Rajasthan High Court - Jaipur
Natthi Singh vs State Of Rajasthan And Anr. on 22 September, 2006
Equivalent citations: 2007CRILJ254, RLW2007(1)RAJ187
ORDER Shiv Kumar Sharma, J.
1. In a case exclusively triable by the Court of Session, learned Judicial Magistrate Weir, on a protest petition filed by the complainant against one of the co-accused (not charge-sheeted), took cognizance of the offence under Sections 307, 323 and 341, I. P. C. The order of learned Magistrate was set aside by the revisional Court on the ground that the Magistrate has no Jurisdiction to take cognizance of offence since the case was exclusively triable by the Court of Session. It is against this order that the instant revision petition has been filed by the complainant.
2. Contextual facts depict that on the basis of FIR lodged by the complainant Nathi Singh, the petitioner herein, the Police Station Bhusawar filed charge-sheet under Sections 147, 323, 341 and 307,1. P. C. in the Court of Judicial Magistrate, Weir against accused Radhey Shyam, Subhash, Devi Singh and Hari Singh. Co-accused Khem Chand Meena, who was also named in the FIR, was not found involved and excluded. The complainant therefore filed protest petition before the learned Magistrate and made request to take cognizance against co-accused Khem Chand Meena. Learned Magistrate accepted the protest petition vide order dated July 16, 2002 and took cognizance against Khem Chand Meena under Sections 323, 341 and 307, I. P. C. This order was however set aside on revision by learned Additional Sessions Judge No. 2 Bayana vide order dated February 22, 2004. The said order has now been called in question by the complainant.
3. Mr. N.K. Singhal, learned Counsel for the complainant took me through Section 190, Cr. P. C. and vehemently urged that the order of revisional Court is not sustainable in view of the ratio indicated in Rajinder Prasad v. Bashir . Reliance is also placed on Reghubans Dubey v. State of Bihar . I have given my anxious consideration to the contention advanced before me and weighed the material on record as well as the relevant statutory provisions and case law on the subject.
4. The question that arises for consideration is as to whether a Magistrate undertaking commitment under Section 209, Cr. P. C. of a case triable exclusively by a Court of Session, can associate another person (who is not charge-sheeted) as accused?
5. Section 209, Cr. P. C. relates to the cases triable exclusively by a Court of Session. Origin of Section 209 may be traced in 41st Report of the Law Commission which reads thus:
17.11. Where a case (whether instituted on a police report or on complaint) relates to an offence triable by the Court of Session, the Magistrate has to send up the case to the Court of Session. Since an inquiry by the Magistrate is not contemplated in the scheme which we propose in regard to such offence, the provisions in this respect can take a simple form and can be placed in this chapter as forming part of the commencement of proceedings before Magistrate. It will be convenient to refer to this process as "commitment of the case to the Court of Sessions." Although the procedure is radically different from the commitment proceedings at present provided in chapter 18.
At this juncture amendment introduced in the years 1970 and 1978 may also be noticed which is as under:
Clause 214 (Section 209) - "Preliminary inquiries by Magistrate in cases exclusively triable by the Court of Session are being dispensed with as such an inquiry has served no useful purpose and on the contrary, it involves a great deal of infructuous work causing delay in the trial of sessions cases. The abbreviated form of Inquiry provided for the amendments made in 1955 and contained in Section 207A has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, created fresh problems. Preliminary inquiries are, therefore, being dispensed with in cases triable by a Court of Session. However to perform certain preliminary functions like granting copies, preparing the records, notifying the Public Prosecutor etc, provision is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the Court of Session. As regards private complaints in cases triable exclusively by a Court of Session the Inquiry into the complaint by the Magistrate under the existing Section 202 will serve the purpose of preliminary scrutiny." S. O. R. Gaz. of India 10-12-1970 Pt. II. Section 2. Extra. p. 1309 (1320).
(Emphasis supplied) Clause 19 - Clause (a) of Section 209 is being replaced by a new clause which clarifies that the commitment is to be made after complying with the provisions of Section 207 or 208 and that the committing Court will also have the power to make an order for remand of the accused in custody until commitment has been made. This is intended to remove the difficulty actually experienced in cases where the Committing Magistrate is unable to commit the accused on the same day. S. O. R. Gaz. of India 15-5-1978 Pt. II. Section 2. Ext, p. 669.
6. Section 209 is a new but corresponds to Sections 206 of the Old Code. In 1978 Clause (a) was substituted to meet the cases where commitment could not be made on the same day. The entire case law bearing on Section 206 to 220 relating to commitment proceedings has become redundant and therefore, has no bearing direct or indirect on the interpretation of this section. Section 209 of the present Code provides that where in a case instituted on a police report or otherwise, the accused appears or brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session after complying the provision of Section 207 or 208.
7. The expression "appears" means the formation of an opinion by the Magistrate on the materials on record. He is not required to weigh the evidence and the probability of the case. Once he forms the opinion after looking into the materials on record that an offence triable exclusively by a Court of Session has been made out, he is to do no more than to commit the case to the Court of Session. The expression "it appears to the Magistrate" does not contemplate that the Magistrate should hear the accused as to whether the case Is exclusively triable by the Court of Session.
8. In enacting Section 209 the intention of Legislature was to dispense with the preliminary inquiries in the cases exclusively triable to the Court of Session. The Legislature only expected from the Committing Magistrate to perform certain preliminary functions like granting copies, preparing the records, notifying the Public Prosecutor etc. (Section 207 or 2081 and then formally commit the case to the Court of Session. It appears that the object of Section 209 is to expedite the trial of Session Cases. The proceedings before the Committing Magistrate not being an "inquiry" and material before him not being "evidence", he did not possess power to appreciate the material on merits and add the accused who was not before him. In the proceedings under Section 209, Cr. P. C. the order could only be passed against the accused who either appeared or brought before the Magistrate.
(Emphasis supplied)
9. Their Lordships of the Supreme Court in Raj Kishore Prasad v. State of Bihar indicated as under: (Para 16) Thus we come to hold that the power under Section 209 Cr. P.C. to summon a new offender was not vested with 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 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, 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, 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 safeguard envisaged under subsection (4) of Section 319.
10. The expression "take cognizance of an offence" has not been defined in the Code. In its broad and literal sense it would mean "take notice of an offence" and would include
(a) the taking notice of an offence in a judicial capacity with a view to the initiation of judicial proceedings against the offender in respect of that offence, or
(b) the taking notice of an offence by a Magistrate in an exclusive capacity, or
(c) the taking notice of an offence for other purposes.
The word "cognizance" merely means 'become aware of and when, used with reference to a Court of Judge, 'to take notice of judicially'.
11. While applying judicial mind to the materials on record under Section 209 Cr.P.C the Magistrate is only required to pass the order against the accused who appeared before him or brought before him. Taking notice of an offence in a judicial capacity with a view to initiate judicial proceedings against the accused who is not before the Magistrate, is not permitted under Section 209.
12. Where involvement of persons other than those arrainged in the charge-sheet comes to the light in the course of evidence recorded during trial, the provisions under Section 319 Cr.PC can be invoked. Ratio indicated in Raj Kishore Prasad v. State of Bihar 1996 Cri LJ 2523 (supra) which is squarely applicable to the facts of the instant case, was not considered in Rajinder Prasad v. Bashir 2002 Cri LJ 90 (supra).
13. In the ultimate analysis, while placing reliance on the ratio propounded in Raj Kishore Prasad v. State of Bihar 1996 Cri LJ 2523 (supra), I hold that the learned Committing Magistrate, at the time of invoking Section 209 Cr.PC, had no jurisdiction to take cognizance against the co-accused who was not before him. Under Section 209, order could only be passed against those accused who either appeared or brought before the Committing Magistrate.
14. For these reasons, I see no infirmity in the impugned order. The revision being devoid of merits stands dismissed. I, however, grant liberty to the complainant to approach the Committal Court under Section 319 CrPC at the appropriate Juncture for the redressal of his grievance.