Rajasthan High Court - Jaipur
Bittu Alias Dinesh Kumar vs State Of Rajasthan on 18 March, 1998
Equivalent citations: 1998CRILJ3036
ORDER A.S. Godara, J.
1. This Criminal Misc. Petition under Section 482, Cr. P.C. has been filed by the accused-petitioner invoking inherent jurisdiction of this Court being aggrieved by the order dated 13-9-97 passed by the Addl. Chief Judicial Magistrate, Raisinghnagar.
2. Briefly stated, the facts giving rise to the petition are that MohanLal informant is resident of Raisinghnagar, District, Sri Ganganagar. He had two sons, namely, Surendra Kumar and the younger one Ashok Kumar. However, due to some family feuds regarding partition of property, Ashok Kumar was given a separate share by way of allotment of movable as well as immovable property and was separated from the rest of the members of the family and Mohan Lal. Surendra Kumar (deceased) along with his wife and children was residing with Mohan Lal. This incident reportedly took place on 8-6-97 at about 8-15 p.m. in Raisinghnagar Town. Mohan Lal accompanied by Surendra Kumar, after closing his book-shop, was proceeding towards his house and while passing from Ishardas Dharamshala it was noticed that Ashok Kumar along with Inder Pal and Bittu alias Dinesh Kumar who is present petitioner along with some unknown persons were waiting for them. They immediately assaulted Surendra Kumar with cricket bats and he was subjected to a brutal assault resulting in his; instantaneous death on the spot. The incident was! immediately reported at the Police Station, Raisinghnagar by Mohan Lal himself against Ashok Kumar, Inder Pal as well as the petitioner and their unknown associates on which FIR No. 215/97 under Sections 302, 147, 148, 149, 120B and 114, IPC was registered and investigation was started.
3. After completion of investigation, a charge-sheet against Ashok Kumar, Inder Pal, Sukh Dev, Nittua alias Baljindra Singh, Lovkumar alias Laviya, Bhajan Lal alias Kaliya was filed under the aforesaid sections of the Indian Penal Code in the Court of Addl. Chief Judicial Magistrate, Raisinghnagar. However, as a result of investigation, the present accused-petitioner was hot charged-sheeted and hence from the side of Mohan Lal an application was moved before the learned Addl. Chief Judicial Magistrate thereby requesting that since the police had left out the accused-petitioner who was also involved in commission of the aforesaid, offences against the evidence on record and, therefore, Cognizance of the aforesaid offences was also taken against the accused-petitioner and, consequently, after hearing both sides, vide his impugned order dated 13-9-97, the learned Addl. Chief Judicial Magistrate took cognizance of the aforesaid offences against the accused-petitioner as well and ordered for his production by way of issuance of warrant of arrest and, being aggrieved, this petition has been preferred.
4. I have heard the learned counsel for the accused-petitioner as well as the learned P. P. and have also perused the legality, propriety and regularity of the impugned order along with the documents and material relied upon and pro duced by the prosecution under Section 173(2), Cr. P.C.
5. The core question that calls for consid eration is whether the learned Addl. Chief Judi cial Magistrate, while taking cognizance of the said offences against the accused-petitioner, has committed any illegality, irregularity or impro priety occasioning a failure of justice warranting its setting aside.
6. The learned counsel for the petitioner, while taking through the statements of the witnesses examined by the police during the course of investigation under Section 161, Cr. P.C. as well as the FIR immediately lodged by Mohan Lal at the Police Station, Raisinghnagar, has submitted that as per the FIR, in addition to the said three named persons including Ashok Kumar who is none but son of Mohan Lal himself also named five unknown persons of associates in these three named persons who had assaulted Surendra Kumar fatally causing his instantaneous death but, subsequently, he has stated that only five persons including the aforesaid three named persons were the assailants. Similarly Laxman Singh, Gurjindra Singh, Jaswant Singh, Munne Shah and Sat Pal have also deposed different number of persons who were assailants and, besides, Laxman Singh, Gurjindra Singh, Jaswant Singh and Munne Shah have not named the accused-petitioner as one of the assailants and so his submission is that as a result of thorough investigation and so also certified by a large number of businessmen and independent persons of Raisinghnagar, the investigating agency rightly came to the conclusion that the name of the accused-petitioner was falsely mentioned in the" FIR and subsequently recorded statement of Mohan Lal and his family members who was not eye-witness and instead they have based their statements on the information given by Mohan Lal and so his submission is that the learned Addl. Chief Judicial Magistrate fell into a grave error thereby committing material illegality and impropriety overlooking other facts and circumstances of the case as borne out of the evidence of the rest of the witnesses who did not name the accused-petitioner and, instead, basing the impugned order mainly on the FIR to which, partly the statement of Mohan Lal himself runs counter and since Senior Police Officer including Addl. Superintendent of Police as well as members of the Grain Mercantile Association, Raisinghnagar, as a result of investigation, excluded the possibility of involvement of the accused-petitioner and, consequently, there was no material on the face of statements of Gurjindra Singh, Kamal Jeet, Bhuvaneshrwar, Veer Singh etc. who could have enabled the learned Addl. Chief Judicial Magistrate to have taken cognizance and, consequently, his further submission is that the impugned order has occasioned a failure of justice warranting quashing of the order of taking cognizance.
7. However, the learned P. P. has submitted that the impugned order is well merited and the same does not suffer from either illegality or any material irregularity or impropriety warranting interference with the same and, instead, in the interest of justice, on the basis of material and documents available before the trial Court, the cognizance has been taken.
8. Presently, suffice it to mention thatAshok Kumar is son of Mohan Lal and the deceased Surendra Kumar was his real elder brother. However, as the FIR No. 58/94 lodged by Surendra Kumar against the accused-peti- tioner and his associates and so also the statements of Mohan Lal shows that Inder Pal and the accused-petitioner who are real brother, had some quarrel and differences with the deceased in regard to payment of money and they had also earlier assaulted Surendra Kumar who lodged FIR against them with the police. Besides, investigation record further shows that they were associates of Ashok, Kumar who was inimical to his brother Surendra Kumar and his family and, he had, once he opted out of the family house of his parents, forcibly occupied the portion of house of his parents in which Mohan Lal and Surendra Kumar were residing along with their other family members. Since Ashok Kumar was demand-ing more share and was also bent upon forcibly occupying the residential house in which Surendra Kumar along with his parents and children was residing, Ashok Kumar appears to be after blood of his elder brother. Mohan Lal has clearly stated presence of Ashok Kumar, Inder Pal as well as the present petitioner in the FIR lodged immediately after the incident. He has further corroborated this fact in his statement under Section 161, Cr. P.C. Besides on being informed about this incident by a motorcyclist, Smt. Dwarki Devi mother of the deceased, Smt. Kamala wife of the deceased, Kumar Manu and Harsh Kumar who are children of the deceased came running to the place of occurrence whereat they were informed by Mohan Lal that the accused-petitioner and the aforesaid persons had killed Surendra Kumar to death. Besides Satpal has also clearly named the accused-petitioner to be one of the assailants.
9. In view of these circumstances, when the accused-petitioner had a very strong motive along with his real brother Inder Pal who was associate of Ashok Kumar accused to wreak vengeance on the deceased and he has been named in the FIR itself as one of the accomplices who had been waiting for the arrival of Surendra Kumar at the place of occurrence and who lost no time to have fatally assaulted and killed Surendra Kumar on the spot who suffered not less than 16 injuries and his skull was crushed resulting in his death and, consequently, since Laxman Singh, Gurjinder Singh, Jaswant Singh and Munne Shah did not specifically name the accused-petitioner that by itself does not exclude the possibility that the accused-petitioner was also one of the assailants and associates of Ashok Kumar who had so conspired and thereafter finding Surendra Kumar passing from the place of the occurrence, without giving any chance for defence/resistance subjected him to fatal assault resulting in his death. Consequently, when the father of the deceased Mohan Lal immediately named the accused-petitioner in the FIR and he also immediately named him as one of the assailants and involvement of the accused-petitioner in commission of murder of Surendra Kumar and his wife Smt. Dwarki Devi as well as Smt. Kamala, Kumari Manu, Harsh Kumar and Sat Pal have also named the accused-petitioner as one of the assailants and, as stated above, the accused-petitioner had a very strong motive to have involved himself in commission of this ghastly murder of Surendra Kumar who had also, on earlier occasion, assaulted Surendra Kumar with the aid and abetment of his brother Inder Pal. Ashok Kumar who had already left his wife and children to his inlaws' house in Punjab just before the occurrence and thereafter challenged the family members of the deceased to show them fateful day, lost no time to have, with the aid and abetment of his accomplices including the accused-petitioner, in committing murder of Surendra Kumar.
10. Resultantly, on the face of statements of Mohan Lal as well as his wife, besides, the wife of the deceased and his children as well as Sat Pal as also supported by the FIR and the medical evidence and the fact that the accused- petitioner was also inimical to the deceased and had a strong motive to have associated himself in the fatal assault on the deceased and; hence, the investigating agency could not'be"justified to have left out the accused-petitioner from the array of the accused-persons who were so challaned to the exclusion of the accused-petitioner before the learned Addl. Chief Judicial Magistrate, Raisinghnagar. Consequently, before the accused was committed, at the stage of taking cognizance itself, the learned Magistrate was expected to have applied his judicial mind to the fact as to who were the offenders, as found out from the material and documents filed by the police under Section 173(2), Cr. P.C. liable for trial for commission of the offences of which the learned Magistrate took cognizance in exercise of powers invested under Section 190(1)(a), Cr. P. C.
11. Consequently, when the aforesaid factsand circumstances as borne out of material and documents produced by the prosecution, there was a prima facie case showing involvement and complicity of the accused-petitioner in commission of the aforesaid offences, the learned Addl. Chief Judicial Magistrate was left with no option but to have exercised his judicial discretion in the interest of justice to find out whether the accused-petitioner was also liable to be tried for commission of the alleged offences and, consequently, on the basis of impugned order, which is well reasoned and there is no illegality, impropriety or infirmity, warranting any interference by this Court.
12. On the basis of aforesaid discussion, no nice discussion of all the facts and circumstances besides the statements of witnesses examined in defence of the accused-petitioner which are not helpful in displacing the aforesaid conclusion of existence of a prima facie case of cognizance against the accused-petitioner is warranted.
13. Lastly, the petitioner side has not challenged the vires of the empowerment of the committing Magistrate to take cognizance of the alleged offences against the person who is not challaned and sought to be brought to a trial with those who are challaned with equal vehemence and, instead, long arguments have been advanced on the merit of the impugned order on merit but, on the face of challenge regarding the competence and power of the committing Court also being, before the committing Court and so also this Court, this petition can be disposed of on a short and limited consideration as to whether the committing Magistrate, is, at all, empowered to take cognizance of the alleged offences qua the person who has been left out or not challaned by the investigation agency along with those accused-persons against whom a chargesheet has been filed before the committal Court of a Magistrate, before the case is committed to the Court of Session in exercise of his power vesting under Section 190(1)(b), Cr. P.C.
14. The question as to whether a Magistrate undertaking commitment under Section 209, Cr. P.C. of a case triable by a Court of Session, can associate another person as accused, in exercise of power under Section of the Criminal Procedure Code, or under any other provisions, came up for adjudication before the Apex Court in Raj Kishore Prasad v. State of Bihar 1997 Cri LR (SC) 92 : 1996 Cri LJ 2523 in the context of nature and scope of Sections 209 and 319, Cr. P.C.
15. In this ease, the informant-respondent lodged first information report against only one person accusing him of murdering his brother. During investigation, two witnesses claiming to be eye-witnesses, named one Raj Kishore Prasad, the brother of the said accused in the FIR also being present before the actual assault made by his brother and to have exhorted the named accused before hand to assault the victim who was consequently assaulted fatally.
16. On completion of investigation by the local police officers under the supervision of their seniors, on the ground of absence of sufficient evidence or reasonable ground for suspicion that Raj Kishore Prasad was also involved in the crime and he was found to be innocent, more so, when these two eye-witnesses did not come forward before the superior police officers to own their version, the police filed charge-sheet against the actual assailant only holding that Raj Kishore Prasad was not involved in the incident.
17. The first informant moved an application before the Chief Judicial Magistrate, Buxor in whose Court the challan was filed and the committal proceedings were pending to exercise his power to take cognizance against the said Raj Kishore Singh and to summon him to be committed to the Court to stand trial with his brother. The CJM dismissed the application. In Criminal revision filed there against before the Court of Session, the Sessions Judge, accepting the same, desired the Chief Judicial Magistrate to issue warrant of arrest to be issued against Raj Kishore Singh to face trial who moved the High Court for quashing the order of the revisional Court and consequential one passed by the C.J.M., under Section 482, Cr. P.C. which dismissed the petition and hence an appeal by Special Leave there against was preferred before the Apex Court requiring a verdict as to whether the C.J.M. has no power under Section 319, Cr. P.C. or otherwise (emphasis supplied), to add an accused in addition to the one facing commitment.
18. While elaborating and interpreting the scope and ambit of Sections 209 and 319, Cr. P.C, the Hon'ble Supreme Court (In Raj Kishore Prasad case 1996 Cri LJ 2523 (supra) observed in para 5 of the judgment that:
Sub-section (1) of Section 319 makes it clear that it operates in an on-going inquiry into, or trial of an offence. In order to apply Section 319, it is thus essential that the 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 any inquiry or trial. Proceedirs before a Magistrate Under Section 209, Cr. P.C. are patently not trial proceedings and were never considered so at any point of time historically. There has never been any doubt on that account. Before the amendment of the Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. Now do they continue to be so is the core question, to determine and spell out the powers of the Magistrate Under Section 209, Cr. P.C. If proceedings Under Section 209, Cr. P.C. continue to be an inquiry, Section 319, Cr. P.C. would be obviously attracted, subject of course to deciding whether the material put forth by the investigation could be termed as 'evidence', as otherwise no evidence is recordable by a Magistrate in such proceedings.
19. Besides, while citing recommendation of the Law Commission in its 41 st report regarding dispensing with preliminary enquiries under Section 209, Cr. P.C, it was summed up in para 8 of 1997 Cri LR (SC) 92: Para 11, of 1996 Cri LJ 2523 (SC) of the decision as under :
The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "committal proceedings" have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the record, notifying the public prosecutor etc., are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty of not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straight way with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion, do not fall squarely within the ambit of "inquiry" as defined in Section 2(g) of the Code of Criminal Procedure, which defines that "inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a Court", because of the prelude of its being subject to the context otherwise requiring". As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the 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 be added or subtracted to face trial before the Court of Session.
20. The Hon'ble Apex Court observed that, at the committal stage, in stricto sensu, Section 319 of the Cr. P.C. cannot be invoked in a case where no evidence had been led at a trial, wherefrom it can be said that the accused, other than the one facing trial appears to have been involved in the commission of the crime, summed up the answer in para 13 of Cri LR (SC)): Para 16 of 1996 Cri LJ 2523 (SC) of the judgment which runs as under:
13. 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 be 'evidence'. When such powers 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 along with the accused proposed to be committed to stand trial before it, it 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.
21. It was further held that when the case comes after commitment to the Court of Session and evidence is recorded, it (Sessions Court) may then in exercise of its power under Section 319, Cr. P.C. on the basis of evidence recorded by it, if circumstances warranting, proceed against the person so left out so far, to stand trial along with the accused committed, providing him with the necessary safeguards envisaged under Sub-section (4) of Section 319.
22. Hon'ble single Judge of this Court in S.B. Criminal Revn. Petn. No. 450/96 decided on 8-11-96, following the decision of the Apex Court in Raj Kishore Prasad v. State of Bihar 1997 Cri LR (SC) 92 : 1996 Cri LJ 2523, took the view that the Magistrate had no jurisdiction to lake cognizance of any offence in committal proceedings against any person who was not sent up by the police (investigating agency) along with other persons in the police report to be tried for the alleged offences.
23. However, as extracted above, the two Judge-Bench of the Hon'ble Supreme Court in Raj Kishore Singh's case 1996 Cri LJ 2523 (supra) thoroughly considering the nature, object and scope of Sections 207, 208 and 209 along with Section 319, Cr. P.C. has held that the committal proceedings under Section 209, Cr. P.C, though popularly termed as 'committal enquiry', do not admit of and envisage a fullfledged enquiry as defined Under Section 2(g), Cr. P.C. being merely of formal nature and hence, in absence of any evidence recorded during an enquiry or trial in the case, the aid of Section 319, Cr. P.C. cannot be invoked to add any new person as an accused in the case.
24. However, there was no question of consideration of nature and scope of provisions of Section 190, Cr. P.C. before the Hon'ble Apex Court, which speaks of empowerment of (Judicial) Magistrates described therein to take cognizance of offences in the manner as defined in Clauses (a), (b) and (c) of its Sub-section (1). Clause (b) of Sub-section (1) of this section says that the Magistrate, subject to the provisions of this Chapter (XIV), may take cognizance of any offence upon a police report of such facts. The Code has prescribed the modes of taking the cognizance by the Courts competent to try the same. Taking of cognizance of an offence is necessary requirement before initiation of further proceedings can be contemplated. The Court taking cognizance of any offence is required to apply its judicial mind to the facts placed before it either upon a police report, as is the instant case, or upon a complaint or in some other manner the Court came to know about it and in the case of Court of Session upon commitment of the case by the Magistrate unless bar of Section 193, Cr. P.C. does come in the way.
25. The Magistrate, in a case in which police files a report under Section 170/173, Cr. P.C. against certain accused-persons, so competent to either try or commit the case, in the first instance, on perusal of the documents and material submitted in support of the police report, proceeds to find out whether any prima facie case is made out and, in case it is so, he takes cognizance of the offence(s), in the first instance, and then next question to which he is required to apply his mind is as to who actually the offenders are and, in case they are not before the Court and they have been left out by the police even after a prima facie case of their involvement in the commission of the offences of which cognizance is being taken by the Magistrate, have been left out, the Magistrate is fully competent to take cognizance of such offences against the persons who have not been arraigned as accused along with the persons against whom the charge-sheet has been filed in the Court.
26. In Hareram Satpathy v. Tikaram Agarwala (1978) 4 SCC 58 : 1978 Cri LJ 1687, the Hon'ble Apex Court, while determining the ques-tion as to whether, after submission of final report by the police stating therein that there was no sufficient evidence to justify the forwarding of the respondents to him, it was open to the Magistrate to add the respondents as accused in the case and issue process against them, while answering the question affirmatively, relied on the decisions rendered in Raghubans Dubey v. State of Bihar (1967) 2 SCR 423 : 1967 Cri LJ 1081, Smt. Nagawwa v. VeerannaShivalingappa Konjalgi 1976 Supp SCR 123 : 1976 Cri LJ 1533, and Chandra Deo Singh v. Prakash Chandra Bose (1964) 1 SCR 639 : 1963 (2) Cri LJ 397, in which it has been, on the basis of long catena of decisions of the Hon'ble Apex Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied, held that cognizance is first taken by the Magistrate of an offence and once cognizance of any offence is taken then the duty of the Magistrate arises to find out who the real offenders are and once he comes to the conclusion that apart from the persons set up by the police some other persons are also involved, it is his duty to proceed against those persons. The summoning of the aforesaid accused is part of the proceedings initiated by his taking cognizance of cences. Paras Nos. 7 and 8 of the decision rendered in Hareram Satpathy's case 1978 Cri LJ 1687 (SC) (supra), being directly relevant, may be quoted as below :
7. From the foregoing it is crystal clear that under Section 190 of the Code of Criminal Procedure the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence.
8. In the instant case, the 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.
27. In Kishun Singh v. State of Bihar (1993) 2 SCC 16 : 1993 Cri LJ 1700, while discussing the nature and scope of provisions of Sections 319, 173, 190(1)(b), 156(3), 204 and 209, Cr. P.C. the Hon'ble Judges constituting the Division Bench, posed a question as to whether dehors Section 319 of the Code (Cr. P.C.) can similar power be traced to any other provision in the Code or can such power be implied from the scheme of the Code, observed in para No. 13 of the decision which runs as under:
13. The question then is whether dehors Section 319 of the Code, can similar power to be traced to any other provision in the Code or can such power be implied from the scheme of the Code? We have already pointed out earlier the two alternative modes in which the Criminal Law can be set in motion; by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may culminate in a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190(1)(b) of the Code. In the latter case, the Magistrate may either order investigation by the police under Section 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190(1)(a) or (c), as the case may be, read with Section 204 of the Code. Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under Section 191 or commit him for trial under Section 209 of the Code if the offence is triable exclusively by a Court of Session As pointed out earlier cognizance is taken of the offence and not the offender. This Court in Raghubans Dubey v. State of Bihar (1967) 2 SCR 423 : 1967 Cri LJ 1081 stated that once cognizance of an offence is taken it becomes the Court's duty 'to find out who the offenders really are' and if the Court finds 'that apart from the persons sent up by the police some other persons are involved, it is its duty to proceed against those persons' by summoning them because 'the summoning of the additional accused is part of the proceeding initiated by its taking cognizance of an offence.' Even after the present Code came into force, the legal position has not undergone a change; on the contrary the ratio of Dubey case (supra) was affirmed in Hareram Satpathy v. Tikaram Agarwala (1978) 4 SCC 58 : 1978 Cri LJ 1687. Thus far there is no difficulty.
28. It was further observed by the Hon'ble Apex Court that after application of mind for the purpose of taking cognizance of any offence for the limited purpose, in case the Court finds that besides the accused arraigned before him the complicity or involvement of others in the commission of the crime prima facie surfaces from the material placed before him, what course of action should he adopt and, consequently, it was further held that, as already indicated earlier from the ratio of the Apex Court's decisions in the cases of Raghubans Dubey 1967 Cri LJ 1081 and Hareram Sathpaihy 1978 Cri LJ 1687 (supra) that once the Court takes cognizance of the offence (not offender) it becomes the Court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the Court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance. In the case of Kishun Singh 1993 Cri LJ 1700 (SC) (supra), while considering the nature and scope of Sections 193 and 209, Cr. P.C. in regard to taking cognizance of offence against any other person who was left out from the array of the accused-persons in the police report, it was further observed that, on plain reading of Section 193, as it resently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record, and, accordingly, the order of the learned Sessions Judge, in exercise of powers vesting under Sections 193 and 209, Cr. P.C. to summon additional/new persons, whose involvement in the commission of the crime prima facie appeared from the record of the case independent of provisions of Section 319, Cr. P.C.
29. Resultantly, so far as the facts of the case in hand are concerned, admittedly, the police did not proceed to file charge-sheet against the accused-petitioner though he was named in the first information lodged by his own father and his involvement in commission of the offences prima facie is evidenced from the material and documents filed by the police along with the police report before the Addl. Chief Judicial Magistrate, who was competent to have taken cognizance of offences including that of commission of murder, as he had already done and once he took cognizance of offences as borne out of the material and documents available for application of judicial mind to prima facie find out the offences committed, as a part of same process of taking cognizance of offences, simultaneously, either in the first instance or before the offender, as appearing from the material under consideration, in case it is found that some persons against whom there is prima facie evidence of their involvement or aforesaid commission of the of-fences of which cognizance has been so taken by the Magistrate, have been left out from the array of the accused-persons in the police report, the Magistrate is legally bound to find out such accused persons before he proceeds to commit the case to the Court of Session for regular trial according to law and, for this very purpose, he is legally empowered and is under legal obligation to issue process against the persons who have been so left out from the array of accused-persons in the police report so as to appear or to be produced before him so as to forward them to the Court of Session to stand trial for commission of the offences of which cognizance has been taken by the Magistrate in addition to those offences of which subsequentcognizance is additionally taken by the Court of Session, if any.
30. On the basis of aforesaid discussion, there is hardly any substance in the contention or objection from the side of the accused-petitioner that the learned Addl. Chief Judicial Magistrate was not competent to have taken cognizance of such offences against those persons who were left out from the charge-sheet filed by the police in addition to those who were r.a '. dS uflciidcrs in the charge-sheet itself before the case is committed to the Court of Session and that, it is the Court of Session alone which can in exercise of its power under Section 319, Cr. P.C. alone can take cognizance of such offences.
31. On the basis of this discussion, since the decision of the Hon'ble Apex Court rendered in Raj Kishore Singh's case 1996 Cri LJ 2523 (supra) does not lay down any contrary ratio nor there was any challenge to the nature and scope of the power of the Magistrate under Section 190(1)(b) directly and hence the conclusion so arrived at does not run counter to the ratio of this decision in view of the consistent and authoritative interpretation of law of taking cognizance of an offence by a Magistrate and, consequently, his power and competence of summoning any additional person left out in the police report/charge- sheet to be tried or committed to the Court of Session, as the case be, even in the exercise of finding out as to who are found to be prima facie offenders of the offences of which cognizance is taker and ordering for their production/summoning is par! of the proceedings of taking cognizance itself and the law never envisaged nor could there be any conceivable purpose behind the argument that even in the aforesaid circumstances, no summoning/arraying of additional person found to be offender is permissible.
32. On the basis of aforesaid legal as well as factual aspect of the matter, presently, there is neither any illegality nor irregularity vitiating the impugned order of taking cognizance of alleged offences against the accused-petitioner as well by the learned Addl. Chief Judicial Magistrate and hence the impugned order cannot be held to be without jurisdiction warranting its quashing or being set aside.
33. Resultantly, this petition is wholly devoid of any merit and deserves its dismissal.
34. Lastly, in the alternative, the learned counsel for the petitioner relying on a decision rendered in Sukhvinder Singh v. The State of Rajasthan 1993 Cri LR (Raj) 822, has submitted that since as a result of investigation two versions have come forward in regard to either involvement or otherwise of the accused-petitioner in commission of the aforesaid offences and hence it is just and proper that the trial Court be directed to summon the accused-petitioner to face the trial by issuance on a bailable warrant instead of a warrant of rest as ordered in the impugned order. The accused-petitioner prima facie appears to be involved in commission of offence of murder of Surendra Kumar and, besides, the learned P.P., while furnishing copy of order dated 24-11-97 passed in S.B. Cr. Bail Petn. No. 2562/97, submitted that the petition for grant of anticipatory bail moved by the accused-petitioner already stood dismissed by this Court and there is no warrant for still ordering for issuance of a bailable warrant instead of a warrant of arrest nor there is any mitigating circumstance for exercise of such a discretion by this Court in favour of the accused-petitioner. The objection of the learned P.P. is well merited and there is no justification for any deviation specially in view of the fact that the prayer of the accused-petitioner for grant of anticipatory bail has already been dismissed previously.
35. Consequently, this petition is hereby dismissed and the impugned order stands affirmed and so this petition along with its connected stay petition stands disposed of accordingly.