Rajasthan High Court - Jodhpur
Smt.Sarla Devi vs State & Anr on 6 April, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
S.B, Criminal Misc. Petition No. 1348/2010
(Smt. Sarla Devi Vs. State of Rajasthan & Anr.)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
ORDER
Smt. Sarla Devi. Versus State of Rajasthan
& Anr.
S.B. Criminal Miscellaneous Petition No. 1348/2010
...
Date of Order: April 6, 2012
PRESENT
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr. Mahaveer Bishnoi, for the petitioner.
Mr. K.K. Rawal, Public Prosecutor for the State.
Mr. D.K. Gaur, for the respondent No.2.
BY THE COURT:
Reportable The instant miscellaneous petition has been filed by the petitioner challenging the order dated 06.8.2010 passed by the learned Sessions Judge No.2, Bikaner in Criminal Revision No. 90/2009, whereby he has affirmed the order dated 22.4.2009 passed by the learned Judicial Magistrate, First Class, Nokha, district Bikaner taking cognizance against the petitioner and summoning her as an additional accused to stand trial with the charge-sheeted accused for the offence under Section 302/34 IPC.
Succinctly stated, the facts of the case are that the complainant-respondent No.2 filed an FIR No. 75/2009 at the Police Station, Nokha against Shyam Sunder and the petitioner Smt. Sarla Devi for the offences under Section 302 and 302/34 IPC. The allegation in the FIR was that while the complainant, his brothers Babu Lal, Paan Mal and Ram Swaroop, were going towards their house from the house of the Sarpanch Smt. Shanti Devi, at that time the accused Shyam Sunder and Sarla Devi accosted them. Both were armed with Lathis in their hands. The accused Shyam Sunder shouted that the enemies should be done away and then gave a blow on the head of Babu Lal by the S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 2 Lathi, due to which he fell down. Petitioner Smt. Sarla was also making an extortion for killing the enemies. After the assault, the accused persons ran back to their house. The first informant and Paan Mal, seeing the serious condition of Babu Lal, arranged for taking him to the P.B.M. Hospital, Bikaner in an Ambulance but he expired on the way to the hospital. It was alleged that as a result of the assault made by the accused Shyam Sunder and the petitioner Smt. Sarla, Babu Lal received injuries, due to which he expired.
On the post-mortem of the body of the deceased being conducted, two injuries caused by blunt weapon were found existing on his head and the cause of death of was opined to be ante-mortem head injury. The police, on completion of the investigation, proceeded to file a charge-sheet only against the accused Shyam Sunder for the offence under Section 302 IPC and chose not to charge-sheet the petitioner.
The complainant, on filing of the charge-sheet, as stated above, filed an application under Section 190 Cr.P.C. seeking taking of cognizance and summoning the petitioner for the offence under Section 302/34 IPC. The learned trial Court, by the order dated 22.4.2009, accepted the application filed by the complainant under Section 190 Cr.P.C. proceeded to summon the petitioner as an additional accused in this case whilst accepting the application filed by the complainant under Section 190 Cr.P.C. The petitioner challenged the order of the learned trial Court by filing a revision petition, which too has been rejected, as stated above. Now the petitioner has approached this court by way of the instant miscellaneous petition challenging the orders of the learned courts below and praying for quashing the order summoning her as an additional accused in this case.
Learned counsel for the petitioner, relying on a decision of the Hon'ble Apex Court in the case of Jile Singh Vs. State of U.P. & Anr., reported in 2012 (1) SCALE 452, has submitted that the learned Magistrate, on filing of a partial negative report by the police in relation to the FIR, has no power S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 3 to summon the non-charge-sheeted person as an an additional accused and that an additional accused can only be been summoned after evidence being recorded at the trial. He submitted that power of summoning additional accused is only provided under Section 319 Cr.P.C. Resultantly, it has been prayed that the impugned order summoning the petitioner as additional accused in the case deserves to be quashed.
Per contra, learned counsel for the respondent submits that in this case the learned Magistrate has exercised the powers of summoning the additional accused at the initial stage, i.e. just when the charge-sheet had been filed and the case had not been committed to the court of Sessions. He submits that the powers under Section 190 Cr.P.C. read with Section 204 Cr.P.C. are very much available to the learned Magistrate at that stage because the intention of the Legislature is not that the Magistrate is bound to accept the report of the investigation as filed by police officer. He submits that the discretion of the court to take cognizance of the offence and to summon the offenders who are responsible for commission of the offence, cannot be governed or controlled by the opinion expressed by a police officer in the charge-sheet. He, therefore, prays that there is no reason to interfere in the order of the learned Magistrate summoning the petitioner as an additional accused in this case as affirmed in revision.
Learned Public Prosecutor has also supported the order of the learned Magistrate.
Having considered the arguments advanced at the bar and after having gone through the impugned orders, this Court feels that a proper consideration and appreciation of the legal situation in this regard has to be made for deciding the controversy raised by way of the instant miscellaneous petition.
The Hon'ble Apex Court, in the case of Jile Singh Vs. State of U.P. & Anr. (supra), placed reliance on the earlier decisions rendered by the Hon'ble Apex Court in the cases of Raj Kishore Prasad Vs. State, (1996) 4 SCC 495 and Kishori Singh & ors. Vs. State of Bihar & Anr., (2004) 13 SCC 11, S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 4 and held that the Magistrate has no power to entertain a complaint against certain other accused, once in relation to the same incident, other accused were already charge-sheeted and committed for trial under Section 209 Cr.P.C. The view taken by the Hon'ble Apex Court in the cases of Raj Kishore Prasad and Kishori Singh (supra), which have been relied upon in the case of Jile Singh, stands referred to a Larger Bench for examining the question regarding the powers of a Magistrate to summon the additional accused in the event of police not filing a charge-sheet against such person(s).
In the interim, while the reference to the Larger Bench is still pending, the Hon'ble Apex Court, in the case of Uma Shanker Singh Vs. state of Bihar & Anr., (2010) 9 SCC 479, had the occasion of considering the powers available to the Magistrate as regards the summoning of additional accused against whom the police chose not to file a charge- sheet. After consideration of the fact regarding the reference before the Larger Bench not having been answered, the Hon'ble Apex Court considered the scope of these powers in detail and held that there is no restriction on the powers of the Magistrate as per Section 190 Cr.P.C. and the Magistrate can very well summon an additional accused, against whom the police had not filed a charge-sheet. The Court observed as below:-
11. Mr. Mishra submitted that the views expressed in Ranjit Singh's case (supra) were contrary to those expressed by this Court in the case of Kishun Singh and Ors. v. State of Bihar MANU/SC/0460/1993 : (1993) 2 SCC 16, where, although, 20 persons had been named in the F.I.R., the Magistrate had committed 18 to the Court of Session under Section 209 Cr.P.C.
to stand trial. On an application made under Section 319 Cr.P.C. indicating the involvement of the other two accused as well, a prayer was made that they should also be summoned and S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 5 arraigned before the court as accused persons along with the 18 other accused already named in the charge-sheet. Despite objections raised on behalf of the said two persons, the Sessions Judge, in exercise of his discretion, added the said persons as accused along with the 18 others. The criminal revision preferred from the order of the learned Sessions Judge was dismissed by the High Court. This Court while granting special leave held that although the stage of Section 319 had not been reached, on the materials available, the Sessions Judge was within his jurisdiction in taking cognizance against the said two persons under Section 193 of the Code.
12. The same question once again fell for consideration in Kishori Singh and Ors. v. State of Bihar and Anr. (2004 (13) SCC 11, where the decision rendered by this Court in Ranjit Singh's case (supra) was followed, although, another decision in the case of India Carat Pvt. Ltd. v.
State of Karnataka and Anr.
MANU/SC/0349/1989 : (1989) 2 SCC 132, was also cited wherein another Bench of three Judges of this Court had held that despite the police report that no case had been made out against the accused, the Magistrate can take cognizance of the offence under Section 190(1)
(b), taking into account the statement of witnesses made under police investigation and issue process.
13. Ultimately, the case of Dharampal and Ors. v. State of Haryana and Anr. (2004) 13 SCC 9, came up for consideration before a Bench of two S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 6 Judges when on account of the different views expressed by different Benches of this Court, the case was directed to be heard by a three Judge Bench. After considering the various decisions in connection with the said issue, the three Judge Bench observed that prima facie it did not think that the interpretation reached in Ranjit Singh's case (supra) was correct and that the law was clearly enunciated in Kishun Singh's case (supra). Further, having regard to the fact that the decision in Ranjit Singh's case (supra) was a three-Judge Bench, the learned Judges directed that the matter be placed before the Hon'ble the Chief Justice of India for placing the matter before a larger Bench.
14. Mr. Nagendra Rai, learned Senior Advocate appearing for some of the respondents, on the other hand, submitted that the question referred to the larger Bench in Dharampal's case (supra) is not really material for a decision in this case where the fact situation was different. Mr. Rai urged that the law was well-settled that the Magistrate was not bound to accept the Final Report filed by the investigating authorities under Section 173(2) Cr. P.C. and was entitled to issue process against an accused even though exonerated by the said authorities, without holding any separate enquiry, on the basis of the Police Report itself.
15. There is substance in Mr. Rai's submission that for a decision in the facts of the case, it is not necessary to wait for the outcome of the result of the reference made to a larger Bench in Dharampal's case. The reference is with regard S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 7 to the Magistrate's power of enquiry if he disagreed with the Final Report submitted by the investigating authorities. The facts of this case are different and are covered by the decision of this Court in the case of India Carat Pvt. Ltd.
(supra) following the line of cases from
Abhinandan Jha v. Dinesh Mishra
MANU/SC/0054/1967 : (1967) 3 SCR 668
onwards. The law is well-settled that even if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers under Section 190(1)(b) Cr.P.C.
16. That is precisely what has happened in the present case. In the instant case the investigation had been handed over to the C.I.D. and both the C.I.D. and the local police had submitted their reports in final form exonerating the petitioner of the allegations made against him in the F.I.R. However, the Chief Judicial Magistrate, Siwan, took cognizance of the offence under Section 302/379 IPC and Section 27 of the Arms Act against the petitioner. This is not a case where the Magistrate took recourse to any further inquiry but took cognizance on the police report itself, which he was entitled to do under Section 190 (1)(b) Cr.P.C.
This Court is also of the opinion that if the view is taken and accepted that the Magistrate has no power to take cognizance and summon the non-charge-sheeted accused then a very grave situation could arise. Subscribing to this view would S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 8 indirectly amount to defeating and setting at naught the discretionary powers given to the Magistrate in dealing with an application filed by the police under Section 169 Cr.P.C. for seeking discharging a person who was earlier arrested in the case. If it is held that the Magistrate has no power to summon and add the non-charge-sheeted accused persons for facing trial, the resultant situation would mean that the Magistrate looses to have any discretion regarding the release application filed under section 169 Cr.P.C. and would be bound to accept the same. In the opinion of this Court, this could not have been the intention of the Legislature. Subscribing to this view would indirectly amount to defeating and setting at naught the discretion given to a Magistrate while dealing with the application filed by the police under Section 169 Cr.P.C. seeking release of an accused. Section 169 Cr.P.C. reads as below:-
"169. Release of accused when evidence deficient.- If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial."
This situation would arise when the police files an application under Section 169 Cr.P.C. regarding the accused who has been arrested by it in a case involving offences triable by the Court of Sessions. The question which this Court has to pose to itself is that does the Magistrate has any discretion to refuse such an application and is bound to accept the same. If it is held that that the Magistrate has no power to summon the additional accused who has not been charge-sheeted by the police then S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 9 the necessary consequence of such a view would be that the Magistrate would be bound by the application filed by the police under Section 169 Cr.P.C.: that is to say that the police would be at liberty to arrest an accused in a case involving offences triable by the Court of Sessions and then release him as per Section 169 Cr.P.C. on executing personal bond and then decide not to file a charge-sheet regarding such accused. The Magistrate would be left to watch helplessly as a by-stander in relation to this conclusion of the police. This is obviously not the intention of the Legislature.
There is no restriction upon the powers of the Magistrate under section 190 read with section 204 Cr.P.C. to summon the non-charge-sheeted offenders who prima facie appear responsible for having committed the offences before the case is committed for trial. Reading in any restraint upon these powers would amount to imposing a restriction on the powers of the Magistrate, which does not exist in the enabling Section, i.e. Section 190 (1) (b) of the Code of Criminal Procedure.
Once the Magistrate takes cognizance of an offence under Section 190 (i) (b) Cr.P.C., thereafter as per Section 204 (1) (b) Cr.P.C., he has to summon or issue a warrant for causing the accused to be brought before or to appear before such Magistrate or some other Magistrate having jurisdiction. Resultantly, in the opinion of this Court, until and unless the reference made to the Larger Bench on this issue is decided, the view expressed by the Hon'ble Apex Court in the case of Uma Shanker Singh (supra) appeals more to conscience In the said case, the Hon'ble Supreme Court in distinct terms held that the court need not wait till the stage of Section 319 Cr.P.C. for summoning an additional accused.
The facts of the case in the matter of Jile Singh (supra) are otherwise also distinguishable from the case at hand because in that case the Magistrate summoned the accused in a complaint. The complaint was filed subsequent to the charge-sheet in relation to the FIR earlier lodged for the same S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 10 incident had already been submitted by the police and the charge-sheeted accused had already been committed to the Court of Sessions for trial. Thus, the facts of the case in Jile Singh are entirely distinguishable from the facts of the case in hand. In the instant case, right from the inception, i.e. at the stage when the charge-sheet was just filed, the learned Magistrate, on the basis of the application under Section 190 Cr.P.C. {filed before committal of the case to the Court of the Sessions}, proceeded to take cognizance and summon the petitioner as an additional accused in this case. Thus, the decision of the Hon'ble Apex Court in the case of Jile Singh does not help the petitioner in any manner.
The upshot of the above discussion is that challenge by way of the instant miscellaneous petition seeking quashing of the Magistrate's order dated 22.4.2009 summoning the petitioner as an additional accused is not acceptable. However, before parting, it may be observed that the order of the learned Magistrate reveals that has not expressed the mode of summoning the petitioner in this case.
Subsequently, a report has been received from the learned trial Court, as per which warrants of arrest have been issued against petitioner Smt. Sarla Devi. This Court feels that the allegation of the prosecution in this case against the petitioner is limited to the extent of exhortation. In the FIR, as well as in the statements of Ram Swaroop, Paan Mal and Budh Ram, a specific allegation regarding infliction of injury on the head of the deceased has been made against co-accused Shyam Sunder. Resultantly, the ends of justice shall be met by directing that the petitioner should be summoned in this case by issuing a bailable warrant in the sum of Rs.40,000/-.
Resultantly, the miscellaneous petition, challenging the orders so far as summoning the petitioner as an additional accused is concerned, fails and the same is rejected. But it is hereby directed that the petitioner shall, now, be summoned by issuing a bailable warrant in the sum of Rs.40,000/-. The petitioner should appear before the learned trial Court within a S.B, Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) 11 period of five weeks from today and furnish bail bonds to the satisfaction of the learned Magistrate; failing which the order directing conversion of the warrants of arrest into bailable warrant shall stand vacated. The stay petition also stands rejected.
(SANDEEP MEHTA), J.
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