Supreme Court - Daily Orders
Rafiusshan vs State Of U.P. on 8 November, 2021
Bench: Uday Umesh Lalit, S. Ravindra Bhat
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1347 OF 2021
(@ out of SLP (Crl.) No. 1752/2020)
RAFIUSSHAN Appellant(s)
VERSUS
STATE OF U.P. & ORS. Respondent(s)
O R D E R
Leave granted.
This appeal challenges the judgment and order dated 07-11-2019 passed by the High Court of Judicature at Allahabad allowing Application No.38681/2019 preferred by respondent Nos.2 to 4 (herein) under Section 482 of the Code of Criminal Procedure (“the Code”, for short) In crime registered pursuant to FIR No.671/2017 dated 29.12.2017 lodged with P.S. Parikshitgarh, District Meerut, U.P. in respect of offences punishable under Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 IPC, eight persons Signature Not Verified were sent up for trial vide charge-sheet dated Digitally signed by Indu Marwah Date: 2021.11.11 29.03.2018.
11:39:26 IST Reason:
Pertinently, 13 persons were named as offenders in the FIR. In the subsequent charge-sheet filed on 23.06.2018, two other 2 persons were sent up for trial.
After the committal of the matter, Sessions Trial Nos.447 and 912 of 2018 were being proceeded with in the Court of Additional District Judge, Court No. 13, Meerut.
Upon an application presented under Section 193 of the Code seeking appropriate orders to summon the remaining three accused namely respondent Nos. 2 to 4 herein, the Trial Court by is order dated 18.09.2019 allowed said application and directed that respondent Nos. 2 to 4 be tried for the offences punishable under Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 IPC.
The aforesaid order passed by the Trial Court was subject matter of challenge in the proceedings initiated by respondent Nos. 2-4 by Application No. 38681/2019.
The High Court quoted some of the paragraphs from the decision of this Court in Dharam Pal & Ors. vs. State of Haryana & Another1 as under:
“7.1.Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?
7.2.If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in 1(2014) 3 SCC 306 3 column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?
7.3.Having decided to issue summons against the appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
7.4.Can the Sessions Judge issue summons under Section 193 CrPC as a court of original jurisdiction?
7.5.Upon the case being committed to the Court of Session, could the Sessions Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?
7.6.Was Ranjit Singh case [Ranjit Singh v.State of Punjab, (1998) 7 SCC 149 , which set aside the decision in Kishun Singh case [Kishun Singh v.State of Bihar, (1993) 2 SCC 16, rightly decided or not?” ... ... ...
“The Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) CrPC and to proceed against the accused persons dehors the police report. The Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) CrPC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being prima facie satisfied that a case had been made out to proceed against the persons named in Column 2 of the report, he may proceed to try the said persons or if he is satisfied that a case had been made out which was triable by the Court of Session, he must commit the case to the Court of Session to proceed further in the matter. Further, if the Magistrate decides to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the 4 matter or commit it to the Court of Session if the same is found to be triable by the Sessions Court.
The Sessions Judge is entitled to issue summons under Section 193 CrPC upon the case being committed to him by the Magistrate. Section 193 CrPC speaks of cognizance of offences by the Court of Session. The key words in the section are that “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”.
The provision of Section 193 CrPC entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The Second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. The submission that the cognizance indicated in Section 193 CrPC deals not with cognizance of an offence, but of the commitment order passed by the Magistrate, was specifically rejected in view of the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section.
Cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the Code will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on findings from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge.
In the process of coming to the aforesaid conclusions, this Court in Dharam Pal vs. State of Haryana (supra) accepted the view expressed in the case of Kishun Singh vs. State of Bihar, reported in (1993) 2 SCC 16 (SCC p.320, para 40) the Sessions Court has jurisdiction in commital of a case to it, to take 5 cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. It specifically held that upon committal under Section 209 of the Code, the Sessions Judge may summon those persons shown in Column 2 of the police report to stand trial along with those already named therein.
Interestingly, at the same time, the Court in the case of Dharam Pal vs. State of Haryana (supra) also held that it would not be correct to hold that on receipt of a police report and seeing that the case is triable by a Court of Session, the Magistrate has no other function but to commit the case for trial to the Court of Session and the Sessions Judge has to wait till the stage under Section 319 of the Code is reached before proceeding against the persons against whom a prima facie case is made out from the material contained in the case papers sent by the Magistrate while committing the case to the Court of Session.” However, the High Court made following observations regarding the present matter:
“In the present matter as the cognizance has already been taken by the learned Sessions Judge and charges were framed against the accused after considering the police papers annexed with the charge-sheet and the trial had started, it would not be proper for the trial court to take further cognizance of the case and to summon the three accused by the impugned order. The summoning of the three accused by the impugned order is not in consonance with the legal provisions of law. The cognizance taken by the trial Sessions Court under Section 193 Cr.P.C. for the second time is not perfectly valid and permissible by law. The impugned order is not legally proper and the impugned order transpires that the trial sessions court has abused the process of law. The impugned order is liable to be quashed.” The High Court thus set aside the order passed by the Trial Court.
In this appeal challenging the decision of the High 6 Court, we have heard Mr. Atul Sharma, learned advocate for the appellant and Mr. Raghunath Pathak, learned Advocate for respondent Nos. 2 to 4.
The instant matter is completely covered by the question posed in paragraph 7.4 of the decision in Dharam Pal. As stated by this Court, once the case is committed to the Court of Sessions, the Court of Sessions assumes original jurisdiction and that it would be within its power to pass appropriate directions under Section 193 of the Code. The decision of the High Court in the instant case, is not consistent with the law laid down by this Court. We, therefore, allow this appeal, set aside the order passed by the High Court and restore the order passed by the Trial Court.
Respondent Nos. 2 to 4 shall appear before the trial Court on 22.11.2021, whereafter they shall be bound by suitable process and continue to appear and participate in the proceedings before the Trial Court. In case of their failure to appear on 22.11.2021, the police shall be at liberty to take them in custody immediately.7
Copies of this order shall be sent to the concerned Trial Court, the Jurisdictional Chief Judicial Magistrate and the Police Station for compliance.
With the aforesaid observations, the appeal is allowed.
........................J. (UDAY UMESH LALIT) .......................J. (S. RAVINDRA BHAT) New Delhi, November 8, 2021.
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ITEM NO.19 Court 2 (Video Conferencing) SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 1752/2020
(Arising out of impugned final judgment and order dated 07-11-2019 in A482 No. 38681/2019 passed by the High Court Of Judicature At Allahabad) RAFIUSSHAN Appellant(s) VERSUS STATE OF U.P. & ORS. Respondent(s) (FOR ADMISSION and I.R. and IA No.29913/2020-PERMISSION TO FILE LENGTHY LIST OF DATES ) Date : 08-11-2021 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE S. RAVINDRA BHAT For Petitioner(s) Mr. Atul Sharma, AOR Dr. O.P.Sharma, Adv.
For Respondent(s) Mr. Rajan Kumar Chourasia,Adv., Mr. Sarvesh Singh Baghel, AOR Mr. Rajeev Kumar Dubey, Advocate Mr. Raghunath Pathak Adv Mr. Pradeep Kumar Yadav, Advocate Mr. Bhuwan Raj, Adv.
Mr. Vishal Thakre, Adv.
Mr. Sanjeev Malhotra, AOR(R-2 to 4) UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order. Pending applications, if any, shall stand disposed of.
(INDU MARWAH) (VIRENDER SINGH)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)