Punjab-Haryana High Court
Gurdial Singh And Others vs State Of Punjab And Another on 22 February, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Misc.-M No. 34789 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc.-M No. 34789 of 2011
Date of decision : 22.02.2013
Gurdial Singh and others .....Petitioners
VERSUS
State of Punjab and another ....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Mansur Ali, Advocate
for the petitioners.
Mr. Deepak Balyan, Addl. AG, Punjab
for the State.
Mr. Sumer Brar, Advocate for
Mr. Vineet Chaudhari, Advocate
for respondent No. 2.
****
RANJIT SINGH, J.
The issue raised in the present petition is whether a Magistrate can join as an accused shown in column No. 2 in case which is not triable by him. The petitioners would submit that Magistrate cannot do so in case which is not triable by him but can do so in case which is triable by such Magistrate.
Pleading that the petitioners have been wrongly booked in FIR No. 68 dated 27.03.2010 under Sections 306/34 IPC, they have approached this Court to quash the order passed by the Chief Judicial Magistrate joining them as accused though the case is Criminal Misc.-M No. 34789 of 2011 2 triable by Sessions Court. Challenge is also to the order passed by the Additional Sessions Judge, Ferozepur. The grievance of the petitioners is on the limited ground noticed above.
Plea is that the petitioners, who were found innocent after investigation and shown in column no. 2 could not have been joined by the Magistrate to face prosecution once the case was not triable by the said Magistrate.
There is not much dispute as far as factual position is concerned. The police investigated this FIR registered at the instance of respondent No. 2 and after investigation the names of the petitioners were shown in column no. 2. The relevant portion of the challan, in this case, is annexed with the petition and so also the statements of various witnesses. The grievance is that despite this position, the Chief Judicial Magistrate, Ferozepur did not discharge the petitioners on an application filed by them against which they filed revision before the Court of Sessions, Ferozepur. The plea of the petitioners is that the Chief Judicial Magistrate could not have declined the prayer of the petitioners to discharge them as they could not be prosecuted.
As per counsel for the petitioners, the petitioners, who were shown in column no. 2 could only be joined as an accused in this case when stage under Section 319 Cr.P.C. was reached. Prior to this, the Chief Judicial Magistrate would not have any power to add the petitioners as an additional accused in exercise of power under Section 190 Cr.P.C because the case was not triable by him. The plea of the petitioners is that the Chief Judicial Magistrate was Criminal Misc.-M No. 34789 of 2011 3 only to remit the case for trial by court of competent jurisdiction and had no authority to join the petitioners as an accused once they were found innocent after investigation.
In support of this plea, counsel has placed heavy reliance on the case of Raj Kishore Prasad versus State of Bihar and another (1996) 4 Supreme Court Cases 495. Some debate had followed in regard to the power of Magistrate to join any person as an accused shown in column no. 2. Various judgments in this regard, which have followed somewhat different course, have been considered. The issue involved in the present case is limited and is to the extent whether a person shown in column no. 2, who is literally not an accused before the Court, could be joined as an accused prior to the stage of Section 319 Cr.P.C. in a case, which is not triable by the Magistrate, who is to commit the case alone.
Counsel for the respondent has opposed the prayer of the petitioners on the ground that the Magistrate would have such power and in support has made reference to some observations recorded in the case of Ranjit Singh versus State of Punjab, 1998 (4) RCR (Criminal) 552.
I have considered the submissions made before me. I have perused the judgment in the case of Raj Kishore Prasad (supra). The view expressed, in this case, by the Hon'ble Supreme Court seems to be very clear. It is recorded that after concluding the investigation, the police submitted papers before the Chief Judicial Magistrate. An application was moved before the Magistrate requiring him to exercise his powers to summon the appellant so as to send Criminal Misc.-M No. 34789 of 2011 4 him for trial alongwith the accused sent by the police before the Court of Session. The Chief Judicial Magistrate dismissed this application of the first informant whereupon he filed revision petition before the Court of Session. The Court of Session allowed the revision petition and directed the Chief Judicial Magistrate to issue warrant of arrest of the appellant to face trial. The appellant moved the High Court under Section 482 Cr.P.C. praying for quashing of the orders passed by the Court of Session. This petition was, however, dismissed against which the appellant, Raj Kishore Prasad, approached the Hon'ble Supreme Court.
It was viewed that sub Section 1 of Section 319 Cr.P.C. makes it clear that it operates in ongoing inquiry into, or trial of, an offence. It is further observed that in order to apply this Section, it is essential that need to proceed against the person other than the accused appearing to be guilty of offence, arises only on evidence recorded in the course of inquiry or trial. It is then observed that the proceedings before the Magistrate under Section 209 Cr.P.C.. are patently not trial proceedings and were never considered so at any point of time historically. It is further noticed that before amendment of Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. If the proceedings under Section 209 Cr.P.C. continue to be an inquiry, Section 319 Cr.P.C. would obviously be attracted subject of course to deciding whether the material put forth by investigating agency could be termed as evidence. No evidence is recordable by a Magistrate in such proceedings.
Criminal Misc.-M No. 34789 of 2011 5
The Hon'ble Supreme Court has further gone on to observe that under the new Code the functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the public prosecutor etc. are, thus, preliminary or ministerial in nature. The Magistrate at this stage takes cognizance of a sort but solely as facilitator rather than as an adjudicator. The role of the Magistrate, thus, is to see that the package sent to the Court of Session is in order, so that it can proceed straightaway with the trial and that nothing was lacking in content. Such proceedings, thus, were found to be not falling squarely within the ambit of 'inquiry' as defined under Section 2(g) of the Code of Criminal Procedure. The Court, accordingly, concluded that Magistrate at the stage of Section 209 Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need to be added or subtracted to face the trial before the Court of Session.
It is also noticed that stricto sensu, Section 319 of the Code cannot be invoked in a case where no evidence is led at the trial. Addition of an accused by summoning or resummoning the discharged accused and that too without hearing the accused has only been permitted in the manner provided under Section 319 Cr.P.C. on evidence adduced during the course of trial and in no other way. On this basis, counsel would contend that Chief Judicial Magistrate would not have any power to add or subtract any accused while exercising jurisdiction and power under Section 209 Cr.P.C. This has been so clearly and categorically observed by the Hon'ble Supreme Court in the case of Raj Kishore Prasad (supra) in the Criminal Misc.-M No. 34789 of 2011 6 following terms:-
" 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 alongwith 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 Criminal Misc.-M No. 34789 of 2011 7 magistrate, the Court of Session and that of the High Court Any other course would cause serious prejudice to the appellant. We order accordingly."
Counsel for the petitioner would also seek support from the observation recorded in the case of Kishori Singh and others versus State of Bihar and another (2004) 13 Supreme Court Cases
11. In this case also, the Court was dealing with the power to take cognizance of offences against person not charge-sheeted, whose complicity in the crime comes to light from the material available on record. The Court followed the case of Raj Kishore Prasad and Ranjit Singh (supra) and has held that Magistrate could not have issued process against those persons named in the FIR as accused but not charge-sheeted. Relevant observations are as under:-
" After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10.06.1997 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."
The Court further held as under:-
" So far as those persons against whom charge-
sheet has not been filed, they can be arrayed as "accused persons" in exercise of powers under Section 319 CrPC when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of Criminal Misc.-M No. 34789 of 2011 8 commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three-Judge Bench decision."
The offence in this case of Kishori Singh (supra) was triable by Sessions Court. The appellants before the Hon'ble Supreme Court were named in the FIR but not charge-sheeted. The process was issued against them by the Magistrate prior to the stage of Section 319 Cr.P.C. Revision against the same was allowed by the Sessions Court on the ground that said order was without jurisdiction. The High Court interfered with this order in revision. It is, accordingly, held that neither of the contingencies for arraying appellants as accused persons had arisen in the present case and so the Hon'ble Supreme Court held that impugned order of the High Court and Magistrate are not sustainable.
Though some different view may appear to have been taken by the Hon'ble Supreme Court in the case of Ranjit Singh (supra), where the Court was dealing with the power of adding new accused but said observations are made in somewhat different context. Here the case had already been committed to the Court of Sessions. The question before the Hon'ble Supreme Court was whether Sessions Judge could add an accused before the stage of Section 319 Cr.P.C. to face the trial. It is observed that the Sessions Judge can do so after collecting evidence. He may not have to otherwise wait till entire evidence is collected. The Court has held in Criminal Misc.-M No. 34789 of 2011 9 this case that the Sessions Judge would not have any power to add an accused before the stage of Section 319 Cr.P.C and in case he is faced with such a situation, where it is not possible to frame charge against those accused, who are committed to him for trial then he could send a report to the High Court and High Court in exercise of inherent/revisional power would direct the Magistrate to rectify the committal order. In this way, this judgment may convey to an extent that Magistrate would have power to add an accused before the stage of Section 319 Cr.P.C. is reached.
Counsel for the petitioner, however, would explain this in the background that such power could be so exercised by the Magistrate when directed by the High Court on a reference so made by the Court of Session. The Apex Court had considered the cases of Raj Kishore Prasad and Kishori Singh (supra) and still had made such observations. The Hon'ble Supreme Court after considering the relevant provision has observed that the committal of a case to the Court of Session will be complete only on compliance with the formalities enumerated in Section 209 Cr.P.C., which includes dealing with the accused in the manner mentioned therein. The Court had then gone to observe that during the said stage the Court of Session could deal only with the accused, who is referred to in Section 209 Cr.P.C. It is observed that the accused, who can appear or can be brought before the Session Court at that stage is only that the accused, who is referred to in Section 209 Cr.P.C. Section 227 Cr.P.C. deals with the power of the Court to decide whether that accused is to be discharged or not. The Sessions Court is obliged to Criminal Misc.-M No. 34789 of 2011 10 frame the charge if accused is not to be discharged and then the stage of recording of the plea of the accused is reached under Section 229 Cr.P.C. whereafter the stage of evidence collection commences.
Having noticed these provisions, the Hon'ble Supreme Court has observed that once the Court of Session takes cognizance of the offence pursuant to the committal order the only other stage it is empowered to add any other person to the array of the accused is after reaching the evidence collection stage, which is power under Section 319 Cr.P..C. The Court has observed that it was unable to find any other power for the Session Court to permit addition of any new person or persons to the array of the accused. It is in this background that the Court went on to explain how the difficulty arising in framing the charge against the accused could be solved by making reference to the High Court whereby the direction could then follow to the Magistrate to commit the accused, who ought to have been committed on the basis of material placed before the Magistrate. Visualizing this situation, the Hon'ble supreme Court in Ranjit Singh's case (supra) observed as under:-
" Though such situations may arise only in extremely rare cases the Session Court is not altogether powerless to deal with such situations to prevent miscarriage of justice. It is then open to the Session Court to send a report to the High Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But we hasten to add Criminal Misc.-M No. 34789 of 2011 11 that the said procedure need be resorted to only for rectifying or correcting such grave mistakes."
The observation recorded in Ranjit Singh's case (supra) may tend convey that the Magistrate would have power to add any accused, who is not made an accused before him. If it had been otherwise the Hon'ble Supreme Court would not have recorded an observation that the Sessions Judge could then make reference to this Court and High Court in turn then would direct the Magistrate to act in accordance with law under Section 209 Cr.P.C.
The above observations, as made in Ranjit Singh's case (supra), have been doubted by three Judges Bench and, accordingly, reference is made to constituting a larger Bench to consider the issue as can be noticed from the reference order reported as Dharam Pal and another Versus State of Haryana and another 2006 (2) RCR (Criminal) 75. This case was directed to be heard by three Judges Bench in view of the conflict of opinion in the decisions of two Judges Bench of this Apex Court in Kishori Singh's case (supra), Rajinder Prasad v. Bashir, 2001 (4) RCR (Criminal) 312 on the one hand and Swill Ltd. versus State of Delhi and another 2001 (3) RCR (Criminal) 826 on the other. While the case came up for consideration before three Judges Bench, two other decisions having direct bearing were brought to the notice of the Court. These were Kishun Singh v. State of Bihar 1993 (1) RCR (Criminal) 647 and other decisions of three Judges Bench in the case of Ranjit Singh (Supra).
In Kishun Singh's case (supra), the Court has observed Criminal Misc.-M No. 34789 of 2011 12 that the Sessions Court will have power under Section 193 Cr.P.C. to take cognizance of an offence and summon other persons, whose complicity in the commission of the case can prima facie be gathered from the material available on record. In Ranjit Singh's case (supra), three Judges Bench has expressed contrary view. While expressing itself about Ranjit Singh's case (supra), the Hon'ble Supreme Court in Dharam Pal's case (supra) has observed that the effect of this is that in less serious offences triable by the Magistrate, he would have the power to proceed against those, who are mentioned in column no. 2, if on the basis of material on record he disagrees with the police conclusion. However, in serious offences triable by the Court of Sessions that Court will have to wait till the stage of Section 319 Cr.P.C. is reached. While noticing this position, it is clearly observed that in cases triable by the court of Sessions, a Magistrate as per law, would have no power to summon for trial an accused mentioned in column No. 2 to be tried with other accused. The Court thus, has observed that to an extent the impugned order of the High Court may have to be set aside. To resolve the conflict, three Judges Bench in case of Dharam Pal (supra) has directed that the matter be placed before the Chief Justice for constituting the larger Bench. While making reference, the Court has recorded its prima facie view by observing that the interpretation reached in Ranjit Singh's (supra) is not correct.
The ratio of law that will emerge from all these judgments would appear to be that in a case triable by the Court of Sessions, the Magistrate has to only perform ministerial functions and thus, Criminal Misc.-M No. 34789 of 2011 13 would not have any power to add an accused, which is not made an accused in the report under Section 173 Cr.P.C. Observation in Dharam Pal's case (supra) may be seen. In a case triable by the Magistrate, apparently, he seems to be having power to add an accused even if shown in column no. 2 while taking cognizance of offence on the basis of material annexed with the challan paper. Swill Ltd.'s case (supra) has so held. This was a case triable by a Magistrate. Similar observations are made in Rajinder Prasad's (supra) but these may appear to be contrary to the observation made in Dharam Pal's case (supra).
The view expressed in Ranjit Singh's case (supra) where it was held that the Sessions Judge will not have power to add an accused till the stage of Section 319 Cr.P.C. is reached is doubted on the ground that in serious offences such power is not available whereas in less serious offences Magistrate seems to be having such power. This will further strengthen the view as noted above that Magistrate can add an accused under Section 190 Cr.P.C. even if he is not an accused charged.
No doubt has otherwise been expressed regarding the law laid down in Raj Kishore Prasad's case (supra) where this issue was directly under consideration. That being the position, it would be safe to hold that the Magistrate would lack power to add an accused, who is shown in column no. 2 while committing proceedings to Court of Session in a case triable exclusively by the Sessions Court. The Magistrate may have such power where the offences are triable by him as this has been held in large number of cases like Swill Ltd. and Criminal Misc.-M No. 34789 of 2011 14 Rajinder Prasad (supra). To further strengthen his submissions, the counsel for the petitioner has referred to the case of Jile Singh versus State of U.P. and another 2012 (1) RCR (Criminal). The Court in this case has placed reliance on the cases of Ranjit Singh (supra), Kishori Singh (supra) and Raj Kishore (supra). However, this issue of reference for constituting larger Bench after doubting the view expressed in Ranjit Singh's case (supra) is not brought to the notice of the Bench in this case.
Accordingly, it would be safe to observe that the impugned order whereby Chief Judicial Magistrate has joined the petitioners as an accused while committing the proceedings before the Court of Session cannot be sustained and is set aside. Since the accused has been shown in column no. 2 they will continue to be shown as such in the proceedings, which are pending before the Court of Session. This order will not be a bar for Sessions Court to invoke jurisdiction and power under Section 319 Cr.P.C. on the basis of evidence which is led before the Court. The order passed by the revisional Court to an extent that it has declined the prayer of the petitioners against the order passed by the Chief Judicial Magistrate would also be set aside. However, this shall not be construed to mean that the prayer of the accused to discharge them is allowed in any manner by this Court while setting aside those orders. It is made clear that the petitioners would continue to be shown in column Criminal Misc.-M No. 34789 of 2011 15 No. 2 and may be summoned under Section 319 Cr.P.C. on the basis of evidence appearing against them during trial.
February 22, 2013 ( RANJIT SINGH ) rts JUDGE