enactment, it was not disputed that a Court holding a trial had the jurisdiction to summon an accused who had not been sent up by the police, if there were materials appearing against him showing his complicity in the crime. This power flowed from the position that once cognizance had been taken, it is the duty of the trial Court to put on trial all persons concerned in the crime. There was no statutory provision in this behalf, but such a power was conceded to all trial Courts. This power has not been doubted by any one up till now. Question is, was this power sought to be curtailed by introduction of Section 319. In this connection, Section 351 of the Old Code would be relevant, This Section (quoted earlier in the leading judgment at paragraph 14) provided that a person present in Court if it appeared that he had been privy to commission of any offence. but he had not been sent up by police, the Court could detain him for the purpose of inquiry into or trial for the offence of which he was seized. The lacuna or shortcoming was that the Court could not order his arrest and put him on trial, if he was not present in Court. That was considered by the law makers as a handicap for the trial Court. That was the law prior to enactment of Section 319. It was, therefore, provided under the new Code that even if the accused were absent from Court, the Court may proceed against such person for the offence which he appeared to have committed. Thus Section 319 was enacted only to remove the short comming in Section 351 of the Old Code. It is not possible to hold that by enactment of Section 319 there was any intention to curtail the powers of the Court by unwritten law bat firmly established by judicial decisions the power to summon the additional accused jf (here were materials against him. This a fresh approach to the matter. This aspect of the matter escaped consideration in Satyanarayan Yadav's case (supra).
3. I am, therefore, of the view, in agreement with the Hon'ble the Chief Justice, that Section 319 of the Code of Criminal Procedure is not the sole repository of the power of a Court to summon additional accused not sent up by the police. The learned Session Judge was right in passing the impugned order summoning the petitioners. The application must, therefore, he dismissed accordingly.