Delhi District Court
Rajesh @ Raju vs The State on 17 January, 2013
Rajesh @ Raju Vs The State
CR No. 155/12
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
Rajesh @ Raju
S/o Sh. Satbir Singh
Village Jharoda
New Delhi
... Petitioner
VERSUS
The State
(Govt. of NCT of Delhi) ... Respondent
CR No.155/12
Date of Institution: 12.10.2012
Reserved for orders on: 07.01.2013
Judgment announced on: 17.01.2013
JUDGMENT
1. Vide this order, I shall dispose off the revision petition filed by the petitioner against the impugned orders dated 21.09.2012 and 25.09.2012 whereby warrant has been issued against the petitioner.
2. Brief facts of the case are that FIR No. 171/12 under section 320/509/34 IPC was lodged by the complainant on 25.07.2012 and the petitioner and his father were bailed out on CR No. 155/12 1 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 26.07.2012 but subsequqently provisions of SC/ST Act were added in the said FIR and father of the petitioner was arrested and sent to judicial custody, thereafter the chargesheet was filed in the court of competent jurisdiction.
3. It is further stated that on 18.09.2012, ld. MM was pleased to issue summons against the petitioner for appearance for 21.09.2012 but summons, under which the petitioner was summoned, was lacking details and it is not clear from these summons as to under which section of IPC, the petitioner has been summoned. It is further stated that on account of this ambiguity, the petitioner could not appear before the Ld. MM and the Ld. MM issued non bailable warrants returnable for 25.09.2012. It is further alleged that this ambiguity is clarified during the hearing of bail of the petitioner, where IO stated that petitioner is chargesheeted under section 325/509/34 IPC and the case is exclusively triable by session, therefore, the Ld.MM is supposed to commit the case directly to the court of session after comply with the provisions of 207 & 209 Cr.PC. It is further stated that the Ld. MM is not supposed to issue NBWs against the petitioner, as the petitioner was on bail and notice should have been issued to the surety of the petitioner.
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4. It is further contended that the Ld. Trial Court has not appreciated the fact that the case is exclusively triable by court of session and as such the Ld. Trial Court is not empowered to issue process for appearance of the petitioner, otherwise, the Ld. MM was to commit the case directly to the sessions court after complying with the provisions of section 209 Cr.PC. The magistrate is not empowered to see that, a prima facie, case is made out or not and the Ld. Magistrate is only to see whether the case is triable by session or not. Therefore, the impugned order is passed without jurisdiction and this is liable to be set aside . In support of his contention, the Ld. Counsel for the petitioner has relied upon Sanjay Gandhi vs Union of India AIR 1978 SC 514, Raj Kishore Prasad vs State of Bihar AIR 1996 SC 1931, Jaswant Singh vs State of Rajasthan 2009(8) SCALE 275.
5. It is further contended that even the court of session is not empowered to summon any person as additional accused who is not named in FIR or not chargesheeted before committal proceedings and as per the ratio of Kishun Singh vs State of Bihar 1993 Cr. L.J. 1700 any person not chargesheeted may be summoned under section 193 Cr.PC as an accused but in the case of Ranjeet Singh vs State of Punjab AIR 1998 SC 3148, it is mandated that the court of session is not empowered to CR No. 155/12 3 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 summon any person as an additional accused not chargesheeted in the final report under section 193 Cr.PC and the Hon'ble Supreme Court took a contrary view and held that court of session has to wait up to reaching the stage of 319 Cr.PC. But in Dharmpal vs State of Haryana (2004) 13 SCC 9, the Hon'ble Supreme Court, in view of the conflicting opinion expressed in Kishun Singh' case (supra) and Ranjit Singh (Supra) referred the matter to the larger bench and such matter is pending for adjudication before the Supreme Court. Similarly, it is contended that even in Kishun Singh' case, it is held that Magistrate is not empowered to summon a person as an accused if not named in FIR till the stage of consideration of provision 319 Cr.PC is reached. It is further contended that Ld. MM has not appreciated the fact that the petitioner is neither served with summons dully, detailing the provisions of law nor he has been served personally. Otherwise, the petitioner has been served through a person with whom the petitioner is not on speaking terms. It is further contended that the Ld. MM has not appreciated the fact that the petitioner is on bail and before issuance of NBWs against the petitioner, in haste, notice should have been issued to the surety of the petitioner.
6. It is further contended that the IO has admittedly not CR No. 155/12 4 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 chargesheeted the petitioner under the provisions of SC/ST Act and only the father of the petitioner is chargesheeted under the relevant provisions of SC/ST Act and, therefore, the IO should have filed two chargesheets namely one against the petitioner under the general provisions of IPC and another chargesheet under the special provisions of law I.e SC/ST Act against the father of the petitioner as the cognizance is to be taken of the 'case' and not of the accused and this act of the investigating agency tantamounts to the misjoinder of charges.
7. On the other hand, the Ld. State Counsel has contended that after taking cognizance under section 190 Cr.PC, the Ld. Magistrate is to issue process including BWs and NBWs for securing the presence of the accused persons for supplying copies of chargesheets to the accused including other ministerial acts and that ministerial acts cannot be held as an inquiry but these act are necessary for committal proceedings to the courts of sessions as per mandate of law and without following the procedure as provided under section 204 Cr.PC, stage of section 207 to 209 Cr.PC cannot be reached and therefore, the impugned order is legal and petition deserves to be dismissed.
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8. I have heard counsel for the petitioner/accused as well as Ld. Addl. PP for the State and gone through the record.
9. The sole controversy in the present case involved is whether the Magistrate is empowered to issue summons to secure the presence of accused chargesheeted in the final report, in case, the said case is exclusively triable by the court of sessions.
10. So far the controversy involved in the case of Kishun Singh, Ranjeet Singh, Kishore Singh and Dharm Pal (supra) is concerned, the question involved in Kishun Singh was whether the court of sessions is empowered to summon a person as an accused who has not sent up for trial in the chargesheet and the Hon'ble Supreme Court held that under section 193 Cr.PC, the court of session is empowered to summon a person as an accused not sent for trial; but in Ranjit Singh case the Hon'ble Supreme Court has taken a contrary view that the court of session cannot summon any person as an accused who has not been sent up for trial in the chargesheet before reaching the stage of 319 Cr.PC. But in Dharmpal case, the Hon'ble Supreme Court in view of the contrary view expressed in the judgments of Kishun Singh and Ranjit Singh referred the matter to a larger CR No. 155/12 6 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 Bench which is still pending. But the ratio of these judgments are not applicable to the facts of the case of the petitioner as controversy in the aforesaid judgment was whether the court of session while exercising power under section 193 Cr.PC is empowered to summon any person as an accused though the said person has not sent up for trial or the court of session should wait up to the stage of 319 Cr.PC. So is the issue involved in Kishun Singh and Raj Kishore cases, but the controversy involved in the present petition is whether the Magistrate is empowered to summon an accused chargesheeted and sent up for trial, in a case exclusively triable by the court of session, in the performance of his duty to do ministerial act namely supply of copies etc. So these case laws have no relevance to the point in controversy involved in the present case.
11. Now the question is whether the Magistrate after taking cognizance of a case, which is exclusively triable by court of session is empowered to summon the accused person chargesheeted and sent up for trial or he is to straightaway commit the case to the court of session under section 209 Cr.PC. In this regard, I would like to reproduce para No. 13,14 and 15 of Ranjit Singh case (supra).
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12. 13. The change made by the new Code in Section 209 is that it is the "case" which is committed to the Court of Session and not the accused. But while committing the case to the court of Session the committing Court has a further duty which is in respect of the accused is the case. Section 209 says that the committal Court has to "remand the accused to custody until such commitment has been made" subject to the provisions relating to bail. The accused referred to in the section is the accused against whom the Magistrate has already issued summons or warrant under section 204(1)(b) of the Code. The said clause reads thus:
"If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be XXXXX XXXXX XXXXX
(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or, if he has no jurisdiction himself some other Magistrate having jurisdiction."
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14. The said power can be exercised in respect of my offence in warrant cases whether it is triable by a court of session or a Magistrate. Once, the accused is before the Magistrate, in the next stage, he has to supply copies of documents referred to in Section 207 if it is a case instituted on police report, and otherwise the documents referred to in section 208 of the Code. We have read section 209 in the aforesaid sequences of provisions.
"209 Commitment of case to Court of Session when offence is triable exclusively by it. When a case instituted on police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall
(a) commit, after complying with the provisions of Section 207 or section 208, as CR No. 155/12 9 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made.
(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c ) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."
15. Commitment of a case to the Court of Session will be completely only on compliance with the formalities enumerated in Section 209 which includes dealing with the accused in the manner mentioned therein.
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13. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1))
(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of an order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under section 190(1)(b) and direct the issue of process to the accused.
14. In Nupur Talwar vs. Central Bureau of Investigation 2012 (6) LRC, it has been observed as under:
The petitioner is aggrieved by the order dated 09.02.2011 of the Magistrate CR No. 155/12 11 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 taking cognizance under section 190 Cr.PC and issuing process under section 204 Cr.PC against her and her husband. As admittedly there are offences committed in respect of the two deceased persons, Aarushi and Hemraj, there cannot be any infirmity in the order of the Magistrate taking cognizance. Hence, the only question that we are called upon to decide is whether the Magistrate was justified in issuing the process to the petitioner and her husband by her order dated 09.02.2011.
Subsection (10) of Section 204 Cr.PC under which the Magistrate issued the process against the petitioner is extracted herein below:
(a) a summoncase, he shall issue his summons for the attendance of the accused, or
(b) a warrantcase, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a CR No. 155/12 12 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 certain time before such Magistrate or (if he has no jurisdiction himself ) some other Magistrate having jurisdiction."
15. The standard of scrutiny of the evidence which the Magistrate has to adopt for deciding whether or not to issue process under section 204 Cr.PC in a case exclusively triable by the Sessions Court has been laid down by Supreme Court in Kewal Krishan v. Suraj Bhan & Anr., 1980 (Supp) SCC 499 and it has been observed:
At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under sections 200 and 202, Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding against he CR No. 155/12 13 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This court has held in Ramesh Singh case that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the court of session, that will be a sufficient ground for issuing process to the accused and committing CR No. 155/12 14 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 them for trial to the court of session." Thus, in a case exclusively triable by the court of sesssion, all that the Magistrate has to do at the stage of section 204 Cr.PC is to see whether on a perusal of the evidence there is "sufficient ground for proceeding" against the accused and at this stage, the Magistrate is not required to weigh the evidence meticulously as if he was the trial court not is he required to scrutinise the evidence by the same standard by which the Sessions Court scrutinises the evidence to decide whether to frame or not to frame charges under section 227/228 Cr.PC.
16. Ld. MM is not supposed to pass an order by way of recording reasons in respect of the order to issue a process and the Ld. MM issuing process under section 204 Cr.PC, after examination of the material before him is to take a view that there was sufficient ground for proceeding against the persons to whom the process has been issued under section 204 Cr.PC and while exercising power under section 204 Cr.PC, the CR No. 155/12 15 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 Magistrate shall issue process (summon or warrant) if in his opinion, there was sufficient ground and therefore so long as there are materials to support the opinion of the Magistrate that there was sufficient ground for proceeding against the person to whom the process has been issued. Such exercise of the power of the Magistrate cannot be held to be illegal. Therefore in a case exclusively triable by sessions, the Ld. MM is empowered to summon each and every accused chargesheeted in the final report. No doubt that Ld. MM is not empowered to summon a person who has not been arrayed as accused or sent up for trial in the chargesheet as held in Kishun Singh (Supra) but said power of the Magistrate is only restricted to persons who have not been chargesheeted in the final report. But there is no impediment in the exercise of the powers by magistrate to summon the person/accused who has been chargesheeted in the final report.
17. Therefore, it is settled law that under section 190(a) of Cr.PC after taking cognizance of an offence, the Magistrate is empowered to issue process under section 204 Cr.PC only against such persons who have been called either under column no.2 or column no.3 of the police report filed under section 173(3) Cr.PC and name of the petitioner is admittedly CR No. 155/12 16 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 mentioned in the chargesheet and he has been sent up for trial because once cognizance has been taken by the Magistrate he takes cognizance of an offence and not the offenders, and once he takes cognizance of an offence, it is his duty to find out who the offenders really are and are sent up for trial, it is his duty to proceed against those persons.
18. It is clear from subsection (1) of Section 204 Cr.PC that the Magistrate taking cognizance of an offence shall issue the process against a person if in his opinion there is sufficient ground for proceeding against him.
19. From the above discussion, the settled proposition of law appeared that after taking cognizance under section 190 Cr.CP, Ld. Magistrate is empowered to summon the accused so chargesheeted in the chargesheet by issuing process under section 204 Cr.PC.
20. Now coming to the next contention raised by the counsel for the petitioner that the petitioner who is charged for offences under section 325/509/34 IPC, triable by Magistrate is liable to face that alongwith his father who is charged under section 325/509/34 IPC and SC/ST Act which is exclusively CR No. 155/12 17 17.01.2013 Rajesh @ Raju Vs The State CR No. 155/12 triable by the court of session and it amounts to misjoinder of charges. But this contention is falacious and is hereby rejected as section 223 Cr.PC provision as under:
223. What persons may be charged jointly.The following persons may be charged and tried together, namely: .
(d) persons accused of different offences committed in the course of the same transaction.
21. A bare perusal of this section makes it clear that person accused of different offences committed in the course of same transaction may be charged and tried together and the accused has been chargesheeted alongwith his father, who is facing charges under section SC/ST Act so in terms of section 223 the petitioner is to be charged alongwith his father as the other offences with which the petitioner is charged has happened in the course of same transaction.
22. So far as the impugned orders are concerned whereby NBWs have been issued against the petitioner is concerned, the said orders are purely interlocuatory in nature as held by Hon'ble High Court of Delhi in criminal Misc. No. 4168 of 2011 in the case of M/s D.K. Associates Vs. Rajinder Prasad.
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23. From the above discussion, I am of the opinion that counsel for the petitioners has failed to prove any illegality. So this petition is devoid of merits and is hereby dismissed.
24. Needless to say that nothing stated herein shall tantamount to an expression of my opinion on the merits of the case.
25. A copy of the order alongwith TCR be sent to the Ld. Trial Court for information and compliance.
26. File of revision petition be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya
on the 17th Day of January 2012 ASJ/ Dwarka Courts
New Delhi
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