Allahabad High Court
Farman And 2 Others vs State Of U.P. And Another on 7 November, 2019
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 93 Case :- APPLICATION U/S 482 No. - 38681 of 2019 Applicant :- Farman And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar, Abhishek Narayan Pandey, Rajiv Lochan Shukla Counsel for Opposite Party :- G.A. Hon'ble Ajit Singh,J.
Heard Sri Rajiv Lochan Shukla, learned counsel for the applicants, Sri Ravi Prakash Pandey, learned AGA for the State and perused the material available on record.
The present application under Section 482 Cr.P.C. has been filed by the applicants for quashing the impugned order dated 18.09.2019 passed by Additional Sessions Judge, Court No.10, Meerut in S.T. No.447 of 2018 and 912 of 2018 (State of U.P. vs. Ikram and Ors.), under Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 IPC, Police Station Parichitgarh, District Meerut.
The first information report of this incident was lodged by the complainant against 13 named accused-persons. It was alleged in the FIR that brother of the complainant was done to death by the accused-persons and later on 'Behnoi'-Kamrul of the complainant Muzassim was also done to death by the accused-persons and Kamrul and Muzassim had died on the spot and the complainant and his brother Sadrul, Fahim, Kadim, Javed and Salim had also received injuries. The matter was investigated and the police had submitted charge sheet on 29.03.2018 against eight persons and against five accused-persons, the investigation was in progress. Later on second charge sheet was submitted on 23.06.2018 against two persons, namely Iftedar and Jisaan. The cognizance of the offence on the basis of papers submitted by the police was taken by the Sessions Court on 31.08.2018 and later on charges were framed. After framing of charge, an application was moved from the prosecution side under Section 193 Cr.P.C. and in the application it was mentioned that the complainant filed FIR against 13 named persons and eight persons were chargesheeted, later on, two persons were also chargesheeted and cognizance was taken by the trial court against all ten persons and it was mentioned in that application the police had not submitted any report under Section 173(2) Cr.P.C. against three accused-persons, namely Farman, Hussain and Rameej and three years have passed and the police has not submitted any charge sheet against the accused-persons, namely Farman, Hussain and Rameej and it was prayed in that application that three accused, namely Farman, Hussain and Rameej be arrayed as an accused under Section 193 Cr.P.C. and this application was disposed of by the trial court vide impugned order dated 18.09.2019 and by the said impugned order, the application given by the prosecution under Section 193 Cr.P.C. was accepted and the accused Farman, Hussain and Rameej were summoned for trial under Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 IPC.
Aggrieved by this order, the present application under Section 482 Cr.P.C. has been filed by the accused-persons with a prayer for quashing the impugned order.
It has been submitted by the learned counsel appearing on behalf of the applicants that the impugned order passed by the trial court is against the law and when the Sessions court has taken cognizance under Section 193 Cr.P.C. earlier on 31.08.2018, then it was not within the scope of the trial court to again take cognizance of the present accused-applicants on the basis of police papers submitted by the police. It has been further submitted that when the trial was in progress, the evidence of PW-1 was recorded on 20.09.2018, then the application under Section 193 Cr.P.C. is not legally maintainable, as it was beyond the scope of the trial judge to summon the accused-applicants under Section 193 Cr.P.C. It is also submitted that when the trial has progressed, then the court can summon the accused-persons, who were not arrayed as accused in the charge sheet or against whom charge has not been framed only under Section 319 Cr.P.C. after considering the evidence during trial.
Learned counsel for the applicants has relied on the judgment of Hon'ble Supreme Court in the case of Dharm Pal & Ors. Vs. State of Haryana & Ors. reported in 2014 3 SCC 306, Hardeep Singh Vs. State of Punjab & Ors. reported in 2014 3 SCC 92 and in the case of Y. Saraba Reddy Vs. Puthur Rami Reddy & Anr. reported in 2007 4 SCC 773.
Sri Ravi Prakash Pandey, learned AGA has vehemently opposed the arguments advanced by learned counsel for the applicants and submitted that the impugned order passed by the learned trial judge under Section 193 Cr.P.C. is a perfect order and no interference is legally required in that impugned order as it was well within the scope of the learned trial judge to array some other persons as an accused in the trial.
This Court would like to refer to the provisions of Sections 190 and 193 Cr.P.C. of the Code, which has come into play in the instant case for the proper understanding thereof, as it shall provide categorical answer to the issue in hand and will help this Court in tracing the underlying legal principle laid down in the present case.
"Section 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence ---
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the Second Class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
Section 193. Cognizance of offences by courts of Session.--- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
Sections 190 and 193 of the Code are in Chapter XIV. This Chapter contains the title "Conditions requisite for initiation of proceedings". Section 190 deals with cognizance of offence by Magistrates. It empowers any Magistrate of the First Class, and any Magistrate of the Second Class which are specially empowered to take cognizance "of any offence" under three circumstances mentioned therein. These three circumstances include taking of cognizance upon a police report of such facts which may constitute an offence. It is trite law that even when police report is filed stating that no offence is made out, the Magistrate can ignore the conclusion arrived at by the investigating officer and is competent to apply its independent mind to the facts emerging from the investigation and take cognizance of the case if it thinks that the facts emerging from the investigation do lead to prima facie view that commission of an offence is made out. In such a situation, the Magistrate is not bound to follow the procedure laid down in sections 200 and 202 of the Code for taking cognizance of the case under Section 190(1)(a) though it is open for him to act under Section 200 or Section 202 as well as held in the case of Minu Kumari Vs. State of Bihar, reported in (2006) 4 SCC, 359. Thus, when a complaint is received by the Magistrate under Section 190(1)(a) of the Code, the Magistrate is empowered to resort to procedure laid down in Section 200 or 202 of the Code and then take cognizance. If police report is filed he would take cognizance upon such a report, as provided under Section 190(1)(b) of the Code in the manner mentioned above as highlighted in the case of Minu Kumari (Supra).
Likewise, Section 193 of the Code empowers the Court of Session to take cognizance of offences and states that the Court of Session shall not take cognizance of any offence as the court of original jurisdiction unless the case has been committed to it by the Magistrate under this Code. As per this section, the Court of Session can take cognizance only after the case has been committed to it by the Magistrate, However, once the case is committed to it by the Magistrate, the Court of Session is empowered to take cognizance acting "as a court of original jurisdiction".
In view of the aforesaid provisions, the question that arises is as to whether the Magistrate can take cognizance of an offence which is triable by the Court of Session or he is to simply commit the case to the Court of Session, after completion of committal proceedings as it is the Court of Session which is competent to try such cases. On the one hand, Section 190 of the Code empowers the Magistrate to "take cognizance of any offence" which gives an impression that such Magistrate can take cognizance even of an offence which is triable by the Court of Session. On the other hand, when the case if committed to the Court of Session by the Magistrate, Section 193 of the Code stipulates that the Court of Session shall take cognizance "as a court of original jurisdiction" which shows that the cognizance is taken by the Court of Session as a court of original jurisdiction and, thus, it is the first time the cognizance is taken and any order passed by the Magistrate while committing the case to the Court of Session did not amount to taking cognizance of the offence which is triable by the Court of Session.
A bare reading of Section 190 of the Code which uses the expression "any offence" amply shows that no restriction is imposed on the Magistrate that the Magistrate can take cognizance only for the offence triable by the Magistrate Court and not in respect of the offence triable by a Court of Session. Thus, he has the power to take cognizance of an offence which is triable by the Court of Session. If it is so, the question is as to what meaning is to be assigned to the words "as a court of original jurisdiction" occurring in Section 193 of the Code when the Court of Session takes cognizance of any offence. To put it otherwise, when the Magistrate has taken cognizance and thereafter only committed the case to the Court of Session, whether the Court of Session is not empowered to take cognizance of an offence again under Section 193 of the Code or it still has power to take cognizance acting as court of original jurisdiction. In order to find the answer, it is necessary to have a look on the decision of the Apex Court in the case of Dharam Pal Vs. State of Haryana, reported in (2014) 3 SCC., 306.
In the case of Dharam Pal Vs. State of Haryana (Supra), an F.I.R. was registered against one N and the appellants for the commission of offences under Sections 307 and 323 read with Section 34 I.P.C. The police after investigation submitted its report under Section 173(2) of the Code before the Magistrate sending only N for trial while including the names of the appellants in Column 2 of the report. On receipt of such police report, the Magistrate did not, straightaway, commit the case to the Sessions Court but, on an objection being raised by the complainant, issued summons to the appellants therein to face trial with the other accused N as the Magistrate was convinced that a prima facie case to go for trial had been made out against the appellants as well. Further, while doing so, the Magistrate did not hold any further inquiry, as contemplated under Sections 190, 200 or even 202 of the Code, but proceeded to issue summons on the basis of the police report only. In this background, the following questions arose for the consideration by the Constitution Bench. (SCC p.312, para 7).
"7.1 Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on findings 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 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 Cr.P.C. 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 Vs. State of Punjab, reported in the case of (1998) 7 SCC, 149, which set aside the decision in the case of Kishun Singh Vs. State of Bihar, reported in (1993) 2 SCC, 16, rightly decided or not ?' Answering the reference, the Constitution Bench in the case of Dharam Pal Vs. State of Haryana (Supra), held that :
"The Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under section 173(2) of the Code 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) of the Code. 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 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 summon under Section 193 of the Code upon the case being committed to him by the Magistrate. Section 193 speaks of cognizance of offences by the Court of Session. The key words in the section are that (Dharam Pal Dharam Pal Vs. State of Haryana (Supra) (SCC p.319, para 38).
"38................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 entails that a case must, first of all 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 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 by 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 of Kishun Singh Vs. State of Bihar, reported in (1993) 2 SCC, 16 (SCC p.320, para 40) the Sessions Court has jurisdiction on committal of a case to it, to take 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."
In this view of the matter Hon'ble Apex Court in the case of Balveer Singh Vs. State of Rajasthan, reported in (2016) 6 SCC, 680, held as under :
"In that view of the matter, we have no hesitation in agreeing with the views expressed n Kishun Singh Vs. State of Bihar (Supra) that the Sessions Court has jurisdiction on committal of a case to it, to take 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. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in Column 2 of the police report to stand trial along with those already named therein."
It is well settled position of law that cognizance of an offence can only be taken once and if once the cognizance of the offence has been taken in the present case by the Sessions Court after committal of the case to the Sessions Court and the Sessions Court had charged the accused and the trial of the accused has commenced then again the Sessions Court will not be able to go back and to take further cognizance of the case again under Section 193 Cr.P.C.
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 impugned order dated 18.09.2019 passed by Additional Sessions Judge, Court No.10, Meerut in S.T. No.447 of 2018 and 912 of 2018 (State of U.P. Vs. Ikram and Ors.), under Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 IPC, Police Station Parichitgarh, District Meerut, is hereby quashed with the direction that since the trial has proceeded and is at an advanced stage as the prosecution has examined the prosecution witness of the trial and if the trial court considers after evaluating the evidence before it, which has come during trial then the trial court may proceed against the persons, who appears to be guilty of the commission of offence with the aid of Section 319 Cr.P.C.
Order Date :- 7.11.2019 R./Ravi Kant